Citation Nr: 21042067 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 20-18 795 DATE: July 11, 2021 REMANDED Entitlement to service connection for colon cancer is remanded. Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1983 to May 1987. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2018 by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for colon cancer. First, the record reflects that the Veteran has received private treatment for his colon cancer, as private treatment records from 2016 were submitted by the Veteran. However, a single record submitted in June 2021 indicates that the Veteran has potentially continued to receive treatment from a private provider for his colon cancer. As such, the Board finds that a remand is warranted so that attempts may be made to contact the Veteran and request that he either submit or authorize for release any relevant outstanding private treatment records. 38 C.F.R. § 3.159(c)(1). Second, the Veteran was not provided with a VA examination during the period on appeal. However, treatment records reflect that the Veteran was been treated for colon cancer during the period on appeal and that the Veteran was originally diagnosed with cancer in 1991, which was only four years following his separation from service. Further, the Board notes that the Veteran's service treatment records are not available. When records have been lost due to no fault of the Veteran, there is a heightened obligation to assist the Veteran in the development of the case. See Washington v. Nicholson, 19 Vet. App. 362, 36970 (2005); Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). In light of the close proximity of the original diagnosis to the Veteran's separation, and the heightened duty to assist in this case, the Board finds that a remand is necessary so that a medical opinion may be obtained concerning the etiology of the claimed colon cancer. 38 C.F.R. § 3.159(c)(4); see McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for a bilateral foot disability, bilateral hearing loss, and a low back disability. As discussed above, the evidence of record shows that the Veteran received treatment through a private provider, with the most recent records associated with the file dating from 2016. However, in June 2021 the Veteran submitted another private treatment record reflecting that he potentially has continued to receive treatment from a private provider since 2016. As such, there may be outstanding private treatment records relevant to the claimed foot, low back, and hearing loss disabilities. The Board notes that the record clearly notes current treatment for colon cancer, but not for a low back disability, bilateral foot disability, or a low back disability. However, the Board also cannot definitively state that any potentially outstanding records would not be relevant to the other claimed disabilities. Further, as discussed above the Veteran's service treatment records have been determined to be unavailable, and therefore there is a heightened obligation to assist the Veteran in the development of the case. See Washington, 19 Vet. App. at 36970; Cromer, 19 Vet. App. at 217. In light of this heightened obligation and the fact that is not clear whether the Veteran receives private treatment for his other claimed disabilities or not, the Board finds that the claims must be remanded so that the Veteran can be contacted and requested to submit or authorize any potentially relevant private treatment records. 38 C.F.R. § 3.159(c)(1). The matters are REMANDED for the following action: 1. Contact the Veteran and request that he submit or authorize for release all private treatment records relevant to his claimed colon cancer, low back disability, bilateral foot disability, and hearing loss. For all records authorized for release, if the search for these records is negative, the Veteran must be informed in writing in accordance with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's colon cancer. The examiner should answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the colon cancer is causally related to the Veteran's active service? Attention is invited to private treatment records reflecting treatment for colon cancer in 2016, with notations of an initial diagnosis of cancer in 1991, four years after the Veteran's separation from service. A detailed rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wendell, 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.