Citation Nr: 1327507 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 08-32 066 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for colon cancer. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from October 1978 to December 1987 and from November 1990 to September 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Board in January 2013 determined that additional medical input was needed and requested a medical opinion from a Veterans Health Administration (VHA) physician pursuant to 38 U.S.C.A. §§ 5103A, 7109 (West 2002 & Supp. 2012); 38 C.F.R. § 20.901 (2012). That opinion was received by the Board in March 2013. The Board found the VHA opinion was inadequate and requested an addendum opinion in March 2013. However, the physician who wrote the March 2013 VHA opinion was unavailable. Thus, in May 2013, the Board requested a new VHA opinion. That opinion was received in July 2013. Ordinarily, a copy of the opinion obtained is furnished to the appellant for review and submission of additional evidence and/or argument, prior to the Board's entry of a final decision. However, in this instance the record now permits a grant of the benefits sought on appeal, thereby obviating the need to provide notice and an opportunity to submit additional evidence or argument. A June 2012 report of contact reflects that the appellant requested a hearing before the Board. However, she did not specify what type of hearing she wanted. In September 2012, the Board sent the appellant a letter to clarify the type of hearing she wanted. The letter noted that if the appellant did not respond within 30 days from the date of the letter, the Board would assume that she did not want a hearing and proceed accordingly. The Board did not receive a response from the appellant within 30 days. Thus, her hearing request is deemed to be withdrawn and the Board may proceed to adjudicate the appeal. The Board notes that the appellant also completed an appeal to the Board on the issue of entitlement to service connection for irritable bowel syndrome. In a June 2012 rating decision, the RO granted service connection for irritable bowel syndrome. As the claim was granted in full, the issue is not before the Board. In a February 2013 letter, the appellant requested entitlement to service connection for IBS, chronic gastroenteritis and gastritis, and fibromyalgia. The appellant is service-connected for IBS, but it appears the appellant requested a higher rating. Service connection for fibromyalgia of the right and left hand was previously denied in a September 2011 rating decision. The issues of entitlement to service connection for chronic gastroenteritis and gastritis, whether new and material evidence has been received to reopen a claim for entitlement to service connection for fibromyalgia, and entitlement to a compensable evaluation for IBS have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT The competent medical evidence of record demonstrates that the appellant's colon cancer is related to service. CONCLUSION OF LAW The appellant's colon cancer was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. 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 appellant 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 appellant). The Board must assess the credibility and weight of all 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. 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. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Notice and Assistance The claim has been granted, as discussed below. As such, the Board finds that any defect related to VA's duties to notify and assist is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2011); 38 C.F.R. § 3.159 (2012); Mlechick v. Mansfield, 503 F.3d 1340 (2007). II. Legal Criteria Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet.App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet.App. 303 (2007). Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the post service symptoms. Savage v. Gober, 10 Vet.App. 488 (1997). III. Analysis The appellant asserts that she is entitled to service connection for colon cancer. For the reasons that follow, the Board concludes that service connection is warranted. The appellant was discharged from service in September 2003. She was diagnosed with colon cancer in September 2006. In a November 1989 report of medical history, the appellant denied having frequent indigestion or piles or rectal diseases. She did note having blood in her urine in the past. The appellant's service treatment records from her period of service beginning in November 1990 reflect that she was treated for gastrointestinal symptoms in service. The appellant's service treatment records, including records from September 1997, March 1998, June 1998, March 1999, and April 2000, show that she was diagnosed with gastroenteritis and gastritis. A November 1997 service treatment record indicates the appellant had experienced diarrhea four times in the past two to three months. She reported that it first started on and off 2 to 3 years ago and she took Pepto-Bismol. A February 1999 service treatment record indicates the appellant had intermittent left flank pain. In a February 2003 report of medical history, the appellant did not indicate that she had any gastrointestinal problems. An October 2003 discharge examination report reflects that the appellant's gastro-urinary system was normal. A December 