Citation Nr: 21041541
Decision Date: 07/09/21	Archive Date: 07/09/21

DOCKET NO. 17-00 391
DATE: July 9, 2021

REMANDED

Entitlement to service connection for colon cancer is remanded.  

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from September 1964 to June 1967, including service in the Republic of Vietnam.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2014 and August 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO).  

This matter was previously before the Board in January 2020 when it was remanded for additional development.

Entitlement to service connection for colon cancer is remanded.

The Board finds there was not substantial compliance with the Board's January 2020 remand directives where the Board directed the RO to obtain a VA medical examination and opinion.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Upon remand, a VA examination was provided in April 2020.  The examiner opined that the Veteran's colon cancer was less likely than not caused by or related to service, including to the conceded exposure to herbicide agents.  As rationale the examiner provided "medical literature currently notes no association between herbicide agents and colon cancer."  

In the rationale, the examiner failed to consider evidence of record provided by the Veteran, including a copy of a May 1990 Report to the Secretary of the Department of Veterans Affairs on the Association Between Adverse Health Effects and Exposure to Agent Orange (the "Zumwalt report").  The report found, in pertinent part, that there is adequate evidence to reasonably conclude that it is at least as likely as not there is a nexus relationship between exposure to herbicide agents and colon cancer.  In its remand directives, the Board explicitly stated that the medical opinion should specifically address the findings contained in the May 1990 Zumwalt report.

Accordingly, remand is warranted at this time such that a proper medical opinion may be obtained, and, if necessary, a VA examination, based on full consideration of the Veteran's lay assertions and supported by a complete, clearly stated rationale, to resolve the claim.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or to obtain a VA opinion, it must ensure that the examination or opinion is adequate).

In light of the remand, updated VA treatment records should be obtained.

The matters are REMANDED for the following action:

1. Obtain outstanding VA treatment records.

2. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) by an appropriate medical professional to determine the nature and etiology of his colon cancer.  The entire claims file should be reviewed by the examiner.  Thereafter, the examiner is to provide an opinion on the following:

Whether it is at least as likely as not that the Veteran's colon cancer had its onset during service or is otherwise related to service, to include as due to conceded herbicide exposure.

Consideration should be given to the May 1990 Zumwalt report, noting, in pertinent part, that there is adequate evidence to reasonably conclude that it is at least as likely as not there is a nexus relationship between exposure to herbicide agents and colon cancer.  

A complete rationale should be provided for any opinion reached.

 

 

Jarrette A. Marley

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Becton, 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.