Citation Nr: 1337588 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 10-47 865 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for rectal cancer. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Widow ATTORNEY FOR THE BOARD H.J. Baucom, Counsel INTRODUCTION The Veteran had active service from July 1979 to July 2003. This matter comes to the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee which denied service connection for rectal cancer (also claimed as colon cancer). During then pendency of the appeal the Veteran died in May 2012. The appellant, the Veteran's widow, was determined to be a valid substitute claimant, and the appeal is continued. In July 2012 the appellant filed a claim for cause of death. In June 2013, a Board videoconference hearing was held at the RO before the undersigned; the transcript is of record. At the Board hearing the appellant gave testimony on both the issue of service connection for rectal cancer, and service connection for cause of death, due to rectal cancer. The appellant is allowed to provide testimony at any time during the claim. Her testimony before the Board, however, does not mean the issue of service connection for cause of death is currently before the Board. At the time of the hearing a rating decision adjudicating the issue of service connection for cause of death had not been issued, therefore there was no rating decision to appeal. In August 2013 a rating decision was issued denying service connection for cause of death. A notice of disagreement has not been received yet. The appellant is advised that she has one year from the date of the rating decision, August 2013, to file a notice of disagreement if she so chooses. The Veteran's virtual VA file has been reviewed which includes medical treatment records. FINDING OF FACT Rectal cancer was not manifest during service or within one year of separation. Rectal cancer is not attributable to service. CONCLUSION OF LAW Rectal cancer was not incurred in or aggravated by service and malignant tumors may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131. 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.103, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance 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, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). A May 2009 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; the appellant did not identify any additional private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The appellant was also afforded an opportunity to present testimony at a hearing before the Board. During the hearing, the undersigned Veterans Law Judge (VLJ) clarified the issue on appeal, explained the concept of service connection for rectal cancer, and determined whether there was outstanding evidence relevant to the case including suggesting the submission of additional evidence to support the claim. The VLJ also left the record open for a 60-day period following the hearing to allow for the submission of such additional evidence. The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing. 38 C.F.R. § 3.103. A VA examination was conducted in November 2011; the appellant has not argued, and the record does not reflect, that this examination was inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examination was adequate as the examiner reviewed the record, evaluated the Veteran and provided a thorough opinion with supporting rationale as to whether the Veteran's rectal cancer was related to service. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Service Connection A finding that a veteran engaged in combat with the enemy under 38 U.S.C.A. § 1154(b) requires that the Veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, and does not apply to veterans who served in a general "combat area" or "combat zone" but did not themselves engage in combat with the enemy. See VAOPGCPREC 12-99 (October 18, 1999). Although he served in Southwest Asia, the Veteran did not contend, and the evidence did not reflect, that he participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. The combat provisions of 38 U.S.C.A. § 1154 are therefore not applicable in this case. 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, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease first 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). Continuous service for 90 days or more during a period of war, or peace time service after December 31, 1946, and post- service development of a presumptive disease, such as malignant tumors, to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. See 38 C.F.R. §§ 3.307, 3.309 (a). The Veteran separated from service in July 2003. He was diagnosed with rectal cancer in February 2009. Although the Veteran contends that he had rectal bleeding in service the service treatment records contradict this assertion as examinations were affirmatively normal, and the Veteran himself repeatedly denied a history of rectal bleeding at the time. As there is no evidence of a malignant tumor during service or within one year of service, service connection on a presumptive basis is not warranted. Furthermore, because rectal cancer was not noted, diagnosed and was without characteristic manifestations of the disease process during service, the provisions of 38 C.F.R. § 3.303(b) are not applicable. Although the Veteran had service in Southwest Asia during the Persian Gulf War, 38 C.F.R. § 3.317 is not for application as the Veteran had a known clinical diagnosis, rectal cancer. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The appellant contends that the Veteran developed metastatic rectal cancer as a result of exposure to chemicals during the Persian Gulf War. Prior to his passing, the Veteran reported that he had experienced rectal bleeding beginning in the 1990s during service, and that this was a symptom of his rectal cancer beginning in service. Service treatment records demonstrate no objective or subjective evidence of rectal bleeding during service. In fact, the records affirmatively demonstrate the opposite, that the Veteran's rectum was normal. Medical examinations showed a normal anus and rectum and the Veteran denied a history of these conditions. An April 2001 medical examination with a rectal exam noted was found to be normal. The January 2003 medical examination was also found to be normal for "anus and rectum." In his January 2003 report of medical history the Veteran denied that he had "rectal disease, hemorrhoids, or blood from rectum." The Veteran's contemporaneous reports of no symptomatology are more probative then his post-service reports of symptomatology. While the Veteran was competent to report experiencing rectal bleeding in service, his statements are not found to be credible as such post service reports are inconsistenet with the contemporaneous service records. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The service treatment records disprove the Veteran's contentions that he had rectal bleeding in service. Buczynski v. Shinseki, 24 Vet. App. 221, 226-27 (2011) (where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist). We also note that the report of in-service bleeding is inconsistent with the initial evaluation for rectal cancer. When seen in 2009, there was a report of colonoscopy in February 2009 after finding blood in the stool "on and off' for about one year. We find his report for treatment purposes to be consistent with the service record. In addition, we find that his report for treatment and evaluation purposes to be very probative as to date of onset of symptoms. In sum, the Veteran has not always been a consistent historian and his earlier reports are found to be more credible. In November 2011 a VA examination of the Veteran was conducted. At the time the Veteran reported that he was diagnosed with rectal cancer in 2009. He stated that he began having symptoms in the military described as feeling like he would faint, and also reported having bloody bowel movements described as blood after wiping starting in the last 1990s and more frequently when he was stationed at Fort Eustis. A colonoscopy was not done until 2009 at which time the Veteran was found to have stage three rectal cancer. He underwent surgery and was currently having chemotherapy. The Veteran reported being in transportation in the 18th airborne corps in Southwest Asia and reported experiencing environmental exposures related to oil fields. He reported seeing dead animals with no visible signs of trauma or causes of death and that he and other men would wear their masks out of concern about exposures. He felt that the dead animals were evidence of contaminants in the area, although he could not name any particular chemical or other environmental exposure. The Veteran reported that his other symptoms, such as feeling faint, went away after he had surgery to remove the cancer. He reported that he did have abdominal pain during his time in SW Asia and had diarrhea a lot. The Veteran felt that as he was diagnosed at such a young age and because he spent so many years in service, he believes his cancer was caused by exposures during service. The examiner noted that the February 2009 pathology report diagnosed adenoma of colon, adenocarcinoma, moderately differentiated, infiltrating rectum (morphology is consistent with primary rectal tumor) The examiner was asked to provide an opinion as to whether or not the Veteran's rectal cancer was due to exposure to environmental hazards to include burning oil fires during his service in Southwest Asia between September 1990 to April 1991. The examiner reviewed the service treatment records, noting that there was no objective evidence to corroborate the Veteran's statement that he had rectal bleeding or other symptoms consistent with the onset of rectal cancer during service. The examiner reviewed letters from the Veteran's treating physicians. A May 2009 letter from Dr. FC, the Veteran's treating oncologist, reported that the Veteran was diagnosed with stage 3 rectal cancer recently, and that the Veteran was a gulf war Veteran and was exposed to different chemicals during that time. A September 2009 letter from Dr. FC stated that the Veteran did not have a family history of colon or rectal cancer, he denied cigarette or alcohol use, and did not have a personal history of inflammatory bowel disease or other cancers all of which could be risk factors leading to the development of rectal cancer. Dr. FC opined that as there were no other obvious risk factors that could be identified, it is possible that his exposure different chemicals in service in the gulf war could have resulted in the development of his rectal cancer. In a July 2010 letter Dr. YG reported that the Veteran had service in the military and he may have been exposed to different chemicals during this time but Dr. YG reported that he did not have complete knowledge of these exposures. He suggested that a detailed evaluation of this chemical exposure may find some link between his cancer and the exposure. In an August 2010 letter Dr. YG repeated his prior letter, adding a sentence that he had reviewed the Veteran's VA medical records pertaining to his rectal cancer. The examiner also reviewed and summarized private and VA treatment records, the RO hearing transcript, journal and internet articles. The examiner opined that while the possibility exists that some remote environmental exposure contributed to the Veterans rectal cancer. It is impossible to say with at least 50 percent probability that any particular exposure in SW Asia contributed. The examiner explained that the specific exposures that the Veteran may have experienced are not well elucidated, and the fact that the Veteran may have been near an environmental contaminant such as a burn pit does not prove that ingestion or inhalation or other route of exposure actually occurred, especially if the Veteran donned a protective mask during these occasions which would limit or prevent inhalation exposure. The examiner also explained that there is a dearth of compelling evidence in the medical literature demonstrating that chemical exposures or environmental exposures other than dietary factors contribute significantly to the development of rectal cancer. The examiner reported that the one well elucidated risk factor from an environmental perspective is dietary. The examiner noted that the opinions of Doctors FC and YG offer no evidence showing a correlation between a particular exposure and the Veteran's rectal cancer and that neither doctor states clearly that they believe with any degree of certainty that environmental exposures in SW Asia contributed to the Veteran's rectal cancer, only that the possibility exists. The examiner stated that he understood the Veteran's contention as to why he developed cancer at a relatively young age without the typical risk factors (age, smoking, family history), the questions is whether it is more likely than not that there is a relationship between the rectal cancer and environmental exposures in SW Asia. The examiner reported that the objective evidence in the record did not show any objective evidence of environmental exposures; that the Veteran's subjective report of exposure are not corroborated by the record and are not corroborated by any medical complaints logged during service; that there is a lack of compelling scientific research demonstrating a correlation between rectal cancer and environmental exposure other than dietary intake; and that the Veteran's history combined with the objective evidence in the record and the known risk factors for rectal cancer do not provide a sufficient rationale to make the assertion of a relationship with at least a 50 percent probability. The examiner then opined, based on the above rationale, that it is less likely than not that the Veteran's rectal cancer is related to any exposure event occurring during the Veteran's military service in Southwest Asia. The weight of the evidence is against the claim. There is no probative evidence that rectal cancer began in service. The Veteran was competent to report symptomatology that he experienced, such as bleeding, however his statements are found to be not credible and contradicted by the evidence of record. The opinions of Doctors FC and YG have little probative value, as they state that as the Veteran did not have any other risk factors for rectal cancer, there was a possibility that environmental exposures in service contributed to the Veteran's rectal cancer. Neither opinion is definitive, only possible, and the rationale provided is that the other causes had been ruled out; therefore the opinions are of little probative value. The VA examiner's opinion provides a definitive answer that rectal cancer is less likely than not related to service, and provides a lengthy and thorough rationale and the VA examiner's opinion is given greater probative value. The weight of the evidence is against a finding that rectal cancer began in service or is related to any injury or disease in service; service connection for rectal cancer is not warranted. ORDER Service connection for rectal cancer is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs