Citation Nr: 1311121 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 10-37 692 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for colorectal cancer, to include as based on exposure to herbicides. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD M. McBrine, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to April 1971, to include service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery Alabama. FINDINGS OF FACT The Veteran's colorectal cancer was not manifested until many years after discharge from service, and there is no causal connection shown between current colorectal cancer residuals and service or any incident therein, to include exposure to herbicides. CONCLUSION OF LAW Colorectal cancer was not incurred or aggravated in active service, and may not be presumed to be the result of herbicide exposure. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. A VCAA letter dated in July 2008 satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letter informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced Veterans Service Organization and has submitted argument in support of his claims. These arguments have referenced the applicable law and regulations necessary for a grant of service connection. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and relevant VA medical records are in the file. All records identified by the Veteran as relating to the claims have been obtained, to the extent possible. The Board finds that the record contains sufficient evidence to make a decision on the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). In this case, the Board concludes an examination is not needed. VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of: (1) a current disability; (2) an in-service event, injury, or disease; and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. Id.; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). As will be discussed in greater detail below, the Board believes that there is no credible evidence suggesting an association between the Veteran's cancer and any event, injury, or disease in service, to include exposure to herbicides. Specifically, there is no credible evidence of competent in-service complaints, treatment, or diagnosis of cancer; and no competent and credible evidence otherwise linking any current colorectal cancer and the Veteran's military service, to include exposure to herbicides. In this regard, the Board acknowledges that in some instances, a lay person may be competent to suggest an association between a current disability and service. However, the Board finds that the issue of whether the Veteran's cancer is related to in-service herbicide exposure is far too complex a matter for a lay person's assertions to provide such a link. Thus, VA is not required to provide the Veteran with a VA examination in conjunction with his claim. 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, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Pertinent Legal Criteria Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110 , 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 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) (2012 ). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2012). This rule does not mean that any manifestations in service will permit service connection. To show 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 disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. On December 27, 2001, the Veterans Education and Benefits Expansion Act of 2001 was enacted. See Pub. L. No. 107-103, 115 Stat. 976 (2001). This law made substantive changes to 38 U.S.C.A. § 1116 pertaining to presumption of service connection for diseases associated with exposure to certain herbicide agents. Effective January 1, 2002, a Veteran who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicides. See 66 Fed. Reg. 23168 (May 8, 2001) (to be codified at 38 C.F.R. §§ 3.307 , 3.309). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii) (2012). The following diseases shall be service connected if the Veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, and provided further that the requirements of 38 C.F.R. § 3.307(d) are satisfied: chloracne or other acneform disease consistent with chloracne, Hodgkin's disease, type II diabetes mellitus, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, certain respiratory cancers, and soft tissue sarcoma. 38 C.F.R. § 3.309(e) (2012). In this regard, Note 2 to 38 C.F.R. § 3.309(e) states that, for purposes of this section the term "acute and subacute peripheral neuropathy" means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. In addition, on October 13, 2009, in accordance with authority provided in 38 U.S.C.A. § 1116 , the Secretary of VA announced his decision to establish presumptions of service connection, based upon exposure to herbicides within the Republic of Vietnam during the Vietnam era, for three new condition: ischemic heart disease, Parkinson's disease, and B cell leukemia. The final rule establishing the presumptions was issued in August 2010 and became effective August 31, 2010. Significantly, the amended 38 C.F.R. § 3.309(e) indicates that ischemic heart disease includes, but is not limited to, "acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina." See 75 Fed. Reg. At 53, 106. However, Note 3 provides that for purposes of this section, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 61 Fed. Reg. 414,421 (1996), see also 67 Fed. Reg. 121, 42,600 (June 24, 2002). Abnormal sperm parameters and infertility have specifically been excluded from presumptive service connection based on herbicide exposure. See 68 Fed. Reg. 97, 27,630-27,641 (May 20, 2003). Notwithstanding the foregoing presumption provisions, the U.S. Court of Appeals for the Federal Circuit (Circuit Court) has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. As an initial matter, the evidence establishes that the Veteran served in the Republic of Vietnam during the Vietnam era. Therefore, the Veteran is presumed to have been exposed to herbicides during active duty. The Board also notes that at times, the Veteran's cancer has been described as a colon cancer, and at times, specifically as a rectal cancer. For the purposes of this decision, and given the nature of such diseases, the Board has recharacterized the issue on appeal broadly as service connection for colorectal cancer. Taking into account all relevant evidence, the Board finds that service connection is not warranted for colorectal cancer. Initially, as to the claim of service connection on the basis of presumption of exposure to herbicides, the law is clear that a presumption of service connection based on exposure to herbicides used in Vietnam is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. As neither colon nor rectal cancer are on the list of conditions which the Secretary has deemed presumptive, service connection on a presumptive basis for the Veteran's colorectal cancer is not warranted. However, this does not preclude the Veteran from establishing that service connection for colorectal cancer is warranted based on direct service connection, or is directly related to herbicide exposure. However, although the evidence shows that the Veteran was operated on in April 2007 with a diagnosis of rectal cancer, no competent medical evidence has been submitted to show that this disability is related to service or herbicide exposure. Review of the competent evidence of record reflects that the Veteran's service medical records show no evidence of a diagnosis of, or symptoms that could be related to, cancer, and the first post service medical evidence of record of colorectal cancer is from 2007, 36 years after the Veteran's separation from active service. This initial onset of the disability is well over a year following the Veteran's exposure to herbicide and his separation from active duty, nor does the Veteran dispute the onset of this disability. The Board is cognizant that the Veteran can attest to factual matters of which he has first-hand knowledge, such as when he first experienced observable symptoms or was first given a diagnosis by his treating health care provider. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Veteran, as a lay person, is not competent to report that his colorectal cancer, which he does not dispute first manifested many years after service, is somehow related to his herbicide exposure in service. Jandreau v. Nicholson, 492 F.3d at 1377 (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); In this case, there is no objective evidence of symptoms of colorectal cancer in service or until many years after service. As there is no competent evidence of record suggesting a connection between any in-service exposure to herbicides and the Veteran's colorectal cancer and no evidence of any manifestations or symptoms attributable to colorectal cancer within the first year of discharge from service or until many years thereafter, the Board finds no basis to grant service connection. The benefit of the doubt has been considered, but there is not an approximate balance of positive and negative evidence regarding the merits of the issue on appeal. Therefore, that doctrine is not for application in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert, supra. Accordingly, the appeal is denied. ORDER Entitlement to service connection for colorectal cancer, to include as claimed as due to herbicide exposure, is denied. ____________________________________________ DAVID WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs