Citation Nr: 21064122 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 14-29 819 DATE: October 19, 2021 REMANDED Entitlement to service connection for the Veteran's cause of death, including entitlement to dependency and indemnity income (DIC), is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1966 to August 1986. The Veteran died in November 2011. The Appellant is the surviving spouse. In April 2021, the Board remanded this case for additional development. The Board finds that there has not been substantial compliance with the Board's previous remand directives. Remand for further development is required. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for the Veteran's cause of death, including entitlement to dependency and indemnity income (DIC), is remanded. In April 2021, the Board remanded the claim because the January 2019 VA examiner "did not address whether colon cancer was directly related to service or exposure to herbicide agents on other than a presumptive basis. Further, the examiner made no findings as to whether other causes of death were related to service or any event during service." The Board requested medical opinion as to the Veteran's cause of death. Specifically, the Board asked that the VA examiner opine whether the Veteran's cause of death, to include colon cancer, was related to service or any event during service, to include exposure to herbicide agents. The Board also requested an opinion as to whether "any cause of death had its onset in service, was aggravated by service, or was otherwise related to any incident of service." In a July 2021 VA examination report, the examiner listed several causes of colon cancer to include genetic factors, environmental exposures (including diet), and inflammatory conditions of digestive tract. The examiner stated that "[c]urrent research indicate[d] that genetic factors ha[d] the greatest correlation to colorectal cancer. Hereditary mutation of the APC gene [wa]s the cause of familial adenomatous polyposis (FAP), in which affected individual's carr[ied] an almost 100% risk of developing colon cancer by age 40 years." However, the examiner stated that there was no objective medical evidence to attribute the Veteran's colon cancer to any one or group of causes to include service or exposure to herbicides. The examiner stated that relating colon cancer to any particular exposure was speculative. The examiner opined that "the cause of [the Veteran's] colon cancer that led to the other causes of death [wa]s unknown." The Board finds the opinion incomplete. The Board notes that the Veteran's death certificate lists acute respiratory failure as the principal cause of death; fungemia and methicillin-resistant staphylococcus aureus pneumonia as contributing causes of death; and metastatic colon cancer and kidney failure as contributory causes of death. The examiner discussed the causes of colon cancer and opined that colon cancer was not related to service. However, the examiner did not opine as to whether any of the contributory causes of death had their onset in service, were aggravated by service, or were otherwise related to any incident of service. The Board notes that a remand confers on the Veteran the right to compliance with the terms of that remand. Stegall v. West, 11 Vet. App. 268 (1998). There has not been substantial compliance with the Board's prior remand instructions. Therefore, additional remand is necessary. The Board notes that in July 2021, the Appellant submitted a medical treatise which suggests a link between colon cancer and herbicide agent exposure. On remand the examiner should review the submitted information. The matter is REMANDED for the following action: 1. After obtaining any necessary releases, obtain all relevant VA and private treatment records not already associated with the claims file. All attempts to locate records must be documented in the claims file. 2. Then, have the claims file reviewed by a qualified examiner who has not previously furnished an opinion in this case to determine whether it is at least as likely as not (50 percent probability or greater) that metastatic colon cancer was causally or etiologically related to the Veteran's active service, to include conceded herbicide agent exposure. The examiner must review and discuss the medical treatise, submitted by the Appellant, which suggests a link between colon cancer and herbicide agent exposure. The examiner is advised that a negative opinion regarding a relationship between metastatic colon cancer and herbicide agent exposure based solely on the fact that VA has not recognized metastatic colon cancer as presumptive disease related to herbicide exposure, is not an adequate opinion. A clearly stated rationale with references to the record, diagnostic tests, and medical literature should be provided. The previous examination listed genetic factors, environmental exposures (including diet), and inflammatory conditions of the digestive tract as risk factors for colon cancer. The examiner also stated that for those with a genetic factor, the colon cancer would manifest by age 40. The examiner should discuss each of those risk factors and whether they are present in this case in determining the likelihood that colon cancer is related to exposure to herbicide agents during service. The examiner should also discuss the age of onset of colon cancer and whether that affects the likelihood of the Veteran's colon cancer being attributed to genetic causes. The examiner should also opine whether it is at least as likely as not (50 percent probability or greater) that acute respiratory failure, fungemia, methicillin-resistant staphylococcus aureus pneumonia, or kidney failure had their onset in service, were aggravated by service, or were otherwise related to any incident of service. The examiner is advised that a rationale based solely on the absence of service treatment records documenting any diagnosis or treatment for acute respiratory failure, fungemia, methicillin-resistant staphylococcus aureus pneumonia, or kidney failure is conclusory and inadequate. A clearly stated rationale with references to the record, diagnostic tests, and medical literature should be provided. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.O., Associate Counsel 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.