Citation Nr: 20007682 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 19-18 135 DATE: January 30, 2020 ORDER The appeal concerning the issue of entitlement to service connection for soft tissue sarcoma is dismissed. REMANDED Entitlement to service connection for colon cancer is remanded. FINDING OF FACT At his December 2019 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences of such action withdrew his appeal as to the issue of entitlement to service connection for soft tissue sarcoma. CONCLUSION OF LAW The criteria for withdrawal of the appeal regarding the claim of entitlement to service connection for soft tissue sarcoma are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1965 to May 1968, including service in Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Notably, the Veteran’s notice of disagreement is timely as to this earlier adjudication of his claim (it was also considered in February 2018), and the Board will afford him the benefit of the doubt in this regard. In December 2019, the Veteran testified before the undersigned Veterans Law Judge. 1. The appeal concerning the issue of entitlement to service connection for soft tissue sarcoma is dismissed. The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative on the record at a hearing. In the present case, the Veteran withdrew his appeal as to the issue of entitlement to service connection for soft tissue sarcoma on the record at his December 2019 Board hearing. See Board Hearing Transcript at 2. Accordingly, he has withdrawn the appeal as to this issue and, hence, there remains no allegation of error of fact or law for appellate consideration. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. Accordingly, the Board does not have jurisdiction to review the appeal on this issue and it is dismissed. REASONS FOR REMAND 2. Entitlement to service connection for colon cancer is remanded. The Veteran indicates that his colon cancer is the result of his presumed exposure to herbicide agents in service. While colon cancer is not a condition that is presumptively associated with herbicide agent exposure, the Veteran may nevertheless still be awarded service connection for an herbicide-related disease if the evidence of record demonstrates a positive correlation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact incurred during service). Given the Veteran’s current diagnosis and in-service herbicide agent exposure, the duty to obtain a VA examination is triggered on remand. Any outstanding treatment records should also be secured. The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records, specifically from Sutter Health - Davis. 3. Then schedule the Veteran for a VA examination to determine the nature and etiology of his colon cancer. The entire claims file should be made available to the examiner. All findings should be reported in detail. Following a review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s colon cancer had its onset in or is otherwise related to service, to include as a result of conceded herbicide agent exposure therein. In addressing this question, please do not rely solely on negative service treatment records and/or the fact that presumptive service connection is not available for the condition in question, as that will result in an inadequate opinion. A complete rationale should be given for all opinions and conclusions expressed. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.S. Mahoney The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.