Citation Nr: 1509952 Decision Date: 03/10/15 Archive Date: 03/17/15 DOCKET NO. 09-49 850 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for colon cancer, to include as secondary to Agent Orange exposure. 2. Entitlement to service connection for renal cell cancer (kidney cancer), to include as secondary to Agent Orange exposure. REPRESENTATION Veteran represented by: Joseph R. Moore, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. R. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1968. These matters come to the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The case was remanded in August 2012 to afford the Veteran a Board hearing. The Veteran testified before the undersigned during a Board hearing via videoconference in January 2013. A transcript of the hearing has been associated with the claims file. In April 2013, the Board requested a medical opinion from a health care professional in the Veterans Health Administration (VHA) regarding the etiology of the Veteran's colon and kidney cancers. He was later furnished a copy of the medical opinion in June 2013, and he was provided 60 days for response. The Veteran responded in June 2013 that he had no further argument or evidence to submit and requested that the Board immediately proceed with the adjudication of the appeal. His representative also submitted a presentation in June 2013. A waiver the RO jurisdiction is not required under such circumstances. See 38 C.F.R. §§ 20.903(a), 20.1304(c). In August 2013, the Board denied the Veteran's appeal. In March 2014, the United States Court of Appeals for Veterans Claims (Court) vacated and remanded the Board's denial. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. There is also a paperless, electronic record in the Virtual VA system. FINDINGS OF FACT 1. The Veteran served in Vietnam and is presumed to have been exposed to Agent Orange. 2. Colon cancer is related to service. 3. Kidney cancer is related to service. CONCLUSIONS OF LAW 1. Colon cancer was incurred in active service. 38 U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2014). 2. Kidney cancer was incurred in active service. 38 U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 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 v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the AOJ. Pelegrini v. Principi, 18 Vet. App. 112 (2004). To the extent that the action taken hereinbelow is favorable to the Veteran, further discussion of VCAA is not required at this time. II. Service Connection The Veteran contends that his colon and kidney cancers are related to the dioxin in Agent Orange, a known human carcinogen. The Board notes that as the Veteran served in Vietnam, the Veteran is presumed to have been exposed to Agent Orange. 38 U.S.C.A. § 1116(a)(1)(B)(ii); 38 C.F.R. § 3.307(a)(6)(iii). To the extent that the Veteran reports that he was exposed to Agent Orange during service, that is accepted as fact. Also, the Veteran has been awarded a Purple Heart and the Combat Infantryman's Badge, indicative of combat participation. Although a combat veteran, section 1154(b) is not applicable in this instance, as the Veteran does not claim that his cancers were incurred in combat. See 38 U.S.C.A. § 1154(b) (§ 1154(b) does not establish service connection for a combat veteran; it aids him or her by relaxing the adjudicative evidentiary requirements for determining what happened in service); see Wade v. West, 11 Vet. App. 302, 305 (1998) (holding that "a combat veteran who has successfully established the in-service occurrence or aggravation of an injury pursuant to § 1154(b), must still submit sufficient evidence of a causal nexus between that in-service event and his or her current disability"). A claimant must still generally establish the claim by competent evidence tending to show a current disability and a nexus between that disability and those service events. 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 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). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including malignant tumors, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a)(1); 38 C.F.R. §§ 3.307(a), 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). The Veteran did not claim entitlement to service connection for colon or kidney cancers on any of the above bases. Rather, he claimed that his colon and kidney cancers are due to exposure to Agent Orange. However, colon and kidney cancers are not diseases for which veterans presumed exposed to Agent Orange are entitled to service connection on a presumptive basis. See 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). However, this does not end the Board's inquiry. The lack of availability of service connection on a presumptive basis for a particular disease does not preclude consideration of entitlement to service connection for that same disease on a direct basis. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.304(d). Moreover, in direct appeals, all filings must be read in a liberal manner, and Board must review all issues reasonably raised from a liberal reading of all documents in the record. