Citation Nr: A25019461 Decision Date: 03/04/25 Archive Date: 03/04/25 DOCKET NO. 241126-493549 DATE: March 4, 2025 ORDER Entitlement to an earlier effective date prior to April 11, 2023, for the initial grant of service connection for tinnitus is denied. Entitlement to service connection for lung cancer is denied. REMANDED Entitlement to service connection for diabetes mellitus, type II is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for colon cancer is remanded. FINDINGS OF FACT 1. A January 2015 rating decision that denied service connection for tinnitus was final. 2. The additional VA medical records obtained after the January 2015 rating decision are not "material" for the purposes of 38 C.F.R. § 3.156 because they do not speak to an element in dispute, and therefore do not affect the outcome of the original June 9, 2014, claim for entitlement to service connection. 3. On April 11, 2023, the Veteran filed a complete and proper supplemental claim for service connection for tinnitus. 4. The Veteran does not have a diagnosis of lung cancer. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to April 11, 2023, for the award of service connection for tinnitus have not been met. 38 U.S.C. §§ 5107, 5110, 7105; 38 C.F.R. §§ 3.102, 3.155, 3.400, 3.2501, 20.302, 20.1103. 2. A lung cancer disability was not incurred or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1967 to June 1970. There are three rating decisions on appeal, which were all issued as part of the modernized review system, also known as the Appeals Modernization Act (AMA), applies. First, as to the claim for tinnitus, in December 2023, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of tinnitus most recently addressed in the May 2023 rating decision. In February 2024, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received and granted the claim based on the evidence of record at the time of that decision. Therefore, the Board may only consider the evidence of record at the time of the February 20, 2024, decision on appeal. In the first November 24, 2024, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Lane docket. Therefore, the Board may only consider the evidence of record at the time of the February 2024 AOJ decision. See 38 C.F.R. § 20.303. If evidence was submitted during the period after the AOJ issued the decision and prior to the date the Board received the VA Form 10182, the Board did not consider it in its decision. See 38 C.F.R. §§ 20.300, 20.303, 20.801. As to the claims for hypertension and diabetes mellitus type II, in June 2023, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of hypertension and diabetes mellitus type II. In December 2023, the AOJ issued the supplemental claim decision on appeal, which found that new and relevant evidence had not been received. In December 2023, the Veteran submitted another VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of hypertension and diabetes mellitus type II. On February 17, 2024, the AOJ issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received but continued to deny the claims. In February 2024, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the February 17, 2024, decision. On February 23, 2024, the AOJ issued the HLR decision on appeal, which considered the evidence of record at the time of the prior February 17, 2024, rating decision. Therefore, the Board may only consider the evidence of record at the time of the February 17, 2024, rating decision, which was subsequently subject to higher-level review. See 38 C.F.R. § 20.303. In the second November 24, 2024, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Lane docket. Therefore, the Board may only consider the evidence of record at the time of the February 2024 AOJ decision. See 38 C.F.R. § 20.303. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review and prior to the date the Board received the VA Form 10182, the Board did not consider it in its decision. See 38 C.F.R. §§ 20.300, 20.303, 20.801. As for the claims for lung cancer and colon cancer, in the second November 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the December 2023 AOJ decision on appeal as to those claims. See 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. See 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. See 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claims of hypertension, diabetes mellitus type II, and colon cancer, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. See 38 C.F.R. § 3.103(c)(2)(ii). In Williams v. McDonough, 37 Vet. App. 305 (2024), the United States Court of Appeals for Veterans Claims (Court) held the Board should not adjudicate an appeal until the time for the appellant to switch Board dockets has ended. This period ends either one year from the date the AOJ mailed notice of the decision on appeal, or 60 days from the date the Board received the VA Form 10182, whichever date is later. See 38 C.F.R. § 20.202(c)(2). Here, the Board may proceed with adjudication because the period for the Veteran to request to switch dockets has passed. Further, as to the claims for diabetes mellitus type II and hypertension, the Board notes that a March 2008 Board decision for diabetes mellitus type II and the January 2015 rating decision that denied the Veteran's claim for diabetes mellitus type II and hypertension became final. In the February 2024 rating decision, the previously denied claims were reopened and readjudicated by the AOJ. As this is a favorable finding binding on the Board, the Board may proceed with adjudicating the merits of the claim. See 38 C.F.R. §§ 3.2501(a)(1), 19.2. Earlier Effective Dates The Veteran argues that the effective date for the award of service connection for tinnitus should be April 15, 2015, because there were VA medical records that were generated within one year of the January 2015 rating decision. See November 2024 VA Form 10182 argument. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. The effective date for an increased rating for disability compensation will be the latest of 1) the date entitlement arose, 2) the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date, or 3) the date of receipt of the claim. See 38 U.S.C. § 5110 (b)(3); 38 C.F.R. § 3.400(o). This general rule applies equally under the legacy and AMA systems of review. See 38 C.F.R. § 3.2500(h)(1). Important to note, the AMA became effective February 19, 2019. This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review and is applicable to all claims initially decided on and after that date. See 38 C.F.R. § 3.2400 (a). Claims decided by the AOJ before February 19, 2019 (the effective date of the AMA) are considered "Legacy appeals." See 38 C.F.R. § 3.2400(b). Here, the Veteran initially filed a claim for service connection for tinnitus in June 2014. A January 2015 rating decision denied the claim. The Veteran was notified of the decision in a January 2015 letter. He did not file a notice of disagreement within one year of the letter, nor was new and material evidence received within one year of the letter. Thus, the January 2015 rating decision became final. See 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.1103. For clarity, when there is a prior final decision in the claim file and a later reopened claim results in a grant of the benefit, the general rule for effective dates for reopened claims applies. In such cases the effective date cannot be earlier than the subsequent claim to reopen. The award can be made effective no earlier than the date of the new application. See 38 U.S.C. § 5110(a), (i), 5108; 38 C.F.R. § 3.400(q), (r); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). A rating decision becomes final if a Veteran does not timely file an appeal of the decision or submit new and material evidence within a year of the prior final decision. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.302. A claimant may reopen a finally adjudicated legacy claim by submitting new and material evidence. New evidence is evidence not previously part of the actual record before agency adjudicators. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a). Section § 3.156(b) requires that the VA treat new and material evidence as if it was filed in connection with the pending claim. The VA must assess any evidence submitted during the relevant period and make a determination as to whether it constitutes new and material evidence relating to the old claim. Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). Where a Veteran refers to additional medical records in correspondence received within one year of a rating decision and VA does not determine whether such records are new and material evidence, the claim remains pending. Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014). Again, when an award is based on a claim to reopen a previously denied claim, the effective date is the date of receipt of the new claim or the date entitlement arose, whichever is later, unless new and material evidence was received within the relevant appeal period. See 38 C.F.R. § 3.400(q). Thus, once a previous decision has become final, the earliest effective date of service connection generally is the date of the petition to reopen rather than the date of the initial claim. One exception to this rule includes a later grant of service connection based in whole or in part on relevant VA medical treatment records that existed at the time of the prior denial but were not associated with the claims file as provided in 38 C.F.R. § 3.156. Another, not raised by the record in this case, is when a decision is later revised or reversed on the basis of clear and unmistakable error (CUE), as provided in 38 U.S.C. § 5109A(a) and 38 C.F.R. § 3.105(a). Here, the Veteran's attorney submitted an argument with the November 2024 VA Form 10182. He asserted that the Veteran is entitled to an earlier effective date for tinnitus under 3.156(b) because of VA medical records generated within one year of the January 2015 rating decision; but did not otherwise provide any specific arguments as to why an earlier effective date should be assigned. Rather, he argued that VA did not consider this medical evidence, with no analysis or description of what those medical records stated or their relevance. The Board acknowledges that records were obtained by VA in April 2023, after the January 2015 rating decision. The RO denied the Veteran's 2015 tinnitus claim because it was not incurred in or aggravated by military service, nor was he service-connected for hearing loss or shown that hearing loss was related to service for his claim on a secondary basis. As such, the unestablished fact at the time of the January 2015 rating decision was a nexus between tinnitus and service. To comply with the directive of 38 C.F.R. § 3.156(b) that new and material evidence be treated as having been filed in connection with the pending claim, VA must evaluate submissions received during the relevant period and determine whether they contain new evidence relevant to a pending claim, regardless of whether the relevant submission might otherwise support a new claim. Beraud v. McDonald, 766 F.3d 1402 (Fed. Cir. 2014); Bond v. Shinseki, 659 F.3d 1362, 1369 (Fed. Cir. 2011). VA is required to "assess any evidence submitted during the relevant period and make a determination as to whether it constitutes new and material evidence relating to the old claim." Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011)). When a veteran files, within 1 year of an RO decision, a submission that may contain new and material evidence, "under § 3.156(b), the VA must provide a determination that is directly responsive to the new submission and..., until it does so, the claim at issue remains open." Beraud v. McDonald, 766 F.3d 1402, 1405, 1406-7 (Fed. Cir. 2014). New and material evidence means evidence not previously submitted to agency decisionmakers which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim and which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and which raises a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a). The Court has held that the phrase "must raise a reasonable possibility of substantiating the claim" does not create a third element for new and material evidence. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Rather, the Court held, that phrase provides guidance for VA adjudicators in determining whether submitted evidence meets the new and material requirements. Id. The Court explained that, when determining whether evidence is new and material, the Board should determine whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying the concepts derived from the Veterans Claims Assistance Act. Id. at 118; see also 38 U.S.C. § 5103A. Here, the Veteran's VA medical records that were generated within one year of the January 2015 rating decision, while new, are redundant and not material as the evidence by itself or taken together with other evidence, do not support a conclusion that the Veteran's tinnitus was due to service. Rather, the medical evidence does not include information relating to hearing loss or tinnitus during this time but show updates as to his diabetes and lung cancer screenings and his attempts to stop smoking. As such, the argument that the Veteran's claim should be pending from the June 2014 date of application based on VA medical records being generated within one year of the 2015 rating decision that became final is not valid. Thus, an earlier effective date of service connection for tinnitus is not warranted. Further, the Board has carefully reviewed medical and lay evidence but finds nothing that may reasonably be construed as a claim of service connection (formal or informal) for tinnitus prior to April 11, 2023. Neither the Veteran nor his attorney has cited to any specific record or correspondence which they believe shows an informal claim for tinnitus prior to April 11, 2023. The Board has reviewed the attorney's arguments but finds nothing therein to suggest that any other earlier effective dates may be assigned. The Board, however, considered that the Veteran did file a VA Form 526EZ on March 24, 2023. That notwithstanding, effective March 24, 2015, VA amended its regulations to require all claims be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant's effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 38 C.F.R. §§ 3.1(p), 3.151, 3.155. An initial claim is any complete claim, other than a supplemental claim, for a benefit on a form prescribed by the Secretary. Initial claims include: (i) A new claim requesting service connection for a disability or grant of a new benefit; and (ii) A claim for increase in a disability evaluation rating or rate of a benefit paid based on a change or worsening in condition or circumstance since the last decision issued by VA for the benefit. See 38 C.F.R. §§ 3.1(p)(1), 3.160(b). A supplemental claim is any complete claim for a VA benefit on an application form prescribed by the Secretary where an initial or supplemental claim for the same or similar benefit on the same or similar basis was previously decided. See 38 C.F.R. §§ 3.1(p)(2), 3.2501. As noted, the Board acknowledges the Veteran did file a claim seeking service connection for, in part, tinnitus on a VA Form 21-526EZ in March 2023, but under the AMA, a supplemental claim is required to reopen a previously denied claim. See 38 C.F.R. § 3.160(d)(2). The Veteran was notified by March 28, 2023, correspondence from the RO that his claim for service connection must be filed on the proper form. On April 11, 2023, the Veteran submitted the VA Form 20-0995 Supplemental Claim Application for a claim for service connection for tinnitus. As to whether it could use the March 2023 VA Form 21-526EZ form as an intent to file a claim under 38 C.F.R. § 3.155(b), the Board also explored under 38 C.F.R. § 3.155(c), incomplete application form, with respect to the wrong form filed in March 2023. However, the regulation states that a complete application form is defined by 38 C.F.R. § 3.160(a) and the regulation provides what is needed for a complete claim and a supplemental claim. As such, the Board has interpreted the regulation to mean the VA Form 21-526EZ Form could not be considered an intent to file for a supplemental claim, as the regulation separated what a complete claim is for an original claim and what would be needed for a supplemental claim, and that both a complete claim and supplemental claim are specifically noted to be on a form prescribed by the Secretary. Thus, as understood by the Board, an incomplete application form would refer to a situation where the correct form itself was incomplete, not that the wrong form was used. The Board finds that the VA Form 21-526EZ form submitted in March 2023 cannot be construed as an intent to file a claim or an incomplete application. As discussed in more detail above, the January 2015 rating decision was final. In this case, the first communication from the Veteran following the 2015 rating decision that could be taken as an expression of a desire for compensation benefits is the supplemental claim received on April 11, 2023, as the earlier communication was on the incorrect form. Therefore, the appropriate date of claim in this appeal is April 11, 2023, the date VA received the Veteran's supplemental claim to reopen service connection for tinnitus. With respect to the date entitlement arose, the VA examination and opinion noting that tinnitus was related to service were dated in February 2024. In any event, as noted above, the effective date for an award based on a claim to reopen cannot be earlier than the date of claim to reopen. See 38 U.S.C. § 5110(a). As such, an earlier effective date is not possible in this case. The Board also notes that the Veteran has not alleged CUE with the final January 2015 decision. Therefore, the Board has explored possible exceptions in attempting to provide a Veteran friendly interpretation of the regulations, but as the Board has interpreted the regulations, the earliest possible effective date is April 11, 2023. Thus, the Board finds that the effective date of April 11, 2023 (the date of his supplemental claim) is the appropriate effective date for the grant of service connection for the Veteran's tinnitus. See 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400. While the Board is sympathetic toward the Veteran, it is bound by the clear and specific regulations governing claims and effective dates articulated above and is required to follow the statutes and regulations governing veterans' benefits. See 38 C.F.R. § 20.105. In sum, the Veteran's June 2014 claim for service connection for tinnitus was denied in the January 2015 rating decision which became final, and a complete supplemental claim form was not received until April 11, 2023. See 38 C.F.R. §§ 3.1(p)(2), 3.2501. Further, the evidence generated within one year of the January 2015 rating decision was not new and material, nor did the Veteran file an appeal or provide any statements disagreeing with the rating decision within one year of the 2015 decision; thus, the claim became final. In addition, the Veteran's VA Form 21-526EZ submitted in March 2023 was not in any of three specified formats so as to satisfy the requirement of an intent to file a claim. Specifically, the Veteran did not submit a VA Form 21-0966 (Intent to File a Claim for Compensation) or communicate an oral intent to any designated VA personnel. See 38 C.F.R. § 3.155(b)(1). The Federal Circuit invalidated the portion of 38 C.F.R. § 3.155 that excluded supplemental claims from the intent to file framework. See Military-Veterans Advocacy v. McDonough, 7 F.4th 1110, 1117 (Fed. Cir. 2021) (holding that 38 C.F.R. § 3.155 excluding supplemental claims from the intent-to-file framework is invalid for contravening the unambiguous meaning of their governing statutory provisions). As such, the current effective date for entitlement to service connection for the award at issue is appropriate. Consequently, the Board finds that the persuasive evidence of record is against the Veteran's claim; the evidence is not in approximate balance, and the benefit of the doubt rule is inapplicable. Thus, entitlement to an earlier effective date prior to April 11, 2023, for the award of service connection for tinnitus is denied. Service Connection The Veteran contends that he has lung cancer that is due to service, to include his service in Korea. See June 2023 claim for benefits. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). If a Veteran was exposed to an "herbicide agent," such as Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam from January 9, 1962, to May 7, 1975, then, absent affirmative evidence to the contrary, certain diseases will be service connected even if there is no in-service record of the disease in service. See 38 C.F.R. § 3.307(a)(6), (d), 3.309(e). Notwithstanding the foregoing presumptions, a Veteran is not precluded from establishing service connection due to exposure to herbicides with proof of direct causation. Combee v. Brown, 38 F.3d 1039, 1042 (Fed. Cir. 1994). Here, the initial question for the Board is whether the Veteran has a current disability. The Board concludes that the Veteran does not have a current diagnosis for lung cancer and has not had a diagnosis for lung cancer during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Specifically, the persuasive weight of the evidence is against a finding for lung cancer for a current "disability" for VA purposes. While a 2018 CT scan found that right axillary lymph nodes were enlarged, the June 2022 pulmonary CT scan showed no suspicious pulmonary nodules. The September 2023 VA examination also specifically found against the Veteran having lung cancer. Rather, the examiner opined "because of the Veteran's smoking history (49 pack per year), he was receiving a lung CT annually. So far, no lung nodules have been noted." In addition, there are no reports as to lung cancer in the Veteran's VA or private medical records - instead, as noted by the September 2023 VA examiner, the Veteran was undergoing regular lung cancer screenings due to his history with smoking. In fact, the Veteran himself has not provided any statements as to whether he does indeed have a diagnosis for lung cancer. As the lay and medical evidence does not show the Veteran has lung cancer or even symptoms thereof manifesting in pain or functional impairment of employment or activities of daily living, the disorder does not constitute a "disability" for VA purposes. Saunders v. Wilkie, 886 F.3d, 1356, 1368 (Fed. Cir. 2018); 38 U.S.C. §1131; Allen, 7 Vet. App. at 439 (pain alone may qualify as a "disability" if it causes functional impairment). Additionally, to any extent that the Veteran believes he has a current diagnosis of lung cancer, he is not competent to provide a diagnosis. The issue is medically complex, as it requires specialized medical education and knowledge of the interaction between multiple organ systems in the body. Jandreau, 492 F.3d 1372, 1377. The Veteran has not demonstrated the necessary medical expertise. As the evidence of record persuasively weighs against finding that the Veteran has had a diagnosis of lung cancer at any time during or approximate to the pendency of the claim, it is thus, unnecessary to address the remaining elements of the claims for service connection because the absence of proof of a present disability, there can be no valid claim for service connection. Brammer, 3 Vet. App. at 225. In reaching the above decision, the Board considered the doctrine of reasonable doubt; however, as the evidence persuasively weighs against the Veteran's claim, the doctrine does not apply. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); 38 U.S.C. § 5107; 38 C.F.R. § 4.3. For the foregoing reasons, the persuasive weight of the evidence is against finding that the criteria for service connection for lung cancer are met; therefore, service connection for lung cancer is denied. REASONS FOR REMAND Although the Board regrets the additional delay, the Board finds that a remand is required to correct duty to assist errors that occurred prior to the December 2023 rating decision and the February 2024 rating decision on appeal. See 38 C.F.R. § 20.802(a). Thus, a remand is necessary to ensure due process and proper development regarding the claim. First, a review of the claims file does not find that complete service treatment or personnel records have been obtained. For example, the Veteran's DD-214 notes that he was transferred to the Reserve following active duty until 1973. The AOJ must attempt to verify the Veteran's active duty for training or inactive duty training and obtain personnel and medical records from those periods. Evidence also indicates that there may be outstanding relevant private treatment records. For example, a June 2023 VA medical report noted that the Veteran follows with non-VA providers, and they needed an updated medication list. His records clearly show he had been receiving treatment for multiple conditions to include prescribed medications from Roper Medical Center; although many of those records have been associated with the claims file, there appears to be a gap between 2004 and 2014. A remand is required to allow VA to obtain authorization and request these records. Next, the Veteran also contends that he has colon cancer, hypertension, and diabetes mellitus type II that is due to service, to include as due to herbicide agent exposure. A veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that a veteran was not exposed to any such agent during that service. See 38 C.F.R. § 3.307(a)(6), (d); 3.309(e). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e), to include early-onset peripheral neuropathy, if manifested to a compensable degree within one year of the last date a veteran was exposed to an herbicide agent during active service. See 38 U.S.C, § 1116 (a)(1); 38 C.F.R. § 3.307(a)(6)(ii). A veteran may also establish service connection based on exposure to Agent Orange with proof of actual direct causation. Combee, 34 F.3d 1039. That is, a veteran may still establish service connection for the disease by (1) showing that the disease actually occurred in service; or (2) by submitting evidence of a nexus between the disease and his exposure to herbicides during military service. Id., 34 F.3d at 1043-1044. Here, the AOJ made a favorable finding that the Veteran was diagnosed with diabetes mellitus and hypertension and that a qualifying event, injury, or disease had its onset during his service. Under the Appeals Modernization Act (AMA), the Board is bound by favorable findings by the AOJ in the absence of evidence of clear and unmistakable error. See 38 C.F.R. § 3.104(c). However, although medical opinions for diabetes mellitus, hypertension, and colon cancer obtained, the Board finds addendum opinions are required to adjudicate the claim. First, there are two memorandums in the file relating to whether the Veteran was exposed to herbicide agents. In August 2023, the VA memo stated, "the Veteran was exposed to the following: Herbicide Agent -2,3,7,8 -Tetrachlorodibenzodioxin (TCDD)." Based on this memorandum, there were positive opinions for the Veteran's diabetes mellitus and hypertension from a September 2023 VA examiner. However, a February 2024 memorandum found that the Veteran did not participate in a TERA. The October 2023 VA medical opinions therefore provided a negative opinion that the Veteran had not participated in a TERA or was exposed to herbicide agents. The Board also notes that the February 2024 rating decision did not include consideration of the September 2023 VA examiner's opinions; thus, on remand, a confirmation as to whether the Veteran was exposed to herbicide agents or otherwise participated in a TERA event and then a consolidation of the two opinions is required. Next, although the February 2024 VA examiner provided opinions as to whether the Veteran's diabetes mellitus type II and hypertension would be directly related to service, the Board finds an addendum opinion is necessary. The examiner opined that the conditions are not due to service because the Veteran had not been tested for blood sugar in service and his blood pressure readings were not elevated during service. That notwithstanding, the Board notes that the fact the Veteran's conditions were normal at discharge does not preclude service connection being granted for a post-service condition if it is, in fact, related to service. In addition, the Board notes that the examiner's rationale was based on no diabetes mellitus Type II concerns until 2001, but that is not true; the private medical records clearly indicated he began having tests done in 1996 and in February 1996, he was diagnosed with glucosemia, which the examiner did not consider. As for hypertension, the examiner also opined there were no blood pressure concerns prior to 1989, but again, the private medical records indicate that he had been followed and had having regular blood pressure checks since 1979 and that in in July 1983, he was diagnosed with hypertension. As such, if the Veteran is found to not have participated in a TERA event, an examiner should then address the Veteran's specific medical and military history, whether there are other risk factors, whether the condition manifested itself in an unusual manner, and/or whether there are other medical studies found to be persuasive. Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009. The absence of documentation of treatment in service or immediately thereafter, moreover, is not in itself an absolute bar to the award of service connection. As for the claim for colon cancer, the September 2023 VA examination noted that the Veteran had colon adenocarcinoma from September 2021 and a colonoscopy showed moderately differentiated adenocarcinoma of the colon and he had a partial colectomy (removing about 12 inches). He was diagnosed with diverticulitis and intestinal neoplasm and is status post partial colectomy. The medical records from this surgery and colonoscopy must be obtained on remand. The September 2023 examiner opined that the colon cancer is not due to service because colon cancer is not a presumptive condition to agent orange exposure. That notwithstanding, service connection for colon cancer can still be granted on a direct facts-found bases. As discussed above, it is not clear whether the Veteran participated in a TERA event and a clarification is requested on remand. Thus, an examiner must consider that the mere fact that the Veteran's colon cancer is not presumptively associated with herbicide exposure does not preclude the possibility of service connection on a direct basis. Polovick, 23 Vet. App. 48, 54. In other words, even colon cancer is not on the list of presumptive diseases associated with herbicide exposure, a nexus can still be stablished based on direct service connection. Id. An examiner should address the Veteran's specific medical and military history, whether there are other risk factors, whether the condition manifested itself in an unusual manner, and/or whether there are other medical studies found to be persuasive. Id. The absence of documentation of treatment in service or immediately thereafter, moreover, is not in itself an absolute bar to the award of service connection. As such, the Board finds addendum opinions must be obtained for clarification. Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"). The matters are REMANDED for the following action: 1. Obtain the Veteran's complete service personnel records, to include all documents pertaining to service in the Reserve. Verify all active duty for training and inactive duty training dates for service in the Reserve. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). Document all requests for information as well as all responses in the claims file. 2. Obtain the Veteran's complete service treatment records (STRs), to include documents pertaining to his service in the Reserve. This includes any medical records during Active Duty for Training and Inactive Duty Training. Contact the Amy Reserve Center if necessary. Document all requests for information as well as all responses in the claims file. 3. Ask the Veteran to complete a VA Form 21-4142 for his private medical records, to include from Roper St. Francis, and where he had his colonoscopy and colectomy done. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 4. Request a clarification as to whether the Veteran was exposed to herbicide agents and participated in a TERA event. Please see the August 2023 and February 2024 VA memorandums that are contradictory. 5. Only after the above has been completed to the extent possible, and only if the VA memorandum finds the Veteran was not exposed to herbicide agents, obtain an addendum medical opinion to assess the etiology of the Veteran's hypertension and diabetes mellitus type II. The entire claims file should be made available to, and reviewed by, the examiner. Another examination should not be scheduled unless deemed necessary by the examiner. The examiner is asked to provide opinions as to: (a.) whether it is at least as likely as not (the evidence is at least approximately balanced, or nearly equal, if not higher), that the Veteran's hypertension is related to his active-duty service. (b.) whether it is at least as likely as not (the evidence is at least approximately balanced, or nearly equal, if not higher), that the Veteran's diabetes melitis type II is related to his active-duty service. The examiner is instructed to specifically consider, and address, all evidence submitted by the Veteran in support of his claim. The examiner is also advised that the Veteran is competent to report the onset of his symptoms, and that the fact that there was no treatment in service, or many years thereafter, may not be the sole basis of a negative opinion. The examiner is asked to consider the Veteran's specific medical and military history, other risk factors, whether the condition manifested itself in an unusual manner, and whether there are medical studies found persuasive. The examiner is also asked to consider that the Veteran began having blood pressure readings taken as early as 1979 with a diagnosis for hypertension in 1983 and began having blood testing done as early as 1996 with a diagnosis for glucosemia in February 1996. If medical literature is relied upon, the examiner should identify and specifically cite each reference material used. The examiner should specifically discuss any contradictory evidence in the claims file and reconcile that evidence with their findings. A rationale for all requested opinions shall be provided. 6. Then, obtain an addendum medical opinion to assess the etiology of the Veteran's colon cancer. The entire claims file should be made available to, and reviewed by, the examiner. Another examination should not be scheduled unless deemed necessary by the examiner. The examiner is asked to provide an opinion as to: (a.) whether it is at least as likely as not (the evidence is at least approximately balanced, or nearly equal, if not higher), that the Veteran's colon cancer is related to his active-duty service. The examiner is instructed to specifically consider, and address, all evidence submitted by the Veteran in support of his claim. The examiner is also advised that the fact that there was no treatment in service, or many years thereafter, may not be the sole basis of a negative opinion. Further, if the Veteran is found to have participated in a TERA event, the examiner is advised that an opinion must still be rendered considering whether his colon cancer is attributable to in-service exposures with consideration of the Veteran's specific medical and military history, other risk factors, whether the condition manifested itself in an unusual manner, and whether there are medical studies found persuasive. If medical literature is relied upon, the examiner should identify and specifically cite each reference material used. The examiner should specifically discuss any contradictory evidence in the claims file and reconcile that evidence with their findings. A rationale for all requested opinions shall be provided. L.M. YASUI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Hoy, 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.