Citation Nr: 22018331 Decision Date: 03/29/22 Archive Date: 03/28/22 DOCKET NO. 14-01 813 DATE: March 29, 2022 REMANDED Entitlement to service connection for the cause of the Veteran's death, to include as due to exposure to herbicide agents and/or as secondary to service-connected diabetes mellitus, Type II, is remanded. REASONS FOR REMAND The appellant, the Veteran's surviving spouse, is seeking entitlement to DIC to include consideration of the issue of service connection for cause of the Veteran's death. The Veteran served on active duty in the U.S. Army from July 1969 to June 1971, to include service in Vietnam. His decorations included the Vietnam Service Medal. Unfortunately, he died in May 2011. The appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In February 2015, the appellant testified at a Board video-conference hearing before a Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the record. In April 2021, the Board wrote to the appellant and her representative to inform them that the VLJ who conducted the hearing in February 2015 was no longer employed by the Board. The appellant was offered the opportunity to testify at another Board hearing, but declined. The Board remanded the claims in January 2016 and in July 2021. 1. Entitlement to service connection for the cause of the Veteran's death, to include as due to exposure to herbicide agents and/or as secondary to service-connected diabetes mellitus, Type II, is remanded. Based on the July 2021 Board remand, the claim was remanded for another VA opinion, which was obtained in November 2021. However, the Board finds that the November 2021 VA examiner's negative etiology opinion is inadequate to decide the claim, and furthermore, not compliant with the July 2021 Board remand directives. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stegall v. West, 11 Vet. App. 268 (1998). In the July 2021 Board remand, the Board directed the examiner to: 1) address the colon cancer risk factors specific to the Veteran, 2) specifically address and consider medical articles indicating an association between diabetes and colon cancer that were submitted by the appellant, and 3) address whether it is at least as likely or not that the Veteran's colon cancer is related to his presumed herbicide exposure. Here, the Board finds that the November 2021 VA examiner did none of the aforementioned. See also February 2022 Appellant's Statement. Since the medical opinion was issued, the appellant has also submitted an additional medical literature indicating a connection between colon cancer and diabetes, for which the Veteran was service-connected, that the November 2021 examiner did not have a chance to review. See Medical Literature submitted July 2021. Furthermore, the wrong standard of review was used for the direct service connection etiology opinion. In the November 2021 direct service connection etiology opinion, the examiner stated: "Review of literature states that both human and laboratory studies have been done by the American Cancer Society to link Agent Orange to the development of various cancers. Their research concludes that exposure to Agent Orange may increase the risk of many different cancers, including colon cancer. However, no literature is found that colon cancer is directly related to herbicide exposure." See November 2021 VA medical opinion. The Board finds this opinion inadequate because it does not comport with the proper standard of review. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Therefore, there does not need to be evidence showing a "direct relation" between colon cancer and herbicide exposure for the examiner to render a positive nexus opinion. There just needs to be a 50 percent probability, or alternatively, a 50 percent improbability, that the colon cancer is related to herbicide exposure. The wrong standard of review was also used for the secondary service connection etiology opinion. In Ward v. Wilkie, 31 Vet. App. 233 (2019), the Court held that secondary service connection may be found even when it is "at least as likely as not" that the Veteran's colon cancer underwent "any" incremental increase in disability, "regardless of its permanence," due to the service-connected diabetes. The Board finds that a secondary service connection opinion comporting with the standard in Ward was not rendered, especially in light of the medical literature indicating a connection between colon cancer and diabetes that was submitted by the appellant that was unaddressed by the examiner. Based on the foregoing, the claim must be remanded for new direct and secondary service connection opinions. As this is the third remand for an adequate medical opinion, the Board finds that the opinion to be obtained should be an advisory opinion from an independent medical expert, preferably from an oncologist or an endocrinologist as requested by the appellant in the June 2019 Correspondence. See June 2019 Appellant's Correspondence; see also 38 U.S.C. § 5109; 38 C.F.R. § 3.328. The Regional Office must follow its established procedures for requesting an advisory opinion furnished by a medical school, university, or clinic on remand. The matters are REMANDED for the following action: 1. Forward the Veteran's record (including this Remand decision) to a qualified independent medical expert, preferably from an oncologist or an endocrinologist as requested by the appellant in the June 2019 Correspondence. HERE, THE VETERAN IS PRESUMED TO HAVE BEEN EXPOSED TO HERBICIDE AGENTS DURING HIS SERVICE IN THE REPUBLIC OF VIETNAM. HE WAS ALSO SERVICE-CONNECTED FOR DIABETES AT THE TIME OF HIS DEATH. Based on the review, the examiner is asked to assess the nature and etiology of the Veteran's colon cancer: (a) Is it "at least as likely as not (50 percent probability or greater)" that the Veteran's colon cancer is caused by, or otherwise related to, his time in the service, including his presumed herbicide exposure, yes or no? (b) Is it "at least as likely as not (50 percent probability or greater)" that the Veteran's service-connected diabetes contributed substantially or materially, caused, or aided or lent assistance to the production of the Veteran's death? (c) Is it "at least as likely as not (50 percent probability or greater)" that the Veteran's colon cancer was caused by the Veteran's service-connected diabetes, yes or no? (d) Is it "at least as likely as not (50 percent probability or greater)" that the Veteran's colon cancer underwent any incremental increase in disability, regardless of its permanence, due to the service-connected diabetes, yes or no? In answering the above questions, the examiner should explicitly address and consider the 11 medical articles of record which indicate that there may be a link between diabetes and the development of cancer, to include the 3 articles submitted by the appellant in May 2016, the 5 articles submitted by her in June 2019, the 2 articles cited in the June 2021 IHP, and the 1 article submitted in July 2021. The examiner must also address the colon cancer risk factors specific to the Veteran, including whether that involves the Veteran's presumed herbicide exposure during his service in Vietnam. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. THE EXAMINER SHOULD ALSO BE AWARE THAT IN RENDERING AN OPINION, IT MUST "CONTAIN NOT ONLY CLEAR CONCLUSIONS WITH SUPPORTING DATA, BUT ALSO A REASONED MEDICAL EXPLANATION CONNECTING THE TWO." SEE NIEVES-RODRIGUEZ V. PEAKE, 22 Vet. App. 295, 301 (2008). Furthermore, if medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010) (The Agency of Original Jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 2. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Cho, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.