Citation Nr: 1303290 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 10-43 387 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure and asbestos. 2. Entitlement to service connection for a neurological disorder, to include as due to herbicide exposure, asbestos, and diabetes mellitus. 3. Entitlement to service connection for a vision disorder, to include as due to herbicide exposure, asbestos, and diabetes mellitus. 4. Entitlement to service connection for colon cancer, to include as due to herbicide exposure, asbestos, and paint chemicals. 5. Entitlement to service connection for residuals of acne vulgaris. 6. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) from a June 2009 and August 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for the issues on appeal. In January 2013, the Veteran testified before the Board at a hearing held via videoconference. The Board has reviewed the transcript electronically. In January 2013, the Veteran submitted additional evidence in support of his contention that he was exposed to herbicides while in service with a waiver of RO jurisdiction. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for colon cancer, acne, and for a TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's facial scarring, a residual of acne vulgaris, had its onset in service. 2. The Veteran did not have service in the Republic of Vietnam or in the inland waterways of Vietnam. 3. The Veteran's diabetes mellitus first manifested many years after his separation from service and is not related to his service or to any incident therein, and did not manifest within one year of the Veteran's last exposure to herbicides or within one year following his separation from service. 4. The Veteran's neurological disorder, peripheral neuropathy, first manifested many years after his separation from service and is not related to his service or to any incident therein, including to exposure to herbicides. 5. The Veteran's vision disorder, diabetic retinopathy, first manifested many years after his separation from service and is not related to his service or to any incident therein, including to exposure to herbicides. CONCLUSIONS OF LAW 1. The Veteran's residuals of acne vulgaris was incurred in active service. 38 U.S.C.A. §§ 1110, 1131; 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2012). 2. The Veteran's diabetes mellitus was not incurred in or aggravated by the Veteran's active service, nor may it be presumed to have been incurred during his service. 38 U.S.C.A. §§ 1110, 1131; 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). 3. The Veteran's neurological disorder was not incurred in or aggravated by the Veteran's active service, nor may it be presumed to have been incurred during his service. 38 U.S.C.A. §§ 1110, 1131; 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). 4. The Veteran's vision disorder was not incurred in or aggravated by the Veteran's active service, nor may it be presumed to have been incurred during his service. 38 U.S.C.A. §§ 1110, 1131; 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. In this regard, February 2009 and June 2010 letters, sent prior to the initial unfavorable AOJ decisions issued in June 2009 and August 2010, advised the Veteran of the evidence and information necessary to substantiate his service connection claims as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, both letters informed the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment records and service personnel records, as well as VA and private treatment records, have been obtained and considered. The Veteran has not identified any additional, outstanding records necessary to decide his pending appeal. In this regard, the RO has obtained the Veteran's VA treatment records that begin in 1998. The Veteran testified at his hearing that prior to receiving VA treatment, he was treated privately for his cardiac disability. Such testimony comports with the record, which includes those private treatment records dated from throughout the 1990s until 1996. The Board has also reviewed the Veteran's Virtual VA treatment records, including VA records not in the claims file but considered by the RO in the most recent supplemental statements of the case issued in August and September 2012. The Board notes that the Veteran has not been afforded a VA examination with respect to his claims. However, as will be discussed below, the competent, credible, and probative evidence of record fails to demonstrate that the Veteran served in Vietnam during the Vietnam War, which is the basis of his claims for service connection. The evidence also does not suggest that he has been diagnosed with an asbestos-related disability. As will be discussed below, there is no evidence of any complaints, treatment, findings, or diagnoses referable to diabetes mellitus, a neurological disability, or a vision disability, during service. Additionally, the first evidence of a diagnosis of diabetes is dated in 1998, and of the accompanying neurological and vision disabilities in the 2000s. Moreover, the Veteran has not alleged a continuity of diabetic symptomatology since service; rather, he has contended that he is entitled to presumptive service connection based on exposure to herbicides or as due to asbestos; however, there is no evidence that he was exposed to herbicides, to include Agent Orange, or that he has been diagnosed with an asbestos-related disability. Therefore, the Board finds that there is no indication that diabetes mellitus, or persistent or recurrent symptoms of such disease, or related neurological or vision disabilities, may be associated with the Veteran's military service. Thus, a remand for examinations and/or opinions is not necessary to decide the claims. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing circumstances when a VA examination is required). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. Acne Vulgaris The Veteran contends that while in service, he experienced a severe outbreak of acne that caused him to have to take medications and use facial peels, and which left permanent scarring of the face. Service treatment records reflect that the Veteran was treated for facial acne on multiple occasions. On January 1968 entrance examination, no facial acne was reported or found on examination. In February 1968, he was noted to have acne scarring of the face. In November 1968, he was found to have severe acne vulgaris with multiple cystic formations on his face. He was prescribed an antibiotic and hydra peel. Post-service treatment records reflect that on April 2009 VA examination, the Veteran reported having acne scars on his face for the past 40 years. Physical examination demonstrated the presence of acne scars located on the face and back. The diagnosis was acne vulgaris to the face, the subjective factor was scars. In this case, the Board finds first finds that the Veteran is presumed to be of sound condition on entrance into service because on entrance examination, no acne or acne scarring was reported or found on examination. Thus, the presumption of soundness is not rebutted. See 38 C.F.R. § 3.306 (2012). Next, the Board finds that, when resolving the benefit of the doubt in the Veteran's favor, service connection for the residuals of acne vulgaris is warranted. In that regard, the Veteran was shown to suffer from severe acne in service and was found to have acne scarring related to a flare-up of acne. The Veteran and his wife testified that the Veteran experienced a break out shortly after enlisting in service, perhaps related to the environment aboard ship, and that the Veteran had sent photos home and had described the acne in letters home. The Board finds these statements to be credible because they are consistent with the service treatment records, which demonstrate acne and residual scarring. Thus, the Board finds that the Veteran had acne with residual scarring, a chronic disability in service. Moreover, the April 2009 report of VA examination confirms the presence of current acne scars caused by acne vulgaris. The Veteran reported to the examiner that those scars had been present for 40 years and there is no indication that the examiner doubted the Veteran's reported history. The Board finds that the Veteran is competent to state the length of time that he has had acne scarring and that such statements are credible, as they are consistent throughout the appeal period and are consistent with the findings in the service treatment records and on 2009 VA examination. Thus, the Board finds that the Veteran's lay statements, when considered with the 2009 VA examination findings, demonstrate continuity of symptoms since service. The evidence as a whole supports the permanent nature of the scarring, beginning in service and continuing since service. Thus, the Board finds in this case that the weight of the evidence tends to demonstrate that his current acne vulgaris scars were caused or aggravated by his service. Accordingly, service connection for acne vulgaris and residuals is allowed. Diabetes Mellitus, Neurological Disability, Vision Disability The Veteran contends that his diabetes mellitus, peripheral neuropathy, and retinopathy were caused or aggravated by his service, to include as due to herbicide and asbestos exposure. The Board notes that in the documents of record and at his January 2013 hearing, the Veteran contended that his colon cancer was due to exposure to paint materials. He has not stated that his diabetes mellitus, peripheral neuropathy, and retinopathy are due to exposure to paint materials; thus, that theory will not be considered in this decision. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, to include diabetes mellitus, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. VA regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). For purposes of applying the presumption of exposure to herbicides under 38 C.F.R. § 3.307(a)(6)(iii), the serviceman must have actually been present on the landmass or the inland waters of Vietnam during the Vietnam era. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). There is no specific statutory guidance with respect to asbestos-related claims. Nor has the Secretary promulgated any regulations in regard to such claims. VA has, however, issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, § 7.21. In December 2005, the M21-1 was rescinded and replaced with a new manual, M21-1MR, which contains the same asbestos-related information as M21-1. The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze an appellant's claim for service connection for asbestosis or asbestos-related disabilities using the administrative protocols found in the DVB Circular guidelines. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). VA's Manual 21-1MR, Part IV, subpart ii, Chapter 2, Section C essentially acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Regarding the M21-1MR's exclusion of prostate cancer from urogenital cancers that may result from inhalation of asbestos fibers, the Board notes that VA's General Counsel determined that the M21-1MR provisions discussing asbestos and asbestos-related diseases generally are not substantive in nature. VAOPGCPREC 4-2000 (April 13, 2000). Rather, the manual provisions were designed in order to provide VA with guidance in developing claims involving asbestos exposure. In this regard, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Topic 29; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). First, the Board finds that the Veteran did not have the necessary service in order to receive presumptive service connection for diabetes mellitus. Specifically, his service aboard the USS Mount Katmai constitutes "blue water" service, rather than service in the inland waterways. In May 2009, the National Personnel Records Center stated that it could not determine whether the Veteran had service in the Republic of Vietnam, but that the USS Mount Katmai had service in the official waters of Vietnam during the Veteran's service. The Veteran testified at his hearing that he did not leave the ship at anytime during his service, thus, he did not step foot in Vietnam. Moreover, the Veteran submitted a history of the USS Mount Katmai and such history does not reflect inland water service, rather, that ship's mission was to rearm operations in the South China Sea, operating from Subic Bay. Accordingly, the Board finds that the weight of the evidence is against a finding that the Veteran had service in Vietnam or in the inland waterways. Thus, the Veteran is not afforded presumptive service connection based upon herbicide exposure. The Board notes that the Veteran has submitted an article entitled, "An Examination of the Potential Exposure of Royal Australian Navy (RAN) Personnel to Polychlorinated Dibenzodioxins and Polychlorinated Dibenzofurans via Drinking Water." However, the Veteran's allegations of actual herbicide exposure based upon the ingestion herbicides through his drinking water have already been considered by the Secretary of VA in creating the "bright line" rule against presumptive exposure to deep water vessels. In Haas, supra, a blue water Veteran, who also served on the USS Mount Katmai, supplemented his argument with studies which attempted to show a direct connection between the spraying of Agent Orange on the mainland of Vietnam to the development of Agent Orange-related diseases in service members who served on the ships offshore. In particular, the claimant in Haas attempted to rely on the same 2002 study which has been submitted in this case. Although the Federal Circuit passed no judgment on the validity of studies such as the Australian study, it did highlight the VA's rulemaking with respect to this Australian study: VA scientists and experts have noted many problems with the study that caution against reliance on the study to change our long-held position regarding veterans who served off shore. First, as the authors of the Australian study themselves noted, there was substantial uncertainty in their assumptions regarding the concentration of dioxin that may have been present in estuarine waters during the Vietnam War. . . . Second, even with the concentrating effect found in the Australian study, the levels of exposure estimated in this study are not at all comparable to the exposures experienced by veterans who served on land where herbicides were applied. . . . Third, it is not clear that U.S. ships used distilled drinking water drawn from or near estuarine sources, or if they did, whether the distillation process was similar to that used by the Australian Navy. Crucially, based on this analysis, the VA stated that "'we do not intend to revise our long-held interpretation of 'service in Vietnam.'" See Haas, 525 F.3d at 1194 (citing 73 Fed. Reg. 20,566, 20,568 (Apr. 16, 2008)). Accordingly, the Board defers to the Secretary's reasonable interpretation regarding the reliability and soundness of the various scientific studies purporting to establish actual herbicide exposure to blue water Vietnam Veterans. Thus, service connection for disability caused by herbicides on a direct basis is not warranted. The Board also finds that service connection for diabetes mellitus based upon asbestos exposure is not warranted. For, diabetes mellitus is not a disease that the VA has been associated with asbestos exposure. The Veteran has not submitted any statements, medical opinions, or medical literature to support his contention that his diabetes mellitus was due to asbestos exposure. Thus, there is a complete absence of evidence to demonstrate that diabetes mellitus has any association with asbestos exposure, despite if such exposure occurred. Therefore, the Board finds that there is no competent, probative, or persuasive evidence to grant service connection for diabetes mellitus on that basis, or to further develop that claim. Lastly, service connection for diabetes mellitus, without consideration of herbicide exposure, is also not warranted. The service treatment records are negative for any indication of diabetes mellitus or an endocrine disorder. The first diagnosis of diabetes mellitus is not until 30 years following service separation. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between service discharge and medical documentation of a claimed disability is evidence against a claim of service connection). Therefore, there is a lack of chronicity in service, continuity of symptomatology since service, or nexus relating the diabetes directly to service. For all of the reasons stated above, the Board also finds that service connection for a neurological disability or a vision disability is not warranted. Those conditions, currently diagnosed as peripheral neuropathy and retinopathy and both related to diabetes mellitus, are also not shown to be directly related to service, or to herbicide exposure or asbestos exposure. Service treatment records are negative for any indication of those disorders and they are not considered to be diseases related to asbestos exposure. Moreover, only acute or subacute neuropathy is considered to be a presumptive herbicide condition, and the Veteran was not diagnosed with that condition following separation from service. Because service connection for diabetes mellitus is being denied herein, these disabilities are not warranted on a secondary basis either. The Board notes that refractive error of the eyes is not a disability for VA purposes. Accordingly, that disorder cannot be service-connected, absent evidence of aggravation by superimposed disease or injury, which is not shown in this case. 38 C.F.R. §§ 3.303(c), 4.9. The Board notes that the Veteran has contended on his own behalf that his diabetes mellitus, neurological disorder, and vision disorder are related to his military service, to include due to herbicide exposure and asbestos exposure. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's diabetes mellitus, neurological disorder, and vision disorder and any instance of his military service to be complex in nature. See Woehlaert, supra. In this regard, he does not possess the medical knowledge to attribute such disorders to any specific instance of his military service. Additionally, in a single-judge Memorandum Decision issued by the Court, it was noted that "in the absence of any medical evidence, the record must provide some evidence beyond a Veteran's own conclusory statements regarding causation to establish that the Veteran suffered from an event, injury or disease in service." Richardson v. Shinseki, No. 08-0357, slip. op. at 4 (Vet. App. May 10, 2010). While the Board recognizes that such single judge decisions carry no precedential weight, they may be relied upon for any persuasiveness or reasoning they contain. See Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992). Here, while the Veteran is competent to describe his diabetic, neurological and visual symptoms, the Board accords his statements regarding the etiology of these disabilities little probative value as he is not competent to opine on such a complex medical question and has only offered conclusory statements regarding such inquiry. Thus, the Board attributes little probative weight to such statements and finds that they are outweighed by the probative evidence of record and VA regulation and case law. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for diabetes mellitus, neurological disorder, and vision disorder. As such, that doctrine is not applicable in the instant appeal, and his claims must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for residuals of acne vulgaris is granted. Service connection for diabetes mellitus is denied. Service connection for a neurological disability is denied. Service connection for a vision disability is denied. REMAND Additional development is necessary prior to further disposition of the claim for service connection for colon cancer and for a TDIU. In May 2012, a VA examiner concluded that the Veteran's colon cancer was not due to asbestos exposure. However, the Veteran also contends that his colon cancer was caused by exposure to paint fumes including red lead, zinc chromate, and NAPA thinner. Thus, the RO should attempt to determine whether those chemicals were used by the Navy in the ate-1960s and then forward the claims file to a VA examiner for a medical opinion as to this contended etiology. With regard to the Veteran's claim of entitlement to TDIU, the Board finds that this claim is inextricably intertwined with the Veteran's pending claim for service connection for colon cancer, as the resolution of that claim might have bearing upon the Veteran's claim for TDIU. The appropriate remedy where a pending claim is inextricably intertwined with claim currently on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Contact the Joint Services Records Research Center (JSRRC), or the National Archives Records Association (NARA), or other appropriate service agency, to determine whether 1) red lead, 2) zinc chromate, or 3) NAPA thinner, were used by the Navy to paint ships from 1968 to 1969. A negative reply should be documented in the claims file and the Veteran should receive notification of the negative reply. 2. Schedule the Veteran for a VA examination to determine the etiology of the Veteran's colon cancer. The claims file should be made available to the examiner and such review should be noted. A thorough rationale should accompany the opinion reached. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's colon cancer was caused or aggravated by his service, to include exposure to toxic paint chemicals such as red lead, zinc chromate, or NAPA thinner. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim for service connection for colon cancer and for a TDIU should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2012) failure to cooperate by attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs