Citation Nr: 1746934	
Decision Date: 10/20/17    Archive Date: 10/31/17

DOCKET NO.  14-10 788	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

Entitlement to service connection for colon cancer.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C. Edwards, Associate Counsel







INTRODUCTION

The Veteran had active service from March 1956 to March 1958.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by the Winston-Salem, North Carolina, Department of Veterans Affairs (VA) Regional Office (RO); jurisdiction was later transferred to the Los Angeles, California, RO.  In his March 2014 substantive appeal, the Veteran requested a videoconference hearing before a member of the Board, which was scheduled for August 30, 2017.  However, the Veteran failed to appear for the scheduled hearing and did not request that it be rescheduled.  The Board therefore considers the Veteran's request for a Board hearing to be withdrawn.

In this decision, the Board is denying service connection for colon cancer.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

The Veteran's colon cancer neither began during nor was otherwise caused by his military service.


CONCLUSION OF LAW

The criteria for service connection for colon cancer have not been met.  38 U.S.C.A. §§ 1101, 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2016).





REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has considered the Veteran's claim and decided entitlement based on the evidence.  Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (reaffirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

The Board acknowledges that the Veteran has not been provided a VA examination.

In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).

Here, the Board notes that the Veteran's service records do not include an in-service incident of colon cancer or any other gastrointestinal dysfunction.  In addition, colon cancer incepted over 30 years after separation and was not reported for almost 54 years after separation from service; medical records are silent as to chronic symptomatology; and there is a lack of an assertion of continuity of symptoms since service.  Accordingly, there is no indication of a link between this evidence and service, and the Board finds that a VA examination is not necessary to determine the nature and etiology of this disability.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).


Service Connection

Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a), 3.304.  In general, service connection requires competent evidence showing: (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.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances.  See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence).

The Veteran contends that service connection for colon cancer is warranted due to painful symptomology during service.  The Veteran's entrance examination and service treatment records (STRs) have no mention of colon cancer or other gastrointestinal diseases.  In a January 1958 Report of Medical History (ROMH) for separation, the Veteran reported a history of piles (hemorrhoids that become inflamed) or rectal disease.  However, separation physicals performed in January 1958 and March 1958 showed a normal anus and rectum.  Additionally, in the March 1958 ROMH, the Veteran affirmatively denied piles or rectal disease.  The earliest medical records contained in the claims file documenting colon cancer do not occur until decades after the Veteran separated from service.  

The Veteran's post-service medical records are silent as to chronic symptomatology of his colon cancer.  Indeed, VA treatment records show that the Veteran was diagnosed with recurrent colon cancer in May 2005.  Surgical records note that the Veteran had a right hemicolectomy in February 1990, roughly 32 years after separation from service.  Additionally, the record lacks evidence of treatment for colon cancer after 2005.  The Board also notes and the Veteran acknowledges that the record does not include a medical opinion indicating that a medical nexus exists between an in-service incident and the Veteran's colon cancer.  Further, the Board notes that the Veteran's colon cancer was not reported for almost 54 years after separation from service, and there is a lack of an assertion of continuity of symptoms since service.  

As a lay person, the Veteran is competent to report what comes to him through his senses, but he lacks the medical training and expertise to provide a complex medical opinion as to the etiology of a particular cancer.  See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  In Jandreau, the Federal Circuit specifically determined that a lay person is not considered competent to testify when the issue is medically complex, as with cancer. Therefore, while the Veteran disagrees with the conclusion that his colon cancer neither began during, nor was otherwise caused by, his military service, he is not considered competent (meaning medically qualified) to address the etiology of his colon cancer.  As such, his opinion is insufficient to provide the requisite nexus. 

The Board finds that the record lacks evidence of a present disability, in-service incurrence of a disease or injury, and a nexus between the Veteran's colon cancer and a disease or injury incurred during service, including based on continuity of symptomatology or manifestation to a compensable degree within 1 year of discharge from service.

In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  Although grateful for the Veteran's honorable service, the evidence supporting the claim does not rise to the level of equipoise.  See 38 U.S.C.A. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits."); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA ... the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination); Fagan v. Shinseki, 573 F.3d 1282, 1286 (2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility).


ORDER

Service connection for colon cancer is denied.



____________________________________________
JENNIFER HWA
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs