Citation Nr: 1806508 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-10 604A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for colon cancer. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for tremors of the hands and legs. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A-L Evans, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to November 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2012 rating decision of the Los Angeles, California, Regional Office (RO) of the Department of Veterans Affairs (VA). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that further development is required prior to adjudicating the Veteran's claims. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). VA laws and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). The Veteran's service in Vietnam is confirmed; therefore Agent Orange exposure is conceded. For these Vietnam War Veterans, diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. For purposes of this case, the Board notes that the list of diseases associated with exposure to certain herbicide agents does not include colon cancer, hypertension and tremors of the hands and legs disabilities. 38 C.F.R. § 3.309(e). As such, the Veteran cannot avail himself of the presumptive provisions to establish entitlement to service connection for the claimed condition. Nevertheless, VA has a duty to assist the Veteran in the development of the claim by seeking a medical opinion on the question of the nature and etiology of the claimed disabilities. Service treatment records are silent for complaints or treatment for any colon cancer, hypertension and tremors of the hands and legs problems. Post service treatment records show that the Veteran underwent a colonoscopy in June 2010 to remove a polyp which had an invasive tumor. Private medical records show treatment for and a diagnosis of hypertension since February 2000. Private treatment records also show a diagnosis in April 2006 of tremors in his right hand. The Veteran has not been afforded a VA examination in connection with his claims for service connection. An examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.159(c)(4)(i). Therefore, the Board finds that a VA examination and medical opinion are necessary for determining the nature and etiology of any claimed disabilities that may be present. Private treatment records contained in the record are dated up to July 2010. On remand, the Veteran should also be provided with an opportunity obtain or ask VA to obtain any further private (non-VA) medical records relevant to the remanded claims. The RO should make an attempt to obtain private treatment records regarding treatment of the Veteran for his claimed disabilities after securing any necessary authorization. Additionally, any and all VA medical records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers, both private and VA, who may have additional records pertinent to the remanded claims. After the Veteran has signed any appropriate releases, any relevant records identified that are not duplicates of those already contained in the claims folder should be requested. If any requested records cannot be obtained, the Veteran should be notified of such. 2. Schedule the Veteran for an examination to determine the nature and etiology of any current colon cancer, hypertension and tremors of the hands and legs disabilities found to be present. The entire claim file must be reviewed by examiner. All indicated tests and studies should be conducted. Following an examination of the Veteran and a review of the claims file, the examiner must respond to the following: a. Identify all of the Veteran's current disabilities. b. Then, provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any disability found upon examination had its onset during, or is otherwise related to, the Veteran's active service. A complete rationale must be provided for all opinions expressed and conclusions reached. 3. Then, the RO should readjudicate the Veteran's claims on appeal. If any of the claims remain denied, a Supplemental Statement of the Case must be furnished to the Veteran and he must be afforded the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all matters 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 (2012). _________________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (2012), 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) (2017).