Citation Nr: 1322479 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 10-40 650A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to service connection for rectal cancer, to include as secondary to Agent Orange exposure and/or service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: J. Michael Woods, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran had active service from October 1969 to July 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Ft. Harrison, Montana that denied service connection for rectal cancer. In July 2011, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. In January 2012, in pertinent part, the Board remanded the claim listed on the title page to the RO, via the Appeals Management Center (AMC) for additional development. The RO/AMC complied with the Board's remand instructions; the Veteran was afforded an additional VA examination in February 2012, and the report has been associated with the Veteran's claims file. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the Veteran filed claims for an increased disability rating for PTSD and entitlement to service connection for hypertension. However, the current status of these claims is unknown, and these issues have not been certified for appeal. As such, such the Board assumes that the RO is taking appropriate action. The Virtual VA claims file has been reviewed. FINDING OF FACT 1. The Veteran served in Vietnam and is presumed to have been exposed to Agent Orange. 2. The Veteran does not have a disease that is presumed to be service connected in veterans exposed to Agent Orange. 3. Rectal cancer was not manifest during service or within one year of separation. Rectal cancer is not attributable to service. 4. Rectal cancer is unrelated (causation or aggravation) to service-connected disease or injury. CONCLUSIONS OF LAW 1. Rectal cancer was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 2. Rectal cancer is not proximately due to or the result of (causation or aggravation) a service connected disease or injury. 38 C.F.R. § 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the agency of original jurisdiction (AOJ) issued notice letters, dated in October 2009, February 2010 and May 2010, to the Veteran. These letters explained the evidence necessary to substantiate the Veteran's claim for service connection, as well as the legal criteria for entitlement to such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The claims file contains the Veteran's available service treatment records, reports of private and VA post-service treatment and the Veteran's own statements in support of his claim. In connection with the current appeal, the Veteran was afforded VA examinations responsive to the claim for service connection of rectal cancer. McClendon v. Nicholson, 20 Vet. App. 79 (2006). The opinions were conducted by medical professionals, following thorough examination of the Veteran, solicitation of history, and review of the claims file. The Board finds that the opinions are adequate. Additionally, the Veteran has not alleged that any examination is inadequate to decide the current claim, so the examinations are presumed to have been adequate. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of the opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). During the July 2011 hearing before the undersigned, the Veterans Law Judge clarified the issue on appeal and explained the existence of additional evidence that may have been overlooked. The actions of the VLJ supplement VCAA and comply with 38 C.F.R. § 3.103. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Legal Criteria for Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA laws and regulations provide that, if a Veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.309(e). A Veteran who "served in the Republic of Vietnam" between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to Agent Orange. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The listed diseases are: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type II diabetes mellitus (adult-onset diabetes), Hodgkin's disease, ischemic heart disease, chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). In addition, the Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21,260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). As will be discussed below, the evidence does not reflect that the Veteran has been diagnosed as having any of the diseases presumed service connected in veterans exposed to Agent Orange. He is therefore not entitled to service connection on a presumptive basis due to his exposure to Agent Orange. Significantly, however, notwithstanding the foregoing presumption provisions, VA statutes, regulations, and case law reflect that the laws and regulations creating presumptive service connection are liberalizing; in other words, the fact that a Veteran cannot establish entitlement to service connection on a presumptive basis does not preclude him from establishing entitlement on a direct incurrence or other basis. See 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.304(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of 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 rectal adenocarcinoma is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection is also warranted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 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). Analysis for Service Connection Service treatment records made no reference to rectal cancer. At separation, the Veteran denied experiencing piles or rectal disease. His physical examination was normal, including rectal examination. Treatment records, dated June 2007 through July 2008, from Salem Gastroenterology Associates indicate complaints of rectal bleeding and a history of hemorrhoids. Treatment records from Salem Surgical Associates, dated July 2007 through August 2009, show that the Veteran was diagnosed with rectal cancer in July 2007, following complaints of a change in bowel habits, with increased diarrhea and a 30-40 pound weight loss over the past year. Flexible sigmoidoscopy showed circumferential rectal cancer; biopsies were consistent with moderately differentiated adenocarcinoma. A 10 year history of cigarette smoking (1/2 pack per day) was noted; a family history of colon cancer in his mother, at age 63, was also noted. A November 2007 record indicates that the pathology report showed moderate to poorly differentiated adenocarcinoma, without evidence of metastasis. Radiation oncology records from Forsyth Medical Center, dated July 2007 to November 2008, provide a family history of colon cancer and one year of symptoms prior to his diagnosis, including cocygeal discomfort with sitting, rectal bleeding, smaller stools, bowel pressure, and anorexia resulting in a 30+ pound weight loss. Private treatment records from Novant Health Medical Park Hospital, dated October 2007 through November 2007, indicate that the Veteran underwent an abdominoperineal resection, following chemotherapy and radiation therapy for rectal cancer. An August 2009 treatment note from Salem Surgical Associates indicates that the Veteran requested to know whether his rectal cancer was a "sarcoma" or a "carcinoma." According to the note, the Veteran wanted to know for purposes of applying for Veterans Administration disability benefits. The responding provider indicated that a review of the Veteran's chart showed that he had a carcinoma, and that the Veteran was okay with this, as the Veteran felt this meant VA would be more likely to approve his claim if he had a carcinoma. A July 2009 evaluation report for purposes of Social Security Disability benefits indicates that the Veteran complained of tailbone and right hip. He reported a 30 year history of smoking and a family history of colon cancer; he also reported that he served a tour in Vietnam as a door gunner on a helicopter. The diagnosis was status-post rectal cancer with diverting ileostomy and treatment with radiation, chemotherapy, and anterior peritoneal resection. An October 2009 VA Agent Orange examination noted that the Veteran had rectal cancer, considered in remission. His colostomy was noted as well controlled. In August 2010, the Veteran was afforded a VA examination. According to the report, the Veteran had a history of rectal cancer in 2007, with treatment consisting of surgery, chemo and radiation, followed by resection. A March 2010 colonoscopy was normal, without mucosal abnormalities; the VA examiner also reviewed treatment records from 2007 through 2009. The Veteran complained of hip and tailbone pain, weakness, and occasional irritation due to colostomy bag. The Veteran reported that he was on Social Security disability since the beginning of 2010, and was deployed to Vietnam in 1970. Following a physical examination, the assessment was adenocarcinoma of the rectum in 2008; the Veteran was noted as being cancer free, post-chemotherapy and radiation. The VA examiner opined that there Veteran's rectal cancer was not caused by or the result of his military service. The VA examiner also opined that the Veteran's rectal cancer was not caused by or secondary to his service-connected PTSD. The VA examiner noted that the Veteran had multiple risk factors for adenocarcinoma, including polyps, age, and a history of cigarette smoking. A family history of colon cancer was also noted as a risk factor. The Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO in April 2011. At that time, he testified that he was exposed to Agent Orange during his service in Vietnam, when he participated in spraying to kill the vegetation around his base camp. He also testified that he was diagnosed with rectal cancer in October 2009, which he alleged is a soft tissue sarcoma; the Veteran contended that he was entitled to a presumption of service connection for his rectal cancer. According to the Veteran, his surgeon told him that Agent Orange, as a cancer-causing chemical, could have been a causal factor in his rectal cancer. At his hearing before the undersigned in July 2011, the Veteran testified that he was exposed to Agent Orange while serving in Vietnam. He also testified that his rectal cancer, diagnosed approximately 40 years later, was a slow growing cancer. According to the Veteran, his surgeon was unable to state the etiology of the Veteran's cancer, but that he could neither prove nor disprove that it was caused by Agent Orange. Pursuant to the Board's January 2012 remand, the Veteran was afforded another VA examination in February 2012. According to the report, the Veteran reported an onset of rectal bleeding in 2006, which he assumed came from hemorrhoids, as he had hemorrhoids years earlier. As the bleeding worsened, he sought medical care, and a colonoscopy revealed rectal carcinoma. He had chemo and radiation, followed by a complete resection, with colostomy; lymph nodes were negative for metastasis. Regular colonoscopies since treatment have not shown recurrence. Examination showed well healed area where rectum was removed, with scar and colostomy. The VA examiner reviewed surgical records, noting that the pathology report stated the Veteran's diagnosis was adenocarcinoma arising from villous adenoma. The VA examiner noted that this is a type of cancer that originates as a polyp in the colon; risk factors include high meat diet, smoking, age greater than 50, and male gender. It is a carcinoma, not a sarcoma; according to the examiner, a sarcoma is rare and originates in bone, cartilage, fat, and muscle, whereas an adenocarcinoma originates in the bowel. The VA examiner noted that there is no evidence of a cancer recurrence; the March 2010 colonoscopy was normal. The VA examiner opined that it was less than likely to be related to any incident in service, including exposure to Agent Orange. Rectal cancer, according to the VA examiner, is caused by malignant polyps, which are increased in smokers; other risk factors include high meat diets, age greater than 50, and male gender. The VA examiner explained that medical literature does not support a relationship between Agent Orange and colorectal cancer; the VA examiner noted that the Veteran has an adenocarcinoma, which originates in the bowel, and does not have a sarcoma. The VA examiner also opined that the Veteran's colorectal cancer, including residual tailbone pain, is not proximately caused or aggravated by service-connected PTSD. The VA examiner noted that the medical literature does not support a theory of mental illness causing or aggravating colorectal cancer beyond its normal progression. The Board notes that, the Veteran served during a period of war. Likewise, the Veteran's DD Form 214 reflects that his military occupational specialty was light vehicle driver and that he had service in Vietnam from August 1970 to May 1971. As such, the evidence does not suggest, and the Veteran does not contend, that he engaged in combat with the enemy; therefore, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are not applicable. However, he was granted service connection for PTSD on the basis of "fear of hostile military activity" related to exposure to incoming rounds and small arms fire while traveling on convoys as a guard. As explained by the Federal Circuit, in order for a veteran to qualify for entitlement to compensation under the pertinent statutes and regulations pertaining to direct service connection, a veteran must prove existence of a disability, and one that has resulted from a disease or injury that occurred in service. See Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361-1362 (2001). In this case, the Veteran must show that he has currently has residuals of rectal cancer which are due to disease or injury in service or caused or aggravated by service-connected disability. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) (a Veteran seeking disability benefits must establish the existence of a disability and a connection between such Veteran's service and the disability). In this regard, the Board observes that the Veteran has claimed that his rectal cancer residuals (namely, colostomy and tailbone pain) are due to his Agent Orange exposure due to service in Vietnam, or in the alternative due to or aggravated by his service-connected PTSD. The Veteran's claim is limited neither by the theory that he advances nor the precise disability he identifies. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (in direct appeals, all filings must be read in a liberal manner); Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (what constitutes a claim cannot be limited by a lay Veteran's assertion of his or her condition in the application, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim); EF v. Derwinski, 1 Vet. App. 324, 326 (1991) (Board must review all issues reasonably raised from a liberal reading of all documents in the record). In this case, the Veteran's claim must be denied because his residuals of rectal cancer are neither caused nor aggravated by PTSD or due to a disease or injury in service, and he does not have a disease presumed service connected in veterans exposed to Agent Orange. To the extent that the Veteran states that his rectal cancer is due to his Agent Orange exposure, "It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant." Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). At the outset, the Board reiterates that rectal cancer was not shown in service or within one year of separation. Rather, the rectal examination was normal at separation. Furthermore, there is every indication that there was a recent post service change in habits that eventually led to a diagnosis in 2008. Neither the lay nor medical evidence suggests that his rectal cancer was manifest during service or in proximity to separation. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Also rectal cancer was not "noted" during service and there were no characteristic manifestations of the disease process during service. (We again note that that the separation examination was normal). Thus, service connection is not warranted under 38 C.F.R. § 3.303(b). See Walker. The Veteran is competent to report his experiences related to his treatment for rectal cancer and to state that he experiences residual symptoms, but these statements must be weighed against the other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Board finds that the specific findings of the August 2010 and February 2012 VA examiners, indicating that the Veteran's rectal cancer, including all residuals thereof, is not related to his service, including his service-connected PTSD and his presumed Agent Orange exposure, are of greater probative weight than the more general lay assertions of the Veteran, even assuming those lay assertions as etiology were competent. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011) (noting impropriety of the Board categorically discounting lay testimony and requiring the Board to determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence is competent); see also Jandreau at 1377 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Similarly, his implication that he was informed that he has sarcoma, is potentially competent. However, the weight of the evidence reflects that the Veteran does not have a sarcoma or other presumptive disease related to Agent Orange exposure, it follows that his rectal cancer is not due to Agent Orange exposure in service, and service connection on a presumptive basis is not warranted. Similarly, the February 2012 VA examiner found that, as the Veteran's rectal cancer did not develop until many years after service, it was not likely related to the Veteran's service. Additionally, the weight of the evidence reflects that the Veteran's rectal cancer is unrelated to his service-connected PTSD. Moreover, the February 2012 VA examiner reviewed the claims file, examined the Veteran, and reviewed the pertinent medical literature prior to providing a clear medical opinion that the Veteran's rectal cancer originated in his bowel, and thus is not a sarcoma, and is not entitled to presumptive service connection due to Agent Orange. Likewise, the VA examiner also opined that there was no relationship between the Veteran's PTSD and rectal cancer; according to the relevant medical literature, mental illness does not cause or aggravate colorectal cancer or the residuals thereof. See Pond v. West, 12 Vet. App. 341 (1999). As the February 2012 VA examiner explained the reasons for his opinion based on an accurate characterization of the evidence of record, this opinion is entitled to substantial probative weight. See Nieves-Rodriguez, 22 Vet. App. at 304. To the extent that the Veteran contends that his rectal cancer is related to Agent Orange exposure or anything else in service, the probative value of his general lay assertions is outweighed by the that of the specific, reasoned opinion of the February 2012 VA examiner. The weight of the evidence therefore reflects that his rectal cancer is unrelated to service. The Board has considered the assertion that there is a relationship between his cancer and a service connected disease or injury. 38 C.F.R. § 3.310. However, here, there is nothing more than a naked allegation unsupported by competent evidence. Nothing in the record suggests any relationship (causation or aggravation) between a service connected disability and his rectal cancer. Rather, when addressed by a medical professional it was determined that there was no generally accepted evidence supporting a theory of a mental illness causing or aggravating beyond normal progression colorectal cancer. In sum, rectal cancer was not manifest during service or within one year of separation. Rather, there was a remote post-service onset. The disability is not an Agent Orange presumptive disease and there is no credible evidence linking the remote rectal cancer to herbicide exposure or a service-connected disease or injury. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for rectal cancer, claimed as secondary to Agent Orange exposure and/or service-connected PTSD. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Entitlement to service connection for rectal cancer is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs