Citation Nr: 1314972 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 09-15 455 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for colon polyps/cancer, to include as due to exposure to herbicides. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1965 to June 1967 and from September 1967 to January 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement (NOD) was received in October 2008. A statement of the case (SOC) was issued in February 2009. The Veteran perfected his appeal in March 2010. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran is seeking entitlement to service connection for colon polyps/cancer. The Veteran asserts that his colon polyps/cancer are the result of his active duty service, to include exposure to herbicides. The Veteran served in Vietnam from June 1966 to June 1967 and from August 1969 to August 1970. Agent Orange exposure is presumed. The Board notes that colon polyps/cancer are not a disease associated with exposure to herbicide agents as listed in the presumptive service connection provisions of 38 C.F.R. § 3.307, 3.309(e). However, VA's consideration of the claim does not end with this finding, as these presumptive provisions are not the only way the Veteran can establish service connection for colon polyps/cancer. The United States Court of Appeals for the Federal Circuit has determined that a Veteran is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Therefore, the Veteran may still potentially establish a nexus between his colon polyps/cancer and service even though the disability is not on the presumptive list for herbicide exposure. In this regard, the Board notes the Veteran has not been afforded a VA examination in connection with his claim for colon polyps/cancer. In light of 38 C.F.R. § 3.159 and McLendon v. Nicholson, 20 Vet. App. 79 (2006), a medical opinion is needed on the matter of whether it is at least as likely as not (a probability of at least 50 percent) that the Veteran's colon polyps/cancer are related to his service, to include presumed Agent Orange exposure. Beforehand, however, any additional relevant medical records of treatment the Veteran has received for colon polyps should be obtained. Specifically, in a VA treatment note from January 2011, it is noted that the Veteran had a colonoscopy done in September 2010 by Dr. Canales. Record of this procedure is not contained in the Veteran's claims file (or on Virtual VA). The most current treatment record from Dr. Canales is dated May 2007. Updated treatment records from Dr. Canales must be secured for the record. 38 C.F.R. § 3.159(c)(1). Accordingly, the case is REMANDED for the following actions: 1. The RO should obtain any VA treatment records (not already of record) relevant to the appeal from the Syracuse VA medical center (and any affiliated outpatient clinic) since July 2011. 2. The RO should contact the Veteran and request that he complete and return the appropriate authorization so that VA can obtain updated relevant treatment records from Dr. Canales. The RO should then obtain copies of all treatment records to associate with the claims file. If any records sought are unavailable, the reason for the unavailability must be given (e.g., did not exist/were destroyed). 3. After the above development is completed, the Veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of the claimed colon polyps and/or colon cancer. It is imperative that the claims file (and a copy of this remand) be made available to the examiner for review in conjunction with the examination. Based on examination of the Veteran and review of his claims file, the examiner should respond to the following: (a) Please state whether the Veteran has colon polyps and/or colon cancer, and if so, (b) Please provide an opinion whether it is at least as likely as not (50 percent or higher degree of probability) that the Veteran's colon polyps/colon cancer is casually related to the Veteran's active duty service, to include exposure to herbicides. The examiner must provide an explanation of rationale for all opinions provided. If any requested opinion cannot be offered without resorting to mere speculation, the examiner should indicate such in the examination report and explain why a non-speculative opinion cannot be offered. 4. In the interest of avoiding further remand, the RO should then review the examination report to ensure that the above questions have been clearly answered and a rationale furnished for all opinions. If not, appropriate action should be taken to remedy any such deficiencies in the examination report. 5. The RO should then readjudicate the issue on appeal. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).