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009); EF v. Derwinski, 1 Vet. App. 324, 326 (1991). The Board will therefore consider entitlement to service connection for colon and kidney cancers on the other bases noted above. There is no evidence of colon or kidney cancer in service or within one year of separation. Service treatment records reveal no complaints, diagnoses, or treatments for colon or kidney cancer, to include upon entrance and separation examinations. At the time of separation from service in October 1968, the Veteran indicated no problems and was found to be normal with respect to conditions of his colon and kidneys. The genitourinary system, anus, rectum, abdomen and viscera, and urinalysis were reported as negative. The Veteran testified during his January 2013 Board hearing that he was first diagnosed with the cancers in April 2008 and he did not have either cancer during service or within one year of separation. The evidence is clear that colon and kidney cancers did not have its onset in service, a malignant tumor did not manifest within the one year presumptive period, and such cancers did not manifest for many years thereafter. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307(a), 3.309(a). It is axiomatic then neither malignant tumor was "noted" during service. 38 C.F.R. § 3.303(b). Post-service medical records show that the Veteran was diagnosed with both colon and kidney cancers in April 2008. During the evaluation of the colon cancer, he was found to have a left renal mass. The Veteran underwent a partial colectomy and nephrectomy for a simultaneous adenocarcinoma of the colon with metastatic disease to the mesentery and a renal cell carcinoma of the left kidney. Further treatment and operative procedures were undertaken as his colon cancer progressed, to include chemotherapy. The evidence is clear that the Veteran has a diagnosis of colon and kidney cancers and has received treatment as a result of such diagnoses, thus the Board will turn its focus on the crux of the issue, which is the establishment of a link between the Veteran's cancers and his exposure to Agent Orange in service. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (discussion of all evidence by the Board is not required when the Board has supported its decision with thorough reasons and bases regarding the relevant evidence). The Board notes that the Veteran underwent an Agent Orange examination through the VA in November 2008. The VA examiner considered the Veteran's account of his exposure to Agent Orange in service, his past and present medical history and report of symptoms, post-service work history, and completed a physical examination. She noted that the Veteran has been diagnosed with renal cell carcinoma and colon cancer and that he underwent various surgical procedures to treat the conditions. She ultimately found that the Veteran did not have a diagnosis related to Agent Orange exposure at this. The Board accords this November 2008 medical opinion little probative value. Although the examiner conducted an examination of the Veteran, reviewed his past and present medical history, and reviewed the Veteran's reports of in-service and post service symptomatology, the Board finds that the examiner could have elaborated further on her negative nexus finding with supporting rationale. In support of his claims, the Veteran submitted letters and treatment records from his private treating physicians, his own lay statements and assertions, and various Internet articles discussing Agent Orange, human carcinogens, and the effects of Agent Orange on humans. The Veteran's treating physician for the surgical procedures, Dr. D.P., stated in a letter dated September 2011 that the Veteran's course has been extremely unique and complicated beginning with the initial diagnosis of two simultaneous cancers in unrelated organ systems. Although Dr. D.P. thoroughly explains his course of treatment for the Veteran, he does not provide any statement or opinion with respect to a relationship between the Veteran's cancers and Agent Orange exposure. Hence, the Board assigns probative value to Dr. D.P.'s letter with respect to diagnosis, but little probative value as to etiology. The Board notes that a VHA opinion was initially sought in December 2011. In February 2012, the VHA examiner indicated that he was unable to definitively state what relationship there was between Agent Orange and the Veteran's cancers. He believed that there was inadequate scientific data to make such an assessment. Thus, the Board is not able to assign any probative value to this VHA opinion. Along with various print-outs of Internet research and references in conjunction with his own statements, the Veteran submitted a letter dated August 2012 from his treating physician, Dr. A.A.F. The physician indicated that he has treated the Veteran for progressive metastatic colon carcinoma and noted the Veteran's history of renal cell carcinoma and exposure to Agent Orange in service. Dr. A.A.F. opined, "[t]he patient's recent carcinomas could be due to his exposure to Agent Orange. These malignancies could be as likely as not due to the exposure to Agent Orange. Please review the worldwide literature where an increase in these types of carcinomas has been observed in patients exposed to Agent Orange." The Board sought another VHA opinion in April 2013 to address whether there was such a relationship between the Veteran's two primary cancers and his Agent Orange exposure. Dr. C.T. a physician in the hematology and oncology department at a VA medical center provided an expert medical opinion after a complete review of the Veteran's claims file. In her opinion letter dated May 2013, she summarized the Veteran's relevant medical history with respect to his colon and kidney cancers, outlined the course of postoperative treatment, and discussed the history of further complications resulting from the Veteran's hemicolectomy and nephrectomy in April 2008. She ultimately opined that it is more likely than not that both the Veteran's colon and renal cancers are not related to Agent Orange exposure. She provided supporting rationale with various citations to medical references. After review of the world scientific and medical literature, she was unable to find conclusive medical evidence that links Agent Orange exposure to either colon cancer or renal cell carcinoma. Additionally, even though the concurrent diagnosis of two primary cancers is uncommon, the Veteran's diagnosis for both cancers occurred at an age that is typical for both colon and renal cancers and concurrent presentation of both cancers has been described in medical literature. She particularly noted that recently the incidence of stage I renal cancer has increased and the incidence of stage IV renal cancer has decreased which is attributable to the increased use of imaging studies. She opines that, thus, an early diagnosis of renal cell cancer is possible, which would have otherwise gone undetected otherwise. In delivering her medical opinion, the VHA examiner referenced to five different medical authorities as cited on an attached page. The Board finds that this opinion is inadequate as the examiner did not comply with the Board's request to consider and acknowledge the Veteran's family history of no colon or renal cell cancer, the fact that he had never been a smoker, and that his civilian job did not involve exposure to carcinogenic substances. Therefore, the Board cannot assign probative value to this opinion. The Veteran submitted a letter dated February 2013 from Dr. A.A.F. who has treated him for his progressive metastatic colon cancer. The letter referenced the attached print-outs of online discussion forums and articles discussing the relationship between Agent Orange exposure and kidney cancer. The online discussion threads discuss other people's experiences with kidney cancer and herbicide exposure. In his letter, Dr. A.A.F. noted the Veteran's history of colon and kidney cancers, exposure to Agent Orange. He referenced the attached "information and studies that were found in the literature with an association between Agent Orange and renal cell carcinoma. Apart from this there are other numerous studies in the literature in PubMed as well as related carcinoma caused by Agent Orange and still have not been recognized by the US Government." Dr. A.A.F. urged VA to give the Veteran support and assistance. Lastly, the Veteran has submitted a medical opinion from Dr. K., a VA oncology attending physician. Dr. K.'s opinion was based upon a review of the Veteran's folder and peer-reviewed medical literature. He opined that it is at least as likely as not that the Veteran's cancers were caused or aggravated by military service. In support for his conclusion, Dr. K. highlighted that the Veteran was exposed to significant amounts of Agent Orange due to his combat locations and that his family history did not predispose him to elevated cancer risk. He concluded that the intense Agent Orange exposure would have led to higher blood levels of TCDD, which would have prolonged the Veterans exposure and increased his risk of developing cancer. The Board assigns great probative value to this opinion as it was based upon review of the Veteran's record, pertinent medical literature, and Dr. K.'s expertise in the field of oncology. If the disability is of the type for which lay evidence is competent, the Board must weigh that evidence against other evidence of record in making its determination regarding the existence of service connection. See Buchanan, 451 F.3d at 1334-57. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board recognizes that the Veteran is competent to state what treating physicians, such as Dr. A.A.F., have told him during the course of treatment and relate the substance of the submitted articles. See Jandreau v. Nicholson, 492 D. 3d 1372, 1376-77 (Fed.Cir.2007). It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App 171 (1991). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993). The Board finds that the only probative evidence of record supports the Veteran's claims for service connection for colon cancer and kidney cancer. Based on the foregoing, the Board finds that the weight of the evidence supports the Veteran's claims service connection for colon cancer and kidney cancer. ORDER Service connection for colon cancer, to include as secondary to Agent Orange exposure, is granted. Service connection for kidney cancer, to include as secondary to Agent Orange exposure, is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs