Citation Nr: 0812910 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 06-15 070 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for cancer of the colon and stomach, to include as secondary to exposure to Agent Orange and asbestos. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David S. Ames, Associate Counsel INTRODUCTION The veteran served on active duty from May 1967 to March 1970. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Atlanta, Georgia (RO). FINDINGS OF FACT 1. The veteran had active military service in the Republic of Vietnam. 2. The medical evidence of record does not show that the veteran's colon and stomach cancer is related to military service. CONCLUSION OF LAW Colon and stomach cancer was not incurred in, or aggravated by, active military service and may not be presumed to have been so incurred, to include as due to exposure to Agent Orange and asbestos. 38 U.S.C.A. §§ 1110, 1116, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Prior to initial adjudication, a letter dated in April 2005 satisfied the duty to notify provisions. See 38 C.F.R. § 3.159(b)(1); Overton v. Nicholson, 20 Vet. App. 427 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The veteran's service medical records and indicated private medical records have been obtained. A VA examination has not been accorded the veteran, because there is no evidence that the veteran had cancer during service, nor is there any evidence that relates the currently diagnosed cancer to military service or any incident therein. In this specific case, the decision turns on the etiology of the veteran's currently diagnosed cancer. However, the veteran himself stated in a transcript of a March 2008 hearing before the Board that he had never discussed Agent Orange or asbestos exposure with his physicians. Accordingly, there is no indication in the record that additional evidence relevant to the issue decided herein is available and not part of the claims file. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. 473. Further, the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, to include the opportunity to present pertinent evidence. Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic disorders, including colon and stomach cancer, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Agent Orange Additionally, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307. The following diseases are deemed associated with herbicide exposure, under VA law: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma and diabetes mellitus (Type 2). 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii); 38 C.F.R. § 3.309. In this case, the veteran claims that he developed colon and stomach cancer as a result of military service, to include as due to exposure to Agent Orange. The evidence of record reveals that the veteran served in Vietnam. Under 38 U.S.C.A. § 1116(f), he is therefore presumed to have been exposed to herbicide agents, to include Agent Orange. However, the medical evidence of record does not show a current diagnosis of a presumptive disorder under 38 C.F.R. § 3.309(e). Consequently, the veteran does not have a disability that would warrant service connection on a presumptive basis based on Agent Orange exposure. Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994). The United States Court of Appeals for Veterans Claims has specifically held that the provisions of Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). Asbestos Exposure The Board notes that the VA has issued certain procedures on asbestos-related diseases which provide guidelines for use in the consideration of compensation claims based on exposure to asbestos. See VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, para. 9 (September 29, 2006); see also McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The aforementioned manual notes that the inhalation of asbestos fibers can produce fibrosis and tumors, with interstitial pulmonary fibrosis (asbestosis) being the most common disease. A clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at the late stages; and pulmonary function impairment and cor pulmonale which can be demonstrated by instrumental methods. Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal, and urogenital cancer. Moreover, the risk of developing bronchial cancer is increased in current cigarette smokers who have had asbestos exposure. Cancer The veteran's service medical records are negative for any diagnosis of carcinoma of any kind. After separation from military service, a June 2000 private medical report gave a diagnosis of colon carcinoma. The medical evidence of record shows that colon cancer has been consistently diagnosed since June 2000. The medical evidence of record also shows that the veteran's colon cancer includes stomach involvement. The medical evidence of record does not show that the veteran's cancer is related to military service, to include as secondary to exposure to Agent Orange or asbestos. The veteran's service medical records are negative for any diagnosis of cancer. While the veteran has a current diagnosis of colon cancer with stomach involvement, there is no medical evidence of record that this disorder was diagnosed prior to 2000, over 30 years after separation from active duty. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back disorder). Additionally, there is no medical evidence of record of any kind regarding the etiology of the veteran's colon cancer, let alone medical evidence that relates it to exposure to Agent Orange or asbestos. While asbestos exposure causes an increased incidence of gastrointestinal cancer, there are no provisions in the law that provide for presumptive service connection for gastrointestinal cancer on the simple basis of exposure to asbestos. Accordingly, some kind of etiological opinion is required that relates a diagnosis of gastrointestinal cancer to asbestos exposure. As noted above, the medical evidence of record includes no etiological discussion of any kind. The veteran's statements alone are not sufficient to prove that his currently diagnosed colon and stomach cancer is related to military service. Medical diagnosis and causation involve questions that are beyond the range of common experience and common knowledge and require the special knowledge and experience of a trained physician. As he is not a physician, the veteran is not competent to make a determination that his currently diagnosed colon and stomach cancer is related to military service. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). As such, there is no medical evidence of record that relates the veteran's currently diagnosed colon and stomach cancer to military service, to include as secondary to exposure to Agent Orange and asbestos. Accordingly, service connection for colon and stomach cancer is not warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as there is no medical evidence that relates the veteran's colon and stomach cancer to military service, to include as secondary to exposure to Agent Orange and asbestos, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for cancer of the colon and stomach, to include as secondary to exposure to Agent Orange and asbestos, is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs