Citation Nr: 1328712 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 12-31 408 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for residuals of colon cancer, to include as due to in-service exposure to herbicides. REPRESENTATION Veteran represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran service on active duty from March 1953 to December 1954 and from February 1955 to May 1973, retiring with 20 years of active service. He performed three tours of duty in the Republic of Vietnam and is the recipient of the Combat Infantryman's Badge and Purple Heart. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans Affairs' (VA) Regional Office in Louisville, Kentucky. 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 Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal with the exception of VA treatment records dated from September 2011 to May 2012, which were considered by the agency of original jurisdiction (AOJ) in the February 2013 supplemental statement of the case. The Veteran did not request a hearing in his substantive appeal (VA Form 9); however, his representative requested the first available video or live hearing at the RO in his March 2013 VA Form 646 (Statement of Accredited Representative in Appealed Case). Thereafter, in a June 2013 letter, the Veteran was advised that his requested hearing was scheduled for August 2013. However, in a July 2013 statement, the Veteran's representative indicated that the Veteran would like to withdraw his Board hearing and requested that his appeal be forward to the Board for adjudication. See 38 C.F.R. § 20.702(e) (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicides coincident with service in the Republic of Vietnam. 2. The Veteran does not currently have a disease for which a presumption of service connection is provided under the law based on exposure to herbicides in service. 3. Residuals of colon cancer is not shown to be causally or etiologically related to any disease, injury, or incident in service, to include the Veteran's diet in Vietnam or herbicide exposure, and a malignant tumor did not manifest within one year of service discharge. CONCLUSION OF LAW Residuals of colon cancer was not incurred in or aggravated by the Veteran's active duty military service, and may not be presumed to have been incurred in or aggravated by such service. 38 U.S.C.A. §§ 1110, 1112, 1116, 1131, 1154, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's 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 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA 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. Those five elements include: 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 of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, an October 2011 letter, sent prior to the initial unfavorable decision issued in March 2012, advised the Veteran of the evidence and information necessary to substantiate his service connection claim as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, the letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment records (STRs) and post-service VA treatment records are on file. Also on file are voluminous private treatment records of the Ephraim McDowell Regional Medical Center. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. Further, the Veteran has been afforded a VA examination in connection with his service connection claim in January 2013. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) and Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that such is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the Board finds that the examination is adequate to adjudication the claim for service connection for colon cancer as it included an interview with the Veteran and addressed the relevant matter of the etiology of the colon cancer to military service, to specifically include the Veteran's contention that his diet while in Vietnam contributed to the development of his colon cancer. Therefore, the Board finds that the examination report is adequate to adjudicate the Veteran's service connection claim and no further examination is necessary. Accordingly, the Board finds that all reasonable efforts have been undertaken by VA with respect to the instant appeal, and no further development is required under these circumstances. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Background Service records show that the Veteran performed three (3) tours of duty in the Republic of Vietnam during the Vietnam Conflict. His STRs are negative for any form of cancer, including colon cancer. He was hospitalized for combat incurred fragment wounds in October 1967, at which time a stool examination found that he had a hookworm infestation. Inadvertently associated with the Veteran's STRs are two statements, both dated April 25, 1960, from a private physician, Dr. E. Z. Each statement conveys essentially the same information, and addressed the health of another individual (and later obtained evidence indicates that this other individual was the Veteran's brother). Records of the Ephraim McDowell Regional Medical Center include a February 2001 evaluation report which noted that, following the Veteran's military service, he had not been to any physicians except to occasionally see a family physician. He had been to see a family physician for bleeding from the rectum since Christmas. A barium enema revealed two lesions. He was to have a colonoscopy to remove them and, if this could not be done, a colectomy was recommended. A March 2001 report shows he had a colonoscopy and polypectomy. The diagnosis was adenocarcinoma in situ with clear margins. An April 2001 operative report shows that he had a left hemicolectomy with lower anastomosis. It was noted that a prior colonoscopy had included removal of multiple masses and polyps, two of which had in-situ and some invasive carcinoma. Because the stalks of his polyps appeared questionable he had the colectomy. An April 2001 pathology report of the sigmoid and transverse colon segment and of multiple hyperplastic polyps revealed no evidence of malignancy. Postoperatively, he developed a vental hernia. VA outpatient treatment (VAOPT) records include references, such as in September 2011, that the Veteran had had a colectomy for colon cancer. Similarly, on VA cardiac examination in May 2012 it was reported that colon cancer had been diagnosed in 2002. In an attachment to the Veteran's VA Form 9, Appeal to the Board, he reported that he had suffered from digestive problems since his service in Vietnam. On VA examination in January 2013, the Veteran's claim file was reviewed and the examiner noted the misfiled documents in the STRs, which pertained to the Veteran's brother. The examiner indicated that the Veteran had been diagnosed with colon cancer. The Veteran reported that he believed that colon cancer was related to his having eaten quite a bit of Vietnamese food during his service in Vietnam, where he was also exposed to herbicides. He indicated that he had started passing blood, rectally, in 1980 and that at that time he was told that he had a mass. He had a colonoscopy in 2000 when he was found to have cancer and for which he twice underwent removal of segments of his colon. He had had no recurrence since that time, but had difficulties with recurrent constipation and diarrhea. The examiner reported that the Veteran had had a malignant neoplasm and had undergone a partial colectomy for adenocarcinoma of the colon. The examiner reported that the STRs failed to reveal any evidence of gastric hypertonicity or irritable ulcer (other than as reference in the April 1960 document pertaining to the Veteran's brother), which rendered any relationship of the Veteran's colon cancer to these two clinical entities highly unlikely. Also, the STRs showed no other major medical problems likely to cause colon cancer. In light of the contention that the Veteran's diet while in Vietnam caused colon cancer, the examiner undertook research at the National Library of Medicine using the "PubMed" gateway with search terms appropriate to a Vietnamese diet, Vietnam military service, and adenocarcinoma of the colon. A potential causal relationship of Vietnamese diet or military service in Vietnam with colon cancer was not identified. Principles of Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as malignant tumors, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1137; 38 C.F.R. §§ 3.307, 3.309. While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree. 38 C.F.R. § 3.307(c). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, namely from February 28, 1961, to 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. 38 C.F.R. § 3.307(a)(6)(iii). The Board notes that the Veteran's service personnel records reflect that he served in the Republic of Vietnam from July 1965 to June 1966, August 1967 to November 1968, and from July 1969 to February 1971. As such, the Board finds that the Veteran is presumed to have been exposed to herbicides coincident with such service. 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: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). 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 68 Fed. Reg. 27,630 (May 20, 2003). As will be discussed below, the Veteran does not currently have a disease for which a presumption of service connection is provided under the law based on exposure to herbicides in service. Even though the presumptive service connection is not warranted, the Veteran is not precluded from establishing service connection for residuals of colon cancer with proof of actual direct causation from exposure from an herbicide agent or other link to service. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). As such, the Board has considered whether the Veteran is entitled to service connection for residuals of colon cancer on a direct basis. When a Veteran has engaged in combat with the enemy in active service during a period of war, campaign or expedition, VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions or hardships of such service notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the Veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary and the reasons for granting or denying service connection in each case shall be recorded in full. 38 U.S.C.A. § 1154(b). However, competent evidence of a current disability and of a link between the current disability and service is still required despite the evidentiary effect of 38 U.S.C.A. § 1154(b). See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 507-13 (1995); see also Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996) (noting that 38 U.S.C.A. § 1154(b) "does not create a statutory presumption that a combat Veteran's alleged disease or injury is service-connected," but that it "considerably lightens[s] the burden of a Veteran who seeks benefits for an allegedly service-connected disease or injury and who alleges that the disease or injury was incurred in, or aggravated by, combat service"). The Board notes that the Veteran's service records indicate that he was awarded the Combat Infantryman Badge and Purple Heart, which denote combat. Therefore, the Veteran is entitled to the application of 38 U.S.C.A. § 1154(b). However, he has not claimed that his colon cancer was not documented in his service medical records due to circumstances, conditions, or hardships coincident with his combat service. Moreover, there is no indication that that his service medical records are incomplete as a result of his combat duty. As such, further consideration of the Veteran's claim under 38 U.S.C.A. § 1154(b) is not necessary. Lay evidence is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature." Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Board must weigh any competent lay evidence and to make a credibility determination as to whether it supports a finding of service incurrence; or, if applicable, continuity of symptomatology; or both, sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Layno v. Brown, 6 Vet. App. 465 (1994). The credibility of lay evidence may not be refuted solely by the absence of corroborating contemporaneous medical evidence, but it is a factor. Davidson, 581 F.3d at 1316 (Fed.Cir. 2009). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis Initially, the Board notes that while the Veteran performed three tours of duty in the Republic of Vietnam and, so, is presumed to have been exposed to herbicides, he acknowledged in his notice of disagreement (NOD) and his substantive appeal (VA Form 9) that colon cancer is not presumptively related to in-service exposure to herbicides in Vietnam. Also, the Veteran does not contend that his colon cancer was diagnosed during service or within one year of his May 1973 discharge from military service, or in fact until many years later. He alleges that his colon cancer is the result of a combination of in-service herbicide exposure and a poor diet, particularly a diet that relied heavily upon ingestion of rice and with little or no protein, vegetable, and fruits and also drank unpurified water while in the field for an extensive period of time in Vietnam. In this regard, the Board initially notes that in an attachment to his substantive appeal, the Veteran noted that regulations pertaining to those who were prisoners-of-war (POWs) for at least 30 days take into account malnutrition and digestive issues. In this regard, that regulation, 38 C.F.R. § 3.309(c) does not list any form of cancer as being presumptively due to being a POW. Moreover, it is neither shown nor contended that he was a POW. Thus, the provisions of 38 C.F.R. § 3.309(c) are not applicable. Additionally, as indicated previously, colon cancer is not a disease that is subject to presumptive service connection based on exposure to herbicides. 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 68 Fed. Reg. 27,630 (May 20, 2003). However, the Board has considered whether service connection for residuals of colon cancer is warranted on a presumptive basis in regard to the provisions governing chronic diseases or on direct basis. With regard to the former basis, the record fails to show that the Veteran manifested colon cancer to a degree of 10 percent within the one year following his service discharge in May 1973. In this regard, the earliest evidence of symptomatology due to colon cancer was noted in 2001, when it was observed that he had had blood per rectum since Christmas of 2000. Additionally, while the Veteran has reported having had unspecified digestive problems since his service in Vietnam, such a history, related only recently, is far too vague to constitute competent lay evidence for the purpose of establishing the existence, much less diagnosis, of colon cancer during the many years interim between military service and the earliest evidence, in 2000, of colon cancer. Moreover, a diagnosis of cancer is not something capable of simply lay observation and, so, these vague histories only recently related by the Veteran are not competent evidence for the purpose of establishing either a diagnosis of colon cancer or continuity of symptomatology. As such, presumptive service connection is not warranted for colon cancer. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Pertinent to whether direct service connection is warranted, the Board notes that the Veteran's STRs are negative for a diagnosis of colon cancer. Also, his acute parasitic hookworm infection in-service is not shown to have been other than acute and transitory and it is not otherwise contended or shown to be related to his colon cancer which is shown to have first manifested years after service. Moreover, the January 2013 VA examiner opined that the Veteran's residuals of colon cancer was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In this regard, he noted that the Veteran's failed to reveal any evidence of gastric hypertonicity or irritable ulcer (other than as reference in the April 1960 document pertaining to the Veteran's brother), which rendered any relationship of the Veteran's colon cancer to these two clinical entities highly unlikely. Also, the STRs showed no other major medical problems likely to cause colon cancer. Additionally, after reviewing medical literature, the examiner further opined that a potential causal relationship of Vietnamese diet or military service in Vietnam with colon cancer was not identified. As the VA examiner offered clear conclusions with supporting data as well as a reasoned medical explanation connecting the two, the Board accords great probative weight to his opinion. 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"). There is no contrary medical opinion of record. The Board notes that he Veteran has contended on his own behalf that his colon cancer is related to his active service, to include his exposure to herbicides and his diet while in Vietnam. In this regard, the Board acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a layperson may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Specifically, the etiology of a malignant tumor or cancer, to include that affecting the colon, requires specialized testing and knowledge of cancer and the colon. Indeed, in Jandreau, Id., it was specifically noted that a lay person was not competent to identify a form of cancer. The complexity of diagnosing the nature and etiology of any cancer which the Veteran now has is shown by the voluminous private treatment records on file. Therefore, the Board finds that residuals of colon cancer is not shown to be causally or etiologically related to any disease, injury, or incident in service, to include the Veteran's diet in Vietnam or herbicide exposure, and a malignant tumor did not manifest within one year of service discharge. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for service connection for residuals of colon cancer. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for residuals of colon cancer is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs