Citation Nr: 21013926 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 17-37 333 DATE: March 10, 2021 REMANDED The issue of entitlement to service connection for colon cancer is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1967 to November 1971, to include service in the Republic of Vietnam. In May 2019, the Veteran testified under oath at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In December 2020, the Board remanded the issue on appeal for further development. For the reasons outlined below, the Board finds that remand is again needed. Entitlement to service connection for colon cancer. The Board finds that a new VA medical opinion is needed. In the December 2020 remand, the Board directed that a new medical opinion be obtained, as it found the August 2020 opinion to be inadequate for the following reasons. Specifically, that while the August 2020 medical examiner opined that the Veteran’s colon cancer was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, in the rationale, the VA examiner stated: “The relationship between colon cancer herbicides have been studied previously. Based on those preliminary studies it was not on the presumptive list of conditions determined to possibly be related to agent orange.” The examiner further stated that “literature does not establish any clear evidence of a causal relationship between colon cancer and Agent Orange exposure.” (emphasis added). The Board found that while the opinion uses the correct legal standard of “less likely than not” the rationale relies on the wrong legal standard by requiring clear evidence of a causal relationship, a standard that is higher than the legally required one. As such, the Board found a new opinion that applies the correct legal standard was needed. However, following the Board remand, the January 2021 VA opinion obtained from the same examiner is almost identical to the August 2020 opinion, and it includes the “clear evidence” language. While the examiner did explain that he had “reviewed a few additional documents submitted,” he noted further that “[t]here has been no documentation that would alter the original medical opinion I submitted.” As the new opinion contains the “clear evidence” language previously identified by the Board as inadequate, the Board must once again remand for a new VA opinion. In addition, the Board notes that in the December 2020 remand, it specifically directed that the new medical opinion be obtained “by an examiner different than the one who provided the August 2020 opinion.” This was not done, and the Board notes that it is reiterating this request in the directives below. Finally, the Board asks that any outstanding treatment records be obtained and associated with the claim file. In the May 2019 remand, the Board stated that the Veteran’s former representative submitted correspondence in August 2017, indicating that there were outstanding service treatment records from the Veteran’s service in the Republic of Vietnam. The Board directed that any outstanding treatment records should be obtained and associated with the claim file. However, it is unclear to the Board what attempts were made to obtain these service treatment records following the May 2019 remand. Accordingly, the Board will once again remand to attempt to obtain these records. The matter is REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any service, VA and/or private treatment records, pertaining to the issue on appeal. In particular, the Board notes that the Veteran’s former representative submitted correspondence in August 2017, indicating that there were outstanding service treatment records from the Veteran’s service in the Republic of Vietnam. Any outstanding treatment records should be obtained and associated with the claim file. All efforts should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Upon completion of the above, obtain an addendum medical opinion from a NEW examiner as to the nature and etiology of the Veteran’s claimed colon cancer. To the extent possible, the examiner should be an oncologist, or an equally qualified clinician. The examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s colon cancer is related to service, to include the conceded exposure to herbicide agents. The examiner should be made aware that an opinion based on the fact that colon cancer is not a presumptive disability for exposure to herbicide agents will not be considered adequate. The examiner should also be aware that the correct legal standard is “at least as likely as not” and “clear evidence” of a relationship is not needed nor the correct legal standard. The examiner should be given access to the claim file. The examiner should state that a review of the claim file was completed. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. A detailed rationale is requested for all opinions provided. 3. If upon completion of the above action the issue is denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Foster, 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.