Citation Nr: 1750181 Decision Date: 11/06/17 Archive Date: 11/17/17 DOCKET NO. 11-12 607 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for colon cancer. 2. Entitlement to service connection for a right ankle disability, to include as secondary to bilateral pes planus. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. S. Kyle, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1967 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This matter was previously before the Board in July 2014, when it was remanded for further development. FINDINGS OF FACT 1. The Veteran's colon cancer is not the result of a disease or injury in service, to include exposure to aviation fuels. 2. The Veteran's right ankle disability is not the result of a disease or injury in service; or proximately due to, or aggravated by, a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for colon cancer have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for service connection for a right ankle disability have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Principles of Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted when a claimed disability is found to be proximately due to or the result of a service-connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310. The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). VA shall give the benefit of the doubt to the claimant when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. II. Service Connection for Colon Cancer The Veteran seeks entitlement to service connection for colon cancer, asserting the disability is the result of exposure to harmful chemicals in aviation fuels due to his service as an aviation fuel supply specialist. The record establishes the Veteran has colon cancer and was exposed to potentially carcinogenic chemicals in aviation fuels during service; therefore, the current disability and in-service injury elements of his service connection claim have been established. The only issue that remains is whether there is a nexus between the in-service injury and the current disability. In July 2017, the Board obtained a nexus opinion regarding the Veteran's claim from an oncologist with the Veterans Health Administration (VHA). The Board asked the expert to address whether the Veteran's colon cancer is at least as likely as not the result of or otherwise associated with exposure to aviation fuels in service. E.K., M.D., provided a detailed analysis of current literature on this topic. Based on this review of literature, E.K., M.D., determined the Veteran's colon cancer is less likely than not the result of exposure to aviation fuels in service. E.K., M.D., acknowledged chemicals found in aviation fuel, to include benzene, have been shown to have carcinogenic properties, but he explained that an association between these chemicals and colon cancer has not been found after numerous studies. He ultimately concluded it is less likely than not that exposure to aviation fuel is a risk factor for colon cancer based on the available research. The July 2017 VHA is corroborated by a March 2015 opinion from a VA examiner, who explained the Veteran has multiple positive risk factors for colon cancer, to include advanced age, male gender, positive history for irritable bowel syndrome, and obesity. Based on the presence of these risk factors, the March 2015 VA examiner also concluded the Veteran's colon cancer is less likely than not the result of a disease or injury in service, to include exposure to aviation fuels. In sum, the Board finds the preponderance of evidence is against a finding that the Veteran's colon cancer is the result of disease or injury in service, to include exposure to aviation fuels, based on the findings of the March 2015 VA examiner and the author of the July 2017 VHA opinion. The Board does not doubt the Veteran sincerely believes his colon cancer is associated with in-service exposure to aviation fuels, given there is some of evidence of carcinogenicity for the chemicals found therein; however, the Veteran does not have the requisite expertise or training to address a complex medical issue such as the etiology of his colon cancer. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Experts in this field have considered an accurate factual history of the claimed disability and determined the Veteran's specific type of cancer is not likely the result of exposure to aviation fuels, especially in light of the multiple positive risk factors for colon cancer that are present in his case. The Board notes there is no indication any presumptive provisions apply with respect to the Veteran's claim, as colon cancer manifest almost forty years after separation from service with no exposure to radiation noted in or raised by the record. As preponderance of evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the Veteran's service connection claim for colon cancer must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Service Connection for a Right Ankle Disability The Veteran seeks entitlement to service connection for a right ankle disability, asserting the disability is the result of a December 1968 injury that was incurred when he jumped out of bed. He has also claimed the disability is proximately due to, or aggravated by, bilateral pes planus. The record establishes the Veteran has osteoarthritis of the tibiotalar joint. Service treatment records also confirm the December 1968 injury. As such, the current disability and in-service injury elements of his direct service connection claim have been established. However, service connection has not been established for bilateral pes planus. An unappealed April 2015 rating decision denied service connection for bilateral pes planus; therefore, this disability cannot serve as the basis for a secondary service connection claim for the right ankle. Thus, the only issue that remains is whether there is a nexus between the December 1968 injury and the current disability. In April 2010, a VA examiner provided a nexus opinion indicating the Veteran's current right ankle disability is less likely than not the result of the injury noted in service treatment records. The April 2010 VA examiner explained the increased arthritic changes in the Veteran's ankle are the result of severe pronation bilaterally due to his bilateral pes planus. As previously noted, service connection for bilateral pes planus was denied by an unappealed April 2015 rating decision; therefore, the opinion of the April 2010 VA examiner attributes the development of osteoarthritis of the right tibiotalar joint to a nonservice-connected disability. In March 2015, a second VA examiner provided an opinion addressing the right ankle. The March 2015 VA examiner also concluded the Veteran's current right ankle disability is less likely than not the result of the injury noted in service treatment records. The March 2015 VA examiner noted the Veteran has similar arthritic changes in both the left and right. The March 2015 VA examiner explained these changes are a result of bilateral pes planus in combination with morbid obesity and are not related to right ankle sprain in service. The March 2015 VA examiner further explained the continual wear and tear on the ankle joints as a result of bilateral pes planus in combination with morbid obesity first gave rise to chronicity of right ankle symptomology in approximately 2010, providing further support for a finding that the Veteran's disability developed after his separation from service. In so much as the Veteran's right ankle disability constitutes a chronic disease within the meaning of 38 C.F.R. § 3.309, the Board finds the presumptive provisions of 38 C.F.R. § 3.307(a)(3) relating to chronic diseases are not for application because the evidence does not establish arthritis manifest within one year of the Veteran's separation from service. The first evidence confirming degenerative changes of the right ankle is found in VA treatment records from 2010, almost forty years after the Veteran's separation from service. If a chronic disease is diagnosed after separation from service, the nexus requirement of a claim for service connection can be proven by evidence of a continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). To the extent that the Veteran has reported continual symptoms of right ankle pain since service, the Board finds such statements as to continuity of symptomatology are outweighed by the probative value of the April 2010 and March 2015 opinions both of which indicate the degenerative changes of the Veteran's right ankle are more likely the result of wear and tear on the joint as result of bilateral pes planus in combination with morbid obesity. Further, a chronic condition was not noted in service as the Veteran's in-service injury was assessed as a right ankle sprain. Thus, further consideration of whether a nexus is established by evidence of a continuity of symptomatology is not warranted. Ultimately, the preponderance of evidence is against a finding the Veteran's current right ankle disability is the result of an in-service injury or disease. As such, the benefit-of-the-doubt doctrine does not apply, and service connection for a right ankle disability must be denied. ORDER Entitlement to service connection for colon cancer is denied. Entitlement to service connection for a right ankle disability is denied. ____________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs