Citation Nr: 18160397
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 12-33 996
DATE:	December 27, 2018
REMANDED
Entitlement to service connection for the cause of the Veteran's death is remanded.
REASONS FOR REMAND
The Veteran served on active duty from July 1979 to March 1982 and November 1990 to June 1991, with additional subsequent duty in the National Guard. The appellant is the Veteran’s surviving spouse. 
The appellant testified before the undersigned Veterans Law Judge during a June 2014 Board hearing. 
In November 2014, the Board remanded the claim for additional evidentiary development. In September 2015, the case was returned to the Board and the claim was denied. The appellant appealed the September 2015 Board decision to the United States Court of Appeals for Veterans Claims (Court). Per a May 2016 Joint Motion for Remand (JMR) and Order the Court vacated and remanded the claim to the Board for additional development. 
In August 2016, the Board remanded the claim for compliance with instructions in the May 2016 JMR. In February 2018, the Board remanded the claim so that a medical opinion could be obtained. In September 2018, the Board remanded the claim for an addendum opinion. Unfortunately, the claim must be remanded again as will be discussed below. See Stegall v. West, 11 Vet. App. 268, 271 (1998).
Entitlement to service connection for the cause of the Veteran's death is remanded.
In February 2018, the Board remanded this claim to obtain a VA opinion. 
In June 2018, an oncologist concluded that it is “not as least as likely as not” that the Veteran’s abdominal condition and/or back pain during service was related to, caused by, or contributed substantially or materially to his pancreatic cancer. The clinician noted that pancreatic cancer is a very aggressive disease that often causes death within months without treatment, and that the Veteran received his diagnosis in June 2009. He also noted that the Veteran was treated for back pain as early as January 1993, and that he attributed his back pain to falling off the back of a truck during Desert Storm. The clinician concluded that “it is likely that the Veteran’s pancreatic cancer was present for months and not years before being diagnosed in June 2009.”
In September 2018, the Board found that the June 2018 VA opinion was inadequate. As noted by the appellant’s representative, the opinion was focused on the Veteran’s medical records and did not address the appellant’s lay statements regarding the Veteran’s symptoms with respect to his second period of active service. See August 2018 Informal Hearing Presentation. The appellant contends that symptomatology experienced by the Veteran during and shortly after his second period of active service constituted the beginnings of his fatal pancreatic cancer. The Board remanded this claim for an addendum opinion. The Board provided the following instruction: “The provider must address the appellant’s lay statements regarding the Veteran’s symptoms during and shortly after his last period of active service, specifically the September 2010 Notice of Disagreement and the June 2014 hearing transcript.”
In October 2018, the June 2018 oncologist essentially provided the same opinion as was previously deemed insufficient. As such, an opinion from a different examiner must be obtained on remand.
The matter is REMANDED for the following action:
Obtain a medical opinion from a VA oncologist other than the examiner who provided the June and September 2018 opinions concerning the cause of the Veteran’s death. The provider must determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s abdominal symptoms and/or low back pain during his second period of active service, if any, is related to or caused/contributed substantially or materially to his pancreatic cancer. The provider must address the appellant’s lay statements regarding the Veteran’s symptoms during and shortly after his last period of active service, specifically the September 2010 Notice of Disagreement and the June 2014 hearing transcript.
 
A complete rationale must be provided for any and all opinions expressed.

 
MICHAEL D. LYON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R.N. Poulson, Counsel

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