2004 private treatment record reflects that the appellant had an upper endoscopy. The final impression of the endoscopy was gastritis and an arteriovenous malformation (AVM) of the stomach. A July 2006 private treatment record reflects that the rectal bleeding was first noted 2 weeks ago with 2 days of diarrhea. An August 2006 private treatment record notes that the appellant reported experiencing bruising of an unknown cause and left abdomen pain for the past two months. A September 2006 private treatment record reflects that the appellant had thrombocytopenia, ITP, and had taken intravenous immunoglobulin for the past five years. The appellant had a sigmoid colectomy with stapled anastomosis in November 2006. The appellant was afforded a VA examination in May 2012. The VA examiner found that the appellant had irritable bowel syndrome (IBS) that was at least as likely as not incurred in service. The VA examiner further opined that the appellant's adenocarcinoma of the colon, status post-colon resection, was not related to active duty military service. The VA examiner stated that IBS was not a condition associated with the development of malignancy of the intestine, it is a functional disorder of the neuromuscular innovation with spasticity of bowel without intestinal histopathological manifestations of cancer. However, the VA examiner did not provide an opinion as to whether the appellant's colon cancer, which was diagnosed three years after her discharge from service, was related to her in-service gastrointestinal symptoms. Thus, the VA opinion is inadequate. The Board obtained a VHA opinion in March 2013. However, the VA physician failed to fully address the questions asked by the Board. Thus, the VHA opinion is inadequate. Another VHA opinion was obtained in June 2013. The VA physician found that it is at least as likely as not that the appellant had colon cancer that was incurred while she was in active military service. The physician stated that the likelihood of the appellant having a pre-malignant process that was incurred while she was on active duty in the military that eventually transformed into a malignant process is very high. In the rationale, the physician stated that based on the natural history and time course of the development of colon cancer in the majority of colon cancer patients, the patient had a high likelihood of having at least a pre-malignant colon polyp in September 2003, and possibly this polyp had already transformed into colon cancer. The physician stated that it is quite possible that the appellant had a pre-malignant colon polyp present for a period of months to years before her completion of active military service. The precise point of the pre-malignant colon polyp transforming into a malignant colon cancer is unknowable, in the VA physician's opinion. The VA physician stated that the site of the appellant's colon cancer with her resection was in the sigmoid colon with a sigmoid colectomy reportedly performed in November 2006. The potential of colon cancer and/or premalignant colon polyps presenting symptoms are much more likely if the colon cancer is located in the rectum or sigmoid colon. In these areas of colon cancer, a patient is much more likely to exhibit symptoms of obvious rectal bleeding, diarrhea, or abdominal cramps as compared to the right side of the colon, where colon cancer often is without symptoms until a very advanced stage. Therefore, based on the sigmoid colon location of the appellant's colon cancer, the VA physician considered it as likely as not that some gastrointestinal symptoms were occurring from colon cancer as of September 2003. He noted that there could be considerable overlap of symptoms between sigmoid colon cancer and symptoms of IBS. The Board finds the June 2013 VHA opinion to be highly probative as the VA physician reviewed the claims file and provided a thorough rationale for the opinion. Based on the evidence of record, the Board finds that the appellant is entitled to service connection for colon cancer. The appellant was discharged from service in September 2003 and diagnosed with colon cancer in September 2006. During service, the appellant experienced gastrointestinal symptoms which were diagnosed as gastroenteritis and gastritis. She also reported having diarrhea. In the June 2013 VHA opinion, the VA physician found that the likelihood of the appellant having a pre-malignant process that was incurred while she was on active duty in the military that eventually transformed into a malignant process is very high. The VA physician found it is at least as likely as not that the appellant had colon cancer that was incurred while she was in the active duty military service. As noted above, the Board finds the VHA opinion to be highly probative as the VA physician provided a thorough rationale for the opinion. Although the May 2012 VA examiner found that the appellant's adenocarcinoma of the colon was not related to active duty military service, the VA opinion is inadequate, as discussed above, and thus not probative. The Board finds that a preponderance of the probative, competent evidence demonstrates that the appellant had colon cancer that was incurred in active service. Giving the appellant the benefit of the doubt, service connection for colon cancer is warranted. ORDER Entitlement to service connection for colon cancer is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs