Citation Nr: 1327562	
Decision Date: 08/28/13    Archive Date: 09/05/13

DOCKET NO.  06-05 413	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for colon cancer, to include as due to herbicide exposure and/or radiation exposure.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Kristy L. Zadora, Counsel


INTRODUCTION

The Veteran had active duty service from September 1966 to September 1970, including service in Vietnam.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida which, in pertinent part, denied the Veteran's claim for service connection for colon cancer.

In April 2010, the Board remanded the instant matter for additional development and adjudication.

In August 2012, the Board sought an opinion as to the instant claim from the Veterans Health Administration (VHA).  Such opinions were obtained in September 2012, November 2012 and May 2013.  The Veteran was provided a copy of these opinions in May 2013 and permitted an additional 60-day period to provide additional evidence and/or argument.

In July 2013, the Veteran indicated that he had no further argument or evidence to submit and requested that the Board immediately proceed with the adjudication of his appeal.

The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim.  A review of the documents reveals VA treatment records dated through April 2011, which were considered by the RO in the April 2012 supplemental statement of the case (SSOC).


FINDINGS OF FACT

1.  The Veteran served in the Republic of Vietnam during the Vietnam era and, therefore, exposure to an herbicide agent is presumed.

2.  The record does not establish that the Veteran was exposed to ionizing radiation during service.

3.  Colon cancer is not shown to be causally or etiologically related to any disease, injury, or incident during service, to include herbicide exposure and/exposure to ionizing or other radiation.


CONCLUSION OF LAW

Colon cancer was not incurred in or aggravated by the Veteran's active duty service and may not be presumed to have been incurred in or aggravated by such service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311 (2012).   


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

With respect to the Veteran's claim decided herein, 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  See 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 claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 

Prior to initial adjudication of the Veteran's claim decided herein, a letter dated in June 2004 fully satisfied the duty to notify provisions as to claim for service connection.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187.  Since the Board has concluded that the preponderance of the evidence is against the claim for service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims.  Once this has been accomplished, all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error).  In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claim, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence.  Accordingly, there is no further duty to notify. 

The Board also concludes VA's duty to assist has been satisfied.  The evidence of record includes the service treatment records, VA outpatient treatment records, various private treatment records and the VHA opinions.

In addition, the Board has also obtained a VHA opinion in order to adjudicate the Veteran's claim for service connection.  In this regard, the Board notes that the VHA examiner, in opinions dated in September 2012, November 2012 and May 2013, offered an etiological opinion as to the claimed colon cancer and based his conclusions on the interviews with the Veteran, a review of the record, and full examinations.  Moreover, such opinion offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").  As such, the Board finds that the opinion proffered by the VHA examiner is sufficient to assist VA in deciding the instant claim for service connection. 

Additionally, the Board finds there has been substantial compliance with its April 2010 remand directives. 

The Board notes that the Court has recently noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance."  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.)  The record indicates that the Appeals Management Center (AMC) obtained the Veteran's private treatment records from Dr. J. M.  Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand.  See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders).  Therefore, in light of the foregoing, the Board will proceed to review and decide the 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 Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007).  The Veteran has submitted argument and evidence in support of the appeal.  Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication is not affected. 

II. Service Connection

A.  Applicable Laws and Regulations

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).

Establishing service connection generally requires (1) medical 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) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  In a recent decision, the United States Court of Appeals for the Federal Circuit (the Federal Circuit) determined that such an alternative method can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.")

Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").

Service connection for disability based on exposure to ionizing radiation can be demonstrated by three different methods.  See Rucker v. Brown, 10 Vet. App. 67, 71 (1997).  First, there are certain types of cancer that are presumptively service- connected when they occur in 'radiation-exposed veterans."  38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d).  Second, "radiogenic diseases" may be service connected, provided that certain conditions are met, pursuant to 38 C.F.R. § 3.311.  Third, even if the claimed disability is not listed as a presumptive disease under 38 C.F.R.         § 3.309(d) or as a radiogenic disease under 38 C.F.R. § 3.311, service connection may still be granted on a direct basis under 38 C.F.R. § 3.303(d) when it is established that the disease diagnosed after discharge is the result of active service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 

Diseases specific to radiation-exposed veterans are the following: leukemia (other than chronic lymphocytic leukemia), thyroid cancer, breast cancer, cancer of the pharynx, esophageal cancer, stomach cancer, cancer of the small intestine, pancreatic cancer, multiple myeloma, lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), salivary gland cancer, cancer of the urinary tract, bronchio-alveolar carcinoma, bone cancer, brain cancer, colon cancer, lung cancer, and ovarian cancer.   38 C.F.R. § 3.309(d)(2).  Section 3.311(b)(5) requires that bone cancer become manifest within 30 years after exposure, posterior subcapsular cataracts become manifest within 6 months or more after exposure, leukemia become manifest at any time after exposure, and that other diseases specified in § 3.311(b)(2) become manifest 5 years or more after exposure. 

The term "radiation-exposed veteran" means either a veteran who while serving on active duty, participated in a radiation-risk activity.  38 C.F.R. § 3.309(d)(3)(i).   A "radiation-risk activity" is defined as: (1) on-site participation in a test involving the atmospheric detonation of a nuclear device; (2) participation in the occupation of Hiroshima or Nagasaki, Japan, between August 6, 1945, and July 1, 1946; (3) internment as a prisoner of war in Japan which resulted in an opportunity for exposure to ionizing radiation; and (4) service in which the Veteran was, as part of his/her official duties, present during a total of at least 250 days before February 1, 1992, on the grounds of a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or the area identified as K25 at Oak Ridge, Tennessee, or service before January 1, 1974, on Amchitka Island, Alaska, and additional criteria are met. 38 C.F.R. § 3.309(d)(3)(ii). 

Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975).  38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). 

If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e).  Thus, a presumption of service connection arises for a veteran who is presumed exposed to Agent Orange and develops one of the identified conditions.  Effective August 31, 2010, VA has amended 38 C.F.R. § 3.309(e) to add hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease to the list of diseases associated with exposure to an herbicide agent (to include Agent Orange).  75 Fed. Reg. 53202-53216 (August 31, 2010).  Colon cancer is not identified as a condition for such presumptive service connection is warranted. 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

B.  Colon Cancer

The Veteran contends that his colon cancer was caused by his in-service radiation exposure from heavy ground radar, exposure to herbicides and/or exposure to chemicals and jet fuel.  He has not alleged that his colon cancer had its onset during service. 

With regards to the Veteran's contention that his colon cancer was caused by purported in-service exposure to radiation, the evidence of record demonstrates that the Veteran does not qualify as a "radiation-exposed veteran," as he did not participate in a radiation-risk activity as defined at 38 C.F.R. § 3.309(d).  A September 2009 Memorandum from the Department of the Air Force (Memorandum) indicated that there were no records of occupational ionizing radiation exposure monitoring, external exposure data or internal exposure data on the Veteran in the Master Exposure Registry (MRER).  There is nothing in the records to suggest that the Veteran meets any of the criteria for a "radiation-exposed veteran" and the mere fact that his sleeping quarters may have been in close proximity to ground radar does not demonstrate that he qualifies as a "radiation-exposed veteran" under 38 C.F.R. § 3.309(d)(3)(i).  This designation requires participation in a "radiation-risk activity," which as discussed in the previous paragraph, is very limited in its scope. See 38 C.F.R. § 3.309(d)(3)(ii). 

Further, the Board notes that the Veteran has alleged exposure to radiation from ground radar.  The Court has taken judicial notice that naval radar equipment emits microwave-type non-ionizing radiation, which is not subject to review under the ionizing radiation statute and regulations.  See Rucker, 10 Vet. App. at 72-7.   The Veteran's radiation claim is solely based upon his exposure to non-ionizing radiation through this proximity to radar equipment.  Thus, as radar and electromagnetic frequency fields are forms of non-ionizing radiation, and there is no evidence of ionizing radiation exposure, the presumptions for service connection under 38 C.F.R. §§ 3.309(d) and 3.311 (cited above) are not applicable. As such, the basic legal authority governing claims for service connection is applicable here.  Considering the pertinent evidence in light of such authority, the Board finds that service connection for colon cancer, as due to radiation exposure, must be denied on a presumptive basis.

With respect to the Veteran's contention that his colon cancer was caused by his exposure to herbicides, the Board notes that the Veteran served in Vietnam and is therefore presumed to have been exposed to herbicides.  However, colon cancer is not a disease for which service connection may be granted due to herbicide exposure.  Considering the pertinent evidence in light of such authority, the Board finds that service connection for colon cancer, as due to herbicide exposure, must be denied on a presumptive basis.

In addition, service connection may be granted if the evidence demonstrates that the disease arose as a direct result of military service.  The Board will consider the Veteran's theories of entitlement when performing this analysis, including exposure to radiation from heavy ground radar, exposure to herbicides and/or exposure to chemicals and jet fuel.

The September 2009 Memorandum from the Air Force indicated that a meta-analysis was performed on all Air Force personnel who were entered in the Air Force dosimetry program based on their potential for exposure to radar systems. Over 46,000 dosimetric readings were reviewed from personnel that included radar operators, radar maintenance technicians, and radar administrative/supply personnel.  Based on this research, the maximum lifetime dose recorded for any of the individuals monitored was 670 millirems (mrem) (radar maintenance technician).  It was also noted that, of the 4,138 individuals monitored, only 5 percent (217) had any measureable dose, and only four individuals had lifetime doses greater than 300 mrem.  For comparison, the average annual exposure to background radiation for people in the United States is 240 mrem.  Further, the Memorandum indicated that a consensus of scientific advisory bodies is that there were no long-term effects (including cancer) from low-level exposures to radio-frequency radiation (RFR).

A VHA examiner, in opinions dated in September 2012, November 2012 and May 2013, opined that it was less likely than not (probability less than 50%) that the Veteran's colon cancer was causally or etiologically related to service, including his exposure to herbicdes.  The examiner noted that the causes of colon cancer were often environmental in sporadic cases (80%) and sometimes genetic (20%) and that exposure to agents in the environment that may induce mutations in the process of carcinogenesis caused by agents known as carcinogens.  The examiner further noted that specific carcinogens have been difficult to identify but that dietary factors seemed to be involved while the well-known risk factors for colon cancer included age, having polyps, diabetes mellitus, inflammatory bowel disease, obesity, excessive alcohol intake, increased red meat-based diet and a low fiber diet.

The examiner opined that many studies have looked at the potential relationship of arsenic to cause cancer, and that most of the studies have consistently shown an increase in lung cancer risk with higher and more prolonged exposure while other studies have also suggested that prolonged exposure to arsenic pose a higher risk for other cancers such as skin, stomach and kidneys.  The results of these studies have not been consistent and while a relationship between arsenic exposure and colon cancer may be possible, it was the examiner's opinion that the probability was low taking in consideration in the scientific-peer review data regarding the etiologic factor in colon cancer.  The examiner noted that the articles on arsenic and Agent Blue submitted by the Veteran, which included an entry from Wikipedia and an article from the Wisconsin Department of Health Services, were not scientific peer-reviewed articles and were just general reviews about arsenic and Agent Blue.  References like those described do not provide scientific evidence to establish a relationship between colon cancer and arsenic and/or Agent Blue in the examiner's opinion.  Currently, these arsenical herbicides are used extensively as weed-killers and the examiner knew of no scientific reports describing a higher incidence of colon cancer in farmers, golfers or in personnel dealing with these herbicides.

The VHA opinion is consistent with the evidence of record.  Additionally, while the medical evidence of record shows that the Veteran has a diagnosis of colon cancer, the probative evidence of record demonstrates that the Veteran's colon cancer is not related to his service, to include in-service herbicide exposure or purported exposure to radiation.  In this regard, the Board places great probative weight on the VHA examiner's opinion that the Veteran's colon cancer was less likely than not related to service.  This opinion had clear conclusions and supporting data, as well as a reasoned medical explanation connecting the two.  See Nieves-Rodriguez, supra; Stefl, supra.  The Board also notes that the Memorandum indicated that while there was potential for exposure to radiation when working near some radar systems, the Department was unable to determine what specific exposures may have resulted for the Veteran and that the consensus of scientific advisory bodies is that there were no long-term effects (including cancer) from low-level exposures of radiofrequency radiation.  Accordingly, as the probative evidence of records demonstrates that the Veteran's colon cancer is not related to service, service connection on a direct basis is not warranted.

With respect to the post-service medical records, the evidence establishes that the Veteran was diagnosed with colon cancer in October 2002.  As noted above, there is nothing in the Veteran's service records to indicate colon cancer had its onset during service or shortly after service and the Veteran has not alleged such an onset.  Rather, the first medical evidence of colon cancer was in 2002, approximately 32 years after the Veteran separated from service.  The Board points out that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). 

The Veteran submitted copies of two Board decisions, one of which denied service connection for the cause of a veteran's death due to colon cancer and a second which denied service connection for colon cancer for a veteran who had participated in atmospheric nuclear testing.   Pursuant to 38 C.F.R. § 20.1303, decisions of the Board are considered nonprecidential in nature.  Each case is decided on the basis of the individual facts in light of the applicable law and regulations.  Apart from the lack of precedential value, as different evidence in the cases of other veterans may have resulted in the grant of service connection, the prior Board decisions do not compel the conclusion that the facts in this case warrant an award of service connection.  In this regard, the Board notes that neither of the submitted Board decision resulted in an award of benefits due to colon cancer.  Therefore, while the Board has considered the prior Board decisions, they are not binding and does not control the outcome of this appeal; rather, the facts of this particular case must be determinative.

The Veteran has also submitted a number of scientific studies and articles related to radiation, the correlation between particular chemicals and lung cancer, the prevalence of cancer among military personnel exposed to nuclear weapons, the connection between colon cancer and exposure to ionizing radiation, arsenic and Agent Blue.  The Board notes that, with regards to medical treatise evidence, the Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion.  Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998) and Wallin v. West, 11 Vet. App. 509 (1998).   In the present case, the evidence submitted by the Veteran is not accompanied by the opinion of any medical expert.  The mere fact that ionizing radiation may result in colon cancer in some instances is insufficient to establish that the Veteran's colon cancer is due to any radiation that he may have been exposed to during his service.  Moreover, the VHA examiner indicated that the articles related to Agent Blue and arsenic were not were not scientific peer-reviewed articles and did not provide scientific evidence to establish a relationship between colon cancer and arsenic and/or Agent Blue.

Furthermore, as for any direct assertions by the Veteran and/or his representative that there exists a medical relationship between the Veteran's colon cancer and service, the Board finds that no such assertions provide persuasive evidence in support of the claims.  The matter of the etiology of the disability here at issue is one within the province of trained professionals.  See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994).  As none of the identified individual is shown to be other than a layperson without the appropriate training and expertise, neither is competent to render a probative (i.e., persuasive) opinion the medical matter upon which this claim turns.  See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992).  See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ('a layperson is generally not capable of opining on matters requiring medical knowledge').  Hence, the lay assertions of medical nexus have no probative value. 

Finally, colon cancer may be presumed to have been incurred during service here because it did not manifest to a compensable degree within one year of separation from active duty.  

For all the foregoing reasons, the claim for service connection for colon cancer must be denied.  In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  


ORDER

Service connection for colon cancer, to include as due to herbicide exposure and/or radiation exposure, is denied.




____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs