Citation Nr: 21022046 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 17-43 803 DATE: April 14, 2021 REMANDED Entitlement to service connection for colon cancer, to include as due to herbicide agent exposure, is remanded. REASONS FOR REMAND The Veteran had active service from December 1967 to July 1969, to include active service in Vietnam. The Veteran testified before the undersigned Veterans Law Judge at a February 2020 videoconference hearing, and a transcript of the hearing has been associated with the claims file. This matter was previously denied by the Board in April 2020. The Veteran appealed the decision. Thereafter, in November 2020, the Veteran and the Secretary of VA (parties) agreed to a Joint Motion for Partial Remand (JMPR), which was ordered by the U.S. Court of Appeals for Veterans Claims (Court) in December 2020. As discussed below, the Board finds that additional development is warranted, and the matter is remanded.   Entitlement to service connection for colon cancer, to include as due to herbicide agent exposure, is remanded. In the November 2020 JMPR, the parties agreed that the Board’s April 2020 decision violated the duty to assist when it failed to obtain an examination to determine whether the Veteran’s colon cancer is etiologically related to his active service. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) (outlining the four-step analysis to determine whether a VA examination or opinion is necessary to decide a claim). The parties noted that the Veteran testified in a February 2020 Board hearing that he spoke with his doctor about whether his colon cancer was related to his Agent Orange exposure in service, and reported that the doctor indicated that he did not know. The Board previously found Veteran’s 2020 reports about his doctor’s statements credible, but went on to state that the evidence did not establish a nexus. However, the parties agreed that the Board erred when it failed to address whether these statements presented a basis for obtaining an examination to determine if Veteran’s cancer was related to his service. Because the Veteran has a diagnosis of colon cancer, is presumed to have been exposed to herbicides in Vietnam, and there is some indication that the colon cancer maybe associated with service, but insufficient medical evidence to decide the claim, the Board was required to obtain an examination or opinion under McLendon. Consequently, the parties agreed that remand is warranted for the Board to obtain an examination or opinion that addresses whether the Veteran’s colon cancer is etiologically related to his service in Vietnam, to include his presumed exposure to herbicides. The parties further agreed that the Board shall also conduct any additional development necessary, to include obtaining any outstanding treatment records related to the Veteran’s colon cancer. Given the above, the Board finds that remand is warranted in order to obtain any outstanding and relevant treatment records, and to obtain an opinion regarding the etiology of the Veteran’s colon cancer. The matter is REMANDED for the following action: 1. Ask the Veteran to identify any relevant outstanding private treatment records that he wishes VA to obtain, to specifically include, but not limited to, treatment records of Dr. Joel P. Garmon of the CARITAS Medical Center. After obtaining any necessary authorization forms from the Veteran, obtain any pertinent records identified, and associate them with the claims file. 2. Provide the claims file to a VA examiner for an opinion concerning the etiology of the Veteran’s colon cancer. If the examiner believes that an in-person examination is needed to provide an informed opinion, then an examination should be scheduled. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, where applicable: • The Veteran had active service from December 1967 to July 1969, to include active service in Vietnam. • As the Veteran served in Vietnam, he is presumed to have been exposed to herbicide agents. • The Veteran claims that his colon cancer is a result of his active service, including his presumed exposure to herbicide agents; however, colon cancer is not presumptively linked to exposure to herbicide agents. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). • At the February 2020 Board hearing, the Veteran testified that he had surgery for colon cancer in 2002. He stated that he had asked his doctor if Agent Orange exposure had led to his colon cancer and reported that the doctor told him that he would not know if it was related or not. See VBMS entry with document type, “Hearing Transcript,” receipt date 02/21/2020, at page 17. • A July 1969 Report of Medical Examination at separation from active service documents a normal clinical evaluation of the Veteran’s rectum, without any notation of colon cancer as a defect or diagnosis. Within a July 1969 Report of Medical History at separation from active service, the Veteran reported he had a tumor, growth, cyst, cancer, without further detail or information. See VBMS entry with document type, “STR - Medical,” receipt date 06/03/2008, on pages 6 and 8. • An April 2002 operative report signed by Dr. Joel P. Garmon documents the removal of a polypoid lesion and diagnosis of adenocarcinoma of the rectum, with no evidence of metastatic disease. The Veteran reported a seven-year history of intermittent rectal bleeding. See VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 04/23/2013. • VA is in the process of attempting to obtain Dr. Garmon’s treatment records. Thus, these records may have been added to the file since April 2021. • Post-service VA treatment records from October 2008 document the Veteran’s history of colon cancer with colorectal surgery in 2002. See VBMS entry with document type, “CAPRI,” receipt date 01/24/2014, on page 8. • The examiner’s review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence. Following a review of the evidence of record, including as listed above and with consideration of any additional records added to the claims file as a result of this remand, the VA examiner is requested to opine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s colon cancer is related to his active service, to include his presumed exposure to herbicide agents. Please state upon what facts and medical principles you base the opinion. A full rationale, including reference to supporting clinical data and/or medical literature as deemed appropriate, must be provided for all medical opinions given. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Chad Johnson, 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.