Citation Nr: 1753491 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 13-22 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for malignant neoplasm of the rectum, requiring colostomy, as secondary to service-connected diabetes mellitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jacquelynn M. Jordan, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran served in the U.S. Army from September 1958 to October 1988. For his meritorious service, the Veteran was awarded (among many other decorations) the Vietnamese Cross of Gallantry with Palm and Army commendation (2d Oak Leaf Cluster). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In August 2016, the Board requested an opinion from a specialist with the Veterans Health Administration (VHA), to address whether the Veteran's colorectal cancer was caused by or related to the Veteran's service-connected diabetes mellitus. In February 2017, a specialist reviewed the file and requested additional information. In March 2017, the Board remanded this issue for additional development. That development has been accomplished. The claim is now before the Board. FINDINGS OF FACT The preponderance of the evidence weighs against associating the Veteran's malignant neoplasm of the rectum, with his service-connected diabetes mellitus. CONCLUSION OF LAW The criteria for the establishment of service connection for malignant neoplasm of the rectum, requiring colostomy, as secondary to service-connected diabetes mellitus are not met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran has not raised any procedural arguments regarding the notice or assistance provided in this case. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service Connection In general, service connection may be granted for disability or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303 (d). To establish service connection for a disability, a Veteran 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disability may be service-connected if the evidence of record shows that the Veteran currently has a disability that was chronic in service or was chronic as defined by regulation with continuity of symptomatology demonstrated after service. 38 C.F.R. § 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A disability that is proximately due to or the result of a service-connected disease or injury shall be service-connected. When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a) (2015). Secondary service connection may also be established for a non-service connected disability, which is aggravated by a service-connected disability. In that instance, the Veteran will be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b) (2015); Allen v. Brown, 7 Vet. App. 439 (1995). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Malignant Neoplasm of the Rectum The Veteran seeks service connection for malignant neoplasm of the rectum, requiring colostomy, as secondary to service-connected diabetes mellitus, type 2. A review of the Veteran's service treatment records (STRs) is unremarkable for any symptoms, complaints, treatment or diagnosis for malignant neoplasm of the rectum. Post-service VA medical records show a diagnosis of cancer of the rectum as early as 2004. The Veteran has advanced the theory of entitlement that his cancer and colostomy are the result of his service-connected Type II diabetes mellitus. The September 2017 VA examiner specifically identified and discussed the Veteran's contentions and theory of entitlement. The examiner determined that it is less likely than not that the Veteran's colorectal cancer was caused by or related to the Veteran's service-connected diabetes mellitus. He opined, that "current medical literature lacks sufficient molecular biologic bench research and/or objective medically-based, clinical evidence to support and/or suggest that a nexus and/or related of the pathology (study of disease), novel molecules and "downstream" changes in the biomolecular pathway of Diabetes Mellitus, Type II relates to and/or causes colorectal cancers". Additionally, the examiner determined that, it is less likely than not that the Veteran's colorectal cancer was aggravated by the Veteran's service-connected diabetes mellitus because the Veteran's use of Metformin assists in controlling his endocrine dysfunction by stabilizing his blood glucose levels, improving insulin function while inhibiting the "downstream" metabolic pathways of colon cancer that promotes significantly better prognosis, survivability, while lowering recurrence and metastasis. It should be noted that the Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). However, the Board is required to assess the credibility and weight to be given to evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board has considered the Veteran's lay statements. Laypersons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, the issue of whether the Veteran's malignant neoplasm of the rectum was caused by active service, secondary to service-connected diabetes mellitus, type 2, or is otherwise related to service or a service-connected disability, falls outside the realm of common knowledge of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Whether the Veteran's malignant neoplasm of the rectum is related directly or secondarily to his active duty service cannot be determined by mere observation alone. The Board finds that determining whether the Veteran's malignant neoplasm of the rectum is related to his active duty service is not within the realm of knowledge of a non-expert given the above facts. As the evidence does not show that the Veteran has expertise in medical matters, the Board concludes that the Veteran's statements and contentions in this regard are not probative of whether the Veteran's malignant neoplasm of the rectum is related to his active duty service either directly or secondarily. Thus, the Veteran's statements are afforded less probative value with respect to the medical question of whether the Veteran's malignant neoplasm of the rectum is related to his active duty service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this instance, the Board finds that the medical evidence is more probative than the Veteran's lay statements with regard to the issue of entitlement to service connection for malignant neoplasm of the rectum requiring colostomy as secondary to service-connected disability of diabetes mellitus, type 2. Because the preponderance of the evidence is against the claim, the claim must be denied. See 38 U.S.C.A. § 5107 (b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). No causal connection between the Veteran's service and malignant neoplasm of the rectum is demonstrated by the evidence of record. Although the Board is sympathetic to the Veteran's claim and appreciative of the Veteran's honorable service to our country, the Board is bound by law, and its decision is dictated by the relevant statutes and regulations. Moreover, the Board is without authority to grant benefits simply because it might perceive such a grant to be equitable. See 38 U.S.C.A. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). "[N]o equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). The claim of service connection for malignant neoplasm of the rectum requiring colostomy as secondary to service-connected diabetes mellitus is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). ORDER Service connection for malignant neoplasm of the rectum requiring colostomy as secondary to service-connected diabetes mellitus is denied. ____________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs