Citation Nr: 25001082 Decision Date: 01/28/25 Archive Date: 01/28/25 DOCKET NO. 19-25 569 DATE: January 28, 2025 REMANDED Entitlement to service connection for colon cancer manifested by malignant intestinal neoplasms, to include as due to exposure to asbestos and herbicide agents, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1967 to September 1970, to include service in the Republic of Vietnam. The Board thanks him for his service to our country. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case has a long procedural history. The Veteran sought service connection for colon cancer in a May 2018 VA Form 21-526EZ. The RO denied his claim in a July 2018 rating decision and the Veteran filed a timely notice of disagreement. The RO issued a Statement of the Case in June 2019 which continued to deny the Veteran's claim. The Veteran filed a substantive appeal in August 2019 and his appeal was certified to the Board in October 2019. An April 2018 Board decision remanded the Veteran's claim for an adequate medical opinion. In a December 2023 Supplemental Statement of the Case, the RO denied the Veteran's claim. The Veteran's claim was returned to the Board and in an April 2024 decision, the Board remanded the Veteran's claim for an adequate medical opinion. In a November 2024 Supplemental Statement of the Case, the RO denied the Veteran's claim. The Veteran's claim has been returned to the Board, and the Board finds that the prior remand directives have been substantially complied with ant the matter is again properly before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Although further delay is regrettable, the Board finds a remand is necessary to ensure due process is followed and there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Of note, the Board acknowledges that on December 18, 2024, VA received from the Veteran's representative an appellate brief which contained hyperlinks to content that is not otherwise part of the record on appeal; however, that content was not accessed nor considered as part of the record before the Board. See Bowey v. West, 11 Vet. App. 106, 108-09 (1998) (holding that the mere reference to non-VA documents is insufficient to incorporate them into the record). 1. Entitlement to service connection for colon cancer. The Veteran and his representative contend the Veteran's colorectal cancer is etiologically associated with in-service exposure to asbestos and herbicide agents. See May 2018 VA Form 21-526EZ; and see December 2024 Appellate Brief. The Veteran's representative contends the Veteran was exposed to these hazardous chemicals due to his military occupational specialty (MOS) of construction electrician and his service in Vietnam. See December 2024 Appellate Brief. The Veteran's military personnel records demonstrate service in the Republic of Vietnam from October 1968 to October 1969. The Veteran's DD Form 214 shows his MOS as construction electrician. A September 2023 VA memorandum concedes the Veteran's exposure to herbicide agents due to his service in the Republic of Vietnam and concedes asbestos exposure due to his MOS as a construction electrician. The Veteran's service treatment records do not indicate complaints, diagnosis, or treatment of colon cancer. The Veteran's private treatment records show diagnosis and treatment for metastatic colon cancer (gastrointestinal) stage III. See June 2023 Medical Treatment Record - Non-Government Facility; see also August 2024 Medical Treatment Record - Non-Government Facility. In May 2018, the Veteran submitted a letter from Dr. R.P., his private oncologist. While Dr. R.P. explained he was the Veteran's treating physician, Dr. R.P. did not provide a rationale for his opinion that the Veteran's colon cancer is at least as likely as not caused by military service. Accordingly, the Board finds the May 2018 letter from Dr. R.P. inadequate for adjudicative purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). At a July 2018 VA examination, the Veteran was diagnosed with intestinal neoplasm. The VA examiner opined that the Veteran's colon cancer was less likely than not related to his active service because colon cancer was not a presumptive diagnosis related to herbicide exposure. A VA Acceptable Clinical Evidence (ACE) examination based on records review was obtained in August 2023. The VA examiner opined that the Veteran's colon cancer was less likely than not related to his active service because colon cancer is not a presumptive diagnosis covered and related to exposure to herbicide agents. The July 2018 and August 2023 VA opinions are inadequate for adjudicative purposes. The United States Court of Appeals for Veterans Claims has held, in the context of an opinion considering the issue of herbicide agent exposure, that "a medical nexus opinion finding a condition is not related to service because the condition is not entitled to presumptive service connection, without clearly considering direct service connection, is inadequate on its face." See Stefl v. Nicholson, 21 Vet. App. 120 (2007). In November 2023, the Veteran's records were reviewed for an addendum VA medical opinion. The VA examiner opined that the Veteran's colon cancer is less likely than not caused by or aggravated by his service. As her rationale, the examiner explained that a nexus could not be explained with, "the available objective evidence in the medical literature at this point." The November 2023 VA opinion is inadequate for adjudicative purposes because the rationale is insufficient. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The April 2024 Board remand directed the RO to obtain a medical opinion. In April 2024, VA sought an addendum medical opinion. The Veteran was diagnosed with intestinal neoplasm. The VA examiner opined that the Veteran's colon cancer was less likely than not related to his active service. The VA examiner also opined that the Veteran's colon cancer was less likely than not related to a toxic risk exposure activity. As his rationale for both opinions, the VA examiner explained that there was no evidence the Veteran's colon cancer had its onset during service. The Board finds the April 2024 proffered opinions inadequate because they are conclusory and are not supported by an adequate rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (an adequate medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record). The Board finds that the failure to obtain an adequate medical opinion constitutes a pre-decisional duty to assist error, and therefore a remand is warranted so that an addendum medical opinion may be obtained. 38 C.F.R. §§ 3.159(c), 20.802(a). The matters are REMANDED for the following action: 1. Obtain an addendum opinion, if possible from a clinician who has not previously offered an opinion for this matter. If the clinician determines that an examination is warranted, then one should be scheduled. Ask the clinician to provide the following opinions: (a.) Please identify all currently diagnosed intestinal conditions. (b.) For each intestinal condition diagnosed, the clinician should offer an opinion as to whether the disability is causally related to the Veteran's service, to include conceded exposure to herbicides and asbestos while on active service. The examiner must consider the total potential exposure through all applicable military deployments and the synergistic, combined effect of all toxic exposure risk activities. The examiner must provide a complete rationale for his or her opinion(s). If the requested opinion cannot be provided without resorting to mere speculation, the examiner should explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. Christopher A. Wendell Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Houman 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.