Citation Nr: 1331919 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 08-32 620 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for post-operative colon cancer with liver metastasis, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1968 to July 1970. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2006 rating decision by the New Orleans, Louisiana Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO denied service connection for post-operative colon cancer with liver metastasis. In his February 2007 notice of disagreement with the March 2006 rating decision, the Veteran also expressed disagreement with the denials of service connection for post-operative excision of lung granuloma and for cardiovascular disease. In his September 2008 substantive appeal, however, the Veteran only perfected an appeal of the denial of service connection for colon cancer with liver metastasis. A review of the Veteran's electronic claims file, Virtual VA, revealed VA outpatient treatment records dated February 2006 to March 2012. FINDING OF FACT The Veteran's colon cancer with liver metastasis manifested many years after his discharge from service and is not otherwise etiologically related to service. CONCLUSION OF LAW The requirements for establishing service connection for colon cancer with liver metastasis have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VCAA notice requirements apply to all five elements of a service connection claim, including: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The Veteran received complete VCAA-compliant notice, to include the disability-rating and effective-date elements of a service connection claim in letters dated May 2005 and December 2010. The Veteran has not shown any prejudice in regard to the timing or content of the notice provided. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). VA's duty to assist the Veteran has also been satisfied. 38 U.S.C.A. § 5103A (b), (c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran's service treatment records (STRs) private treatment records, and VA treatment records have been obtained and associated with the claims file. The duty to assist also includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, VA medical records and relevant Social Security Administration (SSA) records. 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1321-23 (Fed. Cir. 2010). The Veteran was provided with a VA examination in November 2011. The examination was adequate because it contained a history obtained from the Veteran and thorough examination relevant to the applicable rating criteria. There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. at 121-22. In December 2010, the Board remanded the claim for a compliant VCAA notice letter, which was sent out in December 2010, and a VA examination, which was conducted on November 2011. The Board finds on review that the AMC substantially complied with the requirements articulated in the Board's remands. D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran has not made the Originating Agency or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and neither has argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced the appellant in the adjudication of his appeal. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds the duties to notify and assist have been satisfied and will proceed to the merits of the Veteran's appeal. Legal Criteria Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d) . Generally, the evidence 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. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and cancer becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Additionally, service connection for certain diseases may be granted based on presumed exposure to certain herbicide agents, even though there is no record of such disease during service. Presumed exposure to an herbicide exists for a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, that included service in the Republic of Vietnam or other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. The Secretary of Veterans Affairs 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); see also Notice, 61 Fed. Reg. 41, 442-49 (1996). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that a claimant is not precluded from establishing service connection with proof of actual causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection may also be granted for chronic disabilities, such as tumors, if such are shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for these chronic disabilities may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b) (2012). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a) (West 2002 and Supp. 2012). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), lay 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 professional. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. 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 claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the 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 appellant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has 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. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Background The Veteran contends that his colon cancer with liver metastasis is the result of exposure to Agent Orange while serving in Vietnam. The Veteran has stated that, in July 2002, he received heart surgery and that, during the treatment, his doctors discovered that he had colon and liver cancer. He further stated that he received surgery for the cancers in November 2002 and began a treatment regimen of chemotherapy. A review of the Veteran's service treatment records is absent for any complaints, treatments, or diagnoses of colon or liver cancer. The Veteran's VA outpatient treatment records reflect that the Veteran had received private treatment for colon cancer with liver metastasis. There was no discussion of etiology of these conditions. A review of the Veteran's private treatment records shows that the Veteran was diagnosed with colon cancer with liver metastasis in October 2002. In November 2002, he received a lower anterior resection of the colon and his liver lesions were treated with radiation. Records show that after the surgery, the Veteran received extensive chemotherapy over the course of years, first with multiple drugs and then with single drugs. The Veteran completed chemotherapy in January 2011. A July 2005 treatment note indicated that the Veteran reported a history of Agent Orange exposure during his military service in Vietnam. At that time, the Veteran's treating oncologist stated that "It would not surprise me if there is a correlation between chemical exposure and epithelial cell mutations in the wall of the colon. The lag time between chemical exposure and clinical symptoms fits with this concept." However, the oncologist did not provide a more definitive statement regarding etiology or supporting medical basis. A December 2005 treatment note also indicated that the Veteran's oncologist was still considering the possibility of a relationship between the Veteran's cancer and Agent Orange, asking "can cancer be a result of this." However, there is no actual finding in the Veteran's private treatment records of a positive etiology between his colon cancer with liver metastasis and Agent Orange exposure. The Veteran was provided with a VA examination in November 2011. At this examination the examiner, who was board certified in medical oncology, noted the Veteran's Vietnam service and exposure to Agent Orange. He also reviewed the Veteran's claims file, to include private treatment records relating to the Veteran's diagnosis and course of treatment for his colon cancer and liver metastasis. The examiner performed objective testing and laboratory work and found that the Veteran was currently disease-free. The examiner opined that the Veteran's colon cancer with liver metastasis was not at least as likely as not causally related to his herbicide exposure in military service. In support, it was provided that it is widely accepted that Agent Orange is very toxic and can cause cancers, among other things. The Veteran was in Vietnam and had exposure for about one year, although the magnitude of which could not be determined. However, the examiner noted that colon cancer is not an uncommon problem, even with no family history. Further, the Veteran did not receive prolonged exposure over the course of many years. Last, there is nothing in the medical literature that provides for any definite causal relationship between Agent Orange exposure and colon cancer. Analysis While the Veteran's exposure to Agent Orange has been conceded, neither colon cancer nor liver metastasis are conditions that VA has determined to have a positive association with exposure to herbicides. The presumptive provisions of 38 C.F.R. § 3.307 are specifically limited to enumerated chronic diseases listed in 38 C.F.R. § 3.309(e) , and colon cancer and liver metastasis are not among the enumerated diseases. Therefore, his claim for service connection for colon cancer on a presumptive basis as due to Agent Orange exposure must be denied. 38 C.F.R. §§ 3.307, 3.309(e). Moreover, the Veteran does not contend and the evidence does not suggest that his claimed disability arose during service or within one year of service. Service treatment records are negative for any complaints, treatment, or findings referable to colon cancer. The earliest medical evidence of record of the disability is an October 2002 treatment note indicating that colon cancer was detected following a heart bypass surgery. The Board notes that the passage of so many years between discharge from active service and the objective 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). The Veteran also testified that his doctors were investigating a possible link between his cancer and Agent Orange exposure during service. However, there is no medical evidence of record suggesting a nexus between his colon cancer and service. To this effect, the only medical opinion of record giving an opinion as to etiology, as seen in the November 2011 VA examination, found it not at least as likely that the cancer was related to Agent Orange exposure in service due to the lack of support for such a correlation in the medical literature and the Veteran's limited exposure to that substance. Further, the examiner found that the chances of developing this type of cancer were relatively common and not related to a specific exposure history, to include family history. The Board further notes that in accordance with section 3 of the Agent Orange Act of 1991, Pub. L. 102-4, 105 Stat. 11, the Secretary has entered into an agreement with the National Academy of Sciences (NAS) to review and summarize the scientific evidence concerning the association between exposure to herbicides used in support of military operations in the Republic of Vietnam during the Vietnam Era and each disease suspected to be associated with such exposure. As required by the statute and agreement, the NAS submits a report to the Secretary every two years regarding the results of their review and summarization of the medical literature. In the latest report, NAS concluded that there remains inadequate or insufficient evidence of an association between exposure to herbicides and colorectal cancers. See Health Outcomes Not Associated With Exposure to Certain Herbicide Agents, Update 2008, 75 Fed. Reg. 81332 (Dec. 27, 2010). Although the Veteran contends that his colon cancer is related to his herbicide exposure during military service, there is no indication that he has specialized training in diagnosing cancers or determining their etiology. See Jandreau, 492 F.3d at 1376-77 (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the question of whether colon cancer is due to herbicide exposure falls outside the realm of common knowledge of a lay person. Such disability can have many different causes, thereby requiring medical expertise to determine the etiology. Thus, the Veteran's opinion on this question is not competent evidence. In regard to continuity of symptoms, the Board find that the Veteran's claimed low colon cancer with liver metastasis, as it involves cancer, is properly afforded such consideration, as tumors are one of the enumerated conditions in 38 C.F.R. § 3.309(a). Walker, 708 F.3d 1331. In this regard, the Board finds that the Veteran has not provided competent and credible testimony that his symptoms of colon cancer with liver metastasis have continued since service discharge. See Buchanan, 451 F.3d at 1336-37; Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The Veteran is competent to testify about the onset and continuation of his cancer, as such symptoms are an observable symptom within the realm of his personal knowledge. The Board also finds that the Veteran is credible about his onset of symptoms beginning in 2002 as this has been consistent with his statements of record and supported by the earliest dates of treatment reflected in his private treatment records. However, the Board finds that, although the Veteran's statements on this issue are probative, they do not support a showing of continuity because the symptoms did not continue from either the time that the Veteran was discharged from the service. In sum, the Veteran does not contend and the evidence does not show his colon cancer manifested in service or within one year following discharge from service, and there is no medical evidence of record suggesting a connection between the Veteran's colon cancer and service, to include in-service exposure to herbicides. Accordingly, the preponderance of the evidence is against the claim and service connection for colon cancer is denied. 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 of entitlement to service connection for 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(b); 38 C.F.R. § 3.102; Gilbert. ORDER Entitlement to service connection for post-operative colon cancer with liver metastasis, to include as due to herbicide exposure, is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs