Citation Nr: 21015053 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 05-37 934 DATE: March 16, 2021 REMANDED Entitlement to service connection for the cause of the Veteran’s death is remanded. REASONS FOR REMAND The Veteran’s active service included a tour in the Republic of Vietnam (RVN); hence, the appellant’s past assertion that his fatal cancer was due to his presumed exposure to herbicide agents while there. Two prior Board decisions (03/18/2009 BVA; 10/28/2016 BVA) denied the appeal, both of which were vacated and remanded by the Court of Appeals for Veterans Appeals (Court) pursuant to Joint Motions for Remands (JMR). Subsequent remands by the Board addressed all of the agreed-upon bases of the JMRs. See 11/28/2017 BVA Remand; 07/31/2018 BVA Decision; 11/28/2017 BVA Remand. Then, in a December 2018 decision, see 12/11/2018 BVA Decision, the Board again denied the appeal, and the appellant again appealed to the Court. In an April 2020 Memorandum Decision, the Court vacated the December 2018 Board decision and remanded the case to the Board for further review consistent with the Memorandum Decision. See 04/22/2020 CAVC Decision, P. 75-78. A Board letter notified the appellant of the Court’s decision and that her appeal had been returned to the Board, and that she had 90 days to submit any additional evidence. See 07/16/2020 Notification. She requested that the Board wait the full 90 days before taking further action, as she had additional evidence to submit. See 08/13/2020, 09/14/2020 Correspondence. For reasons not apparent in the record, the Board provided another 90-Day Letter in November 2020. See 11/03/2020 Notification. To date, the Board has not received any additional evidence from the appellant. Entitlement to service connection for the cause of the Veteran’s death is remanded. In the 2020 Memorandum Decision, the Court vacated the 2018 decision because it determined that there was no compliance with the Court’s 2017 remand, which directed that colon cancer be considered on a direct basis. See Stegall v. West, 11 Vet. App. 268 (1998). Specifically, the Court determined that, 1) the 2018 Board decision only considered colon cancer as it related to presumed herbicide agent exposure, and 2) the Board’s rejection of service connection on a direct basis was merely conclusory without an adequate discussion of reasons and bases. See 04/22/2020 CAVC Decision, P. 77. The Court noted further in the decision that it did not address the other bases asserted in the appellant’s Brief because the Duty-to-Assist error was sufficient to vacate the December 2018 Board decision. With a view towards attaining final resolution of this case, the Board is remanding the case again to address the other assertions in the appellant’s Brief to the Court. See 04/22/2020 CAVC Decision, P. 2-38. The matters are REMANDED for the following action: Send the claims file to the physician who reviewed the claims file and provided the addendum opinions in March 2018 and September 2018. Inform the physician that the Board has previously determined that the Veteran had colon cancer. Ask the physician to opine on whether it is at least as likely as not (at least a 50 percent probability) that the Veteran’s colon cancer was causally related to his active service, to include as due to his presumed exposure to herbicide agents. The Board requests that the physician address potential service connection as due to presumed exposure to herbicide agents and direct service connection separately, so that it will be clear to higher reviewing authorities such as the Court of Appeals for Veterans Claims that both were addressed. When addressing whether the Veteran’s colon cancer was due to his presumed exposure to herbicide agents, the physician is asked to discuss the relevant medical studies and literature that address a link between colon cancer and exposure to herbicide agents, and whether they apply to the Veteran’s individual case. Please remind the physician that a negative nexus opinion must have a rationale other than the fact that colon cancer is not on VA’s list of diseases deemed associated with presumed exposure to herbicide agents. (Continued on the next page)   When addressing service connection on a direct basis, the physician is asked to discuss the risk factors for colon cancer that he noted in his prior addenda and whether they applied to the Veteran and his active service. If the absence of documented treatment records are deemed significant, the physician is asked to explain why. If the physician who provided the review and nexus opinions in 2018 is no longer available, send the claims file to an equally qualified clinician. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. T. Snyder 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.