Citation Nr: 1754750 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 13-31 717 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for rectal cancer, to include as due to herbicide agent exposure. 2. Entitlement to service connection for chronic myelogenous leukemia (CML), to include as due to herbicide agent exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H. Daus, Associate Counsel INTRODUCTION The Veteran had qualifying service from July 1970 to January 1972, including in the Republic of Vietnam (RVN). See DD-214. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which continued to deny service connection after a Nehmer review of a December 2009 rating decision issued by the VARO in Chicago, Illinois. See 38 C.F.R. § 3.816 (2017); Nehmer v. United States Veterans Admin., 284 F.3d 1158 (9th Cir. 2002); Nehmer v. United States Veterans Admin., 32 F. Supp. 2d 1175 (N.D. Cal. 1999); Nehmer v. United States Veterans Admin., 712 F. Supp. 1404 (N.D. Cal. 1989). In August 2017, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. The appeals are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends that his rectal cancer and CML were caused by service, including by exposure to herbicide agents in RVN. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e); January 2011 notice of disagreement; September 2013 Correspondence; August 2017 transcript. However, the evidence currently of record is insufficient to decide the claims, as the Veteran's private physicians have indicated possible nexuses to service and the Veteran: (1) has never been afforded a VA medical nexus opinion for rectal cancer; and (2) was afforded an inadequate VA medical nexus opinion for CML. See January 2010 letter by Dr. Guaglianone; February 2010 VA hemic disorders opinion; March 2010 letter by Dr. Total; McLendon v. Nicholson, 20 Vet. App. 79 (2006); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). As such, further development is required. Accordingly, the case is REMANDED for the following action: 1. Obtain an opinion regarding whether the Veteran's rectal cancer was at least as likely as not (50 percent probability or greater) caused or aggravated beyond natural progression by his service, including, but not limited to, herbicide agent exposure. The opinion must analyze the attempted private opinions of record, that tend to show a possibility of a connection: (a) January 2010 letter by Dr. Guaglianone; and (b) March 2010 letter by Dr. Total. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between service and the currently diagnosed cancers, and alternatively the exposure to herbicides. Likewise, the mere fact that a presumption has not been established for the particular disorders at issue is not dispositive of the issue of nexus. Consideration must still be given to the exposure. 2. Obtain an addendum opinion regarding whether the Veteran's chronic myelogenous leukemia (CML) was at least as likely as not (50 percent probability or greater) caused or aggravated beyond natural progression by his service, including, but not limited to, herbicide agent exposure. The opinion must analyze the attempted private opinions of record, that tend to show a possibility of a connection: (a) January 2010 letter by Dr. Guaglianone; and (b) March 2010 letter by Dr. Total. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between service and the currently diagnosed cancers, and alternatively the exposure to herbicides. Likewise, the mere fact that a presumption has not been established for the particular disorders at issue is not dispositive of the issue of nexus. Consideration must still be given to the exposure. 3. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. The Veteran has the right to submit additional evidence and argument on the remanded matters. See Kutscherousky v. West, 12 Vet. App. 369 (1999). All remanded claims must be handled expeditiously. See 38 U.S.C. §§ 5109B, 7112 (West 2012). _________________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Only a Board decision is appealable to the United States Court of Appeals for Veterans Claims. See 38 U.S.C. § 7252 (West 2012). This remand is in the nature of a preliminary order and does not constitute a Board decision on the merits of your appeals. See 38 C.F.R. § 20.1100(b) (2017).