Citation Nr: 1142783 Decision Date: 11/21/11 Archive Date: 12/06/11 DOCKET NO. 08-33 674 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for colon disorder, claimed as colon cancer. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. K. Buckley, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from December 1947 to November 1951 and in the Air Force from August 1952 to July 1969. Service in the Republic of Vietnam has been conceded. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the Veteran's claim. In a March 2010 Board decision, the claim was remanded for further evidentiary development. The VA Appeals Management Center (AMC) continued the previous denial in a September 2011 supplemental statement of the case (SSOC). The Veteran's VA claims folder has been returned to the Board for further appellate proceedings. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The competent medical evidence of record shows that the Veteran is currently diagnosed with a history of ischemic bowel disease resulting in necrosis followed by surgical repair. 2. The competent medical evidence of record does not support a finding that the Veteran's colon disorder is related to his military service. CONCLUSION OF LAW A colon disorder to include a history of ischemic bowel disease resulting in necrosis followed by surgical repair was not incurred in or aggravated by the Veteran's active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks entitlement to service connection for a colon disorder to include colon cancer. In the interest of clarity, the Board will discuss certain preliminary matters. The Board will then address the pertinent law and regulations and their application to the facts and evidence. Stegall concerns The Board has thoroughly reviewed the claims folder including the March 2010 remand instructions. The Board notes that the AMC obtained the Veteran's complete service personnel records and made inquiry to the Naval History and Heritage Command in an effort to determine whether the Veteran was exposed to asbestos. Additionally, the Veteran was afforded a VA examination in July 2011. Complete VCAA notice was also provided to the Veteran. Further, as indicated above, a SSOC was issued in September 2011. Accordingly, the Board's remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist a claimant in the development of a claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The VCAA alters the legal landscape in three distinct ways: standard of review, notice, and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the veteran. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2011). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires VA to notify a veteran and a veteran's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claims. As part of this notice, VA is to specifically inform a veteran and a veteran's representative, if any, of which portion, if any, of the evidence is to be provided by a veteran and which part, if any, VA will attempt to obtain on behalf of a veteran. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) (a letter from VA to an appellant describing evidence potentially helpful to the appellant, but not mentioning who is responsible for obtaining such evidence, did not meet the standard erected by the VCAA). After having carefully reviewed the record, the Board has concluded that the notice requirements of the VCAA have been satisfied as to the issue currently on appeal. The Veteran was informed of the evidentiary requirements for service connection in letters dated June 2007, September 2008, March 2010, June 2011, and August 2011 including the evidence needed to sustain service connection claims with alleged herbicide or asbestos exposure. Crucially, the RO informed the Veteran of VA's duty to assist him in the development of his claim in the above-referenced VCAA letters. Specifically, the letters stated that VA would assist the Veteran in obtaining relevant records such as all records held by Federal agencies to include service treatment records or other military records, and medical records from VA hospitals. With respect to private treatment records, the letters informed the Veteran that VA would request such records, if the Veteran completed and returned the attached VA Form 21-4142, Authorization and Consent to Release Information. The letters also notified the Veteran that he would be afforded a VA examination if necessary to make a decision on his claim. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Veteran was provided with Dingess notice in the VCAA letters dated June 2007, September 2008, March 2010, June 2011, and August 2011. Accordingly, the Veteran received proper notice as to disability rating and effective date pursuant to the Court's Dingess determination. Moreover, there is no timing problem as to Dingess notice since, as indicated above, the Veteran's claim was readjudicated in September 2011 SSOC, following the issuance of the letters. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). As there is no indication that there exists any evidence which could be obtained to affect the outcome of this case, no further VCAA notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (VCAA notice not required where there is no reasonable possibility that additional development will aid the veteran). Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2011). In the instant case, the Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim and there is no reasonable possibility that further assistance would aid in substantiating it. The evidence of record includes the Veteran's statements, service treatment records, service personnel records, and VA and private treatment records. As indicated above, the Veteran was afforded a VA examination in July 2011 as to his pending claim. The VA examination report reflects that the examiner thoroughly reviewed the Veteran's past medical history, documented his medical conditions, and rendered an opinion which appears to be consistent with the remainder of the evidence of record. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). The Board therefore concludes that the VA opinion is adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2011); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of this issue has been consistent with said provisions. The Veteran has been accorded ample opportunity to present evidence and argument in support of his claim. See 38 C.F.R. § 3.103 (2011). He has retained the services of a representative and declined the opportunity to testify at a hearing before a Veterans Law Judge. Accordingly, the Board will proceed to a decision. Relevant law and regulations Service connection - in general Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2011). Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. See 38 C.F.R. § 3.303(a) (2011). In order to establish service connection for the claimed disorder, there must be (1) competent and credible evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent and credible evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009), Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2011). Asbestos exposure There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). VA Manual M21-1, Part VI, para. 7.21 (October 3, 1997) provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of 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. Thus persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1, Part VI, para 7.21(a). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VA O.G.C. Prec. Op. No. 04-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Service connection - Agent Orange exposure A veteran who, during active military, naval, or air 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 the veteran was not exposed to any such agent during that service. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(6)(iii) (2011). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain listed diseases shall be service connected. See 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.309(e) (2011). Combee considerations In Combee v. Brown, the Court held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 24 F.3d 1039, 1043-44 (Fed. Cir. 1944). As such, the Board must not only determine whether the veteran has a disability which is recognized by VA as being etiologically related to prior exposure to herbicides that were used in Vietnam, [see 38 C.F.R. § 3.309(e)], but also must determine whether his current disability is the result of active service under 38 U.S.C.A. § 1110 (West 2002) and 38 C.F.R. § 3.303(d). Analysis The Veteran seeks entitlement to service connection for a colon disorder, claimed as colon cancer, which he asserts was incurred as a result of his military service. As noted above, in order to establish service connection for the claimed disorder, there must be (1) competent and credible evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent and credible evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden, supra. As to element (1), current disability, the July 2011 VA examiner diagnosed the Veteran with a "history of ischemic bowel disease resulting in necrosis followed by surgical repair." This finding is consistent with the record which does not show that the Veteran was diagnosed with colon cancer during the appeal period. Consideration has been given to McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) wherein the Court held that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. The Board recognizes the contentions of the Veteran that he had colon cancer. Crucially, there is simply no medical evidence of record that documents such a diagnosis. The Board notes that a November 2005 computed tomography (CT) scan demonstrated a potential mass in the Veteran's colon; however no metastatic disease or malignant tumor was identified. Rather, the Veteran was diagnosed with necrosis of the bowel related to a large benign tumor and underwent a total cholectomy with colostomy. See the private treatment records dated November 2005; see also the VA treatment records dated May 2007. Moreover, the Veteran told the July 2011 VA examiner that he suffered from a benign tumor. Accordingly, the competent medical evidence of record does not show that the Veteran is diagnosed with colon cancer; rather, his currently diagnosed colon disorder is a history of ischemic bowel disease resulting in necrosis followed by surgical repair. As to element (2), in-service injury or disease, the Veteran has asserted several theories of entitlement. He has alleged in-service injury due to Agent Orange exposure, asbestos exposure, and exposure to toxic chemicals. See the Veteran's statement dated July 2007. As noted above, the Veteran's service in the Republic of Vietnam has been conceded. Accordingly, herbicide [namely, Agent Orange] exposure is presumed from the record. See 38 U.S.C.A. § 1116(f) (West Supp. 2011). In-service injury has therefore been met to that extent. Additionally, although VA has been unable to confirm the Veteran's contentions of asbestos exposure during his military service, asbestos exposure is a fact to be determined from the evidence. See Dyment, supra. The Veteran's contention is that he was exposed to asbestos aboard ship. The Board cannot disagree with the Veteran's contention in light of the provisions of M21-1, described in the law and regulations section above. The Veteran served aboard a World War II-era ship, the U.S.S. CAPE ESPERANCE during his naval service, and VA has recognized that such vessels contained asbestos. In-service asbestos exposure is therefore conceded. Moreover, the Veteran's service personnel records from his Air Force career demonstrate that he served as an aircraft mechanic. As such, the Board does not dispute the Veteran's contentions of in-service exposure to toxic chemicals. Turning to crucial element (3), the Board initially notes that the Veteran's diagnosed colon disorder (ischemic bowel disease) is not listed among the Agent Orange-related diseases enumerated in 38 C.F.R. § 3.309(e); therefore, medical nexus may not be presumed as a matter of law. However, notwithstanding the inapplicability of the Agent Orange regulations, the Board is obligated to fully consider whether the Veteran's currently diagnosed colon disorder is the result of his active military service. See Combee, supra; see also Brock v. Brown, 10 Vet. App. 155 (1997) (holding that the rationale employed in Combee also applies to claims based on exposure to Agent Orange). Accordingly, the Board will move on to discuss whether service connection for colon disorder may be awarded on a direct basis to include as due to his presumed herbicide exposure, asbestos exposure, and chemical exposure. Critically, the competent medical evidence of record supports a finding that the Veteran's colon disorder is not related to his military service. Specifically, in a July 2011 VA opinion, the examining physician concluded that "[t]he Veteran's ischemic bowel disease is not related to herbicides in service." He explained that "[a] review of the medical literature including Up-To-Date, an on-line medical reference notes that mesenteric ischemia is caused by reduction in intestinal blood flow most commonly arising from occlusion, vaso-spasm and/or hypoperfusion of the mesenteric vasculature. Up-To-Date goes on to say that the ischemic colitis is the most frequent form of mesenteric ischemia and affects mostly the elderly. This Veteran is 81 years old." The VA examiner also indicated that, "[i]t is not likely that the Veteran's current colon disorder is causally related to exposure to asbestos in service." He explained that, "[i]schemic colitis is not associated with asbestos exposure according to the on-line medical reference, Up-To-Date." The VA examiner further concluded, "[t]he Veteran's ischemic colitis resulting in colonostomy is not causally related to exposure to cleaning solvents or other toxic chemicals in service." He explained that "[t]he Veteran's ischemic colitis occurred in his late 70's. Cleaning solvents are not listed as causative for ischemic bowel disease according to Up-To-Date and on-line medical reference." The July 2011 VA examination report appears to have been based upon thorough examination of the Veteran and review of the record as well as thoughtful analysis of the Veteran's entire history. The VA examiner noted the Veteran's report of development of his current colon disorder, and further indicated that he relied upon the Veteran's medical records and medical research in rendering his opinion. See Bloom, supra. Critically, the VA examiner indicated that he did review the service treatment records in their entirety and took into consideration the Veteran's report of private medical treatment in the 1970's. Moreover, the VA opinion appears to be consistent with the Veteran's medical records, which fail to document a stomach or colon disability until September 2005, at which time the Veteran underwent surgery for a supraumbilical hernia repair, and November 2005, when an abdominal CT scan showed necrosis of the bowel related to a large benign tumor. Crucially, these diagnoses and treatment were more than thirty-five years after the Veteran's active duty discharge. A medical opinion that contradicts the conclusions of the July 2011 VA examiner is not of record. To the extent that the Veteran is contending that the colon disorder is related to his military service, the Board notes that under certain circumstances lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran's lay reports of current disability are supported by the clinical evidence. However, at issue in this case is whether there is competent evidence linking his current complaints and symptomatology to in-service disability. In this regard, there is no indication that the Veteran is competent to comment on medical matters such as etiology. See 38 C.F.R. § 3.159(a)(1) (2011) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Accordingly, the statements offered by the Veteran in support of the claim are not competent evidence of a nexus between claimed disability and military service. To the extent that the Veteran is contending that he has had a colon disorder on a continuous basis since service, the Board is of course aware of the provisions of 38 C.F.R. § 3.303(b), discussed in the law and regulations section above. In Savage v. Gober, 10 Vet. App. 488 (1997), the Court noted that while the concept of continuity of symptomatology focuses on continuity of symptoms, not treatment, the lack of evidence of treatment may bear upon the credibility of the Veteran's current assertions of a continuity of symptomatology. While competent to report observable symptoms such as discomfort and swelling, the Veteran is not competent to report that perceived symptoms during service and thereafter were manifestations of a chronic disability such as ischemic bowel disease. In Voerth v. West, 13 Vet. App. 117, 120-21 (1999), the Court held that in order to award service connection 38 C.F.R. § 3.303(b), there must be medical evidence on file demonstrating a relationship between a veteran's current disability and the claimed continuous symptomatology, unless such a relationship is one as to which a lay person's observation is competent. Such evidence is lacking in this case. Continuity of symptomatology after service is therefore not demonstrated. Accordingly, element (3) is not satisfied and the claim fails on this basis. In summary, for the reasons and bases expressed above, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for colon disorder. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010); Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). The benefit sought on appeal is accordingly denied. ORDER Entitlement to service connection for ischemic bowel disease with necrosis and subsequent surgical repair is denied. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs