Citation Nr: 1800357 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 13-35 936 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for recurrent skin cancer, to include malignant melanoma, squamous cell carcinoma, and basal cell carcinoma, including as due to herbicide exposure. 2. Entitlement to service connection for colon polyps, including as due to herbicide exposure. 3. Entitlement to service connection for diverticulitis, including as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Choi, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from July 1967 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the RO in Nashville, Tennessee, which in pertinent part denied service connection for skin cancer, colon polyps, and diverticulitis. The Veteran requested a Board hearing in a November 2013 substantive appeal filed via VA Form 9. In a July 2015 correspondence, the Veteran withdrew the request for a Board videoconference hearing. As such, the hearing request is considered withdrawn. 38 C.F.R. § 20.704(e) (2017). In June 2016, the Board remanded the matter to the RO for further development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As discussed below, the Board finds that the June 2016 Board remand directives were complied with, and the matter has been properly returned to the Board for appellate consideration. The Board has reviewed the electronic files on "Virtual VA" and the Veterans Benefits Management System (VBMS) to ensure a complete review of the evidence in this case. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam while on active duty and is presumed to have been exposed to herbicide agents. 2. The Veteran is currently diagnosed with recurrent skin cancer. 3. The currently diagnosed recurrent skin cancer is etiologically related to exposure to herbicide agents. 4. The Veteran does not have a current diagnosis for colon polyps or a current disability manifested by symptoms of colon polyps. 5. The Veteran is currently diagnosed with diverticulitis. 6. The currently diagnosed diverticulitis is not causally or etiologically related to service, including as due to exposure to herbicides. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for recurrent skin cancer have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for colon polyps have not been met. See 38 U.S.C. §§ 1110, 1113, 1116, 5103, 5103A (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 3. Diverticulitis is not etiologically related to service and may not be presumed to have been incurred in service, including as due to exposure to herbicide agents during service. See 38 U.S.C. §§ 1110, 1113, 1116, 5103, 5103A (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b) (2017). Such notice should also address VA's practices in assigning disability ratings and effective dates for those ratings. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the Agency of Original Jurisdiction's initial unfavorable decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). As the Board's instant decision grants service connection for recurrent skin cancer, no discussion of VA's duties to notify and assist is necessary as to this issue. With respect to the issues of service connection for colon polyps and diverticulitis, the RO provided notice to the Veteran in September 2011 and October 2011, prior to the January 2012 rating decision that denied service connection for colon polyps and diverticulitis. The Veteran was notified of the evidence not of record that was necessary to substantiate the claims, VA and the Veteran's respective duties for obtaining evidence, and how disability ratings and effective dates are assigned. VA has also satisfied its duty to assist the Veteran in the development of the claim. First, VA satisfied its duty to seek and assist in the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Specifically, the information and evidence that have been associated with the claims file include service treatment records, service personnel records, VA treatment records, VA examination reports, private treatment records, and lay statements. As discussed above, the Board's June 2016 decision remanded the matter to the RO for further development. The Board's June 2016 remand directives also instructed the RO to request the Veteran to provide the necessary information and authorizations so that VA may obtain updated private treatment records. Pursuant to the Board's remand directives, in August 2016, the RO requested the Veteran identify the names, addresses, and approximate dates of treatment for any treatment received regarding the disabilities on appeal. No response to the August 2016 correspondence has been received by the Veteran. Accordingly, a September 2016 Supplemental Statement of the Case (SSOC) denied service connection for diverticulitis and colon polyps. While VA has a statutory duty to assist in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). VA's duty must be understood as a duty to assist a veteran in developing his or her claim, rather than a duty on the part of VA to develop the entire claim with the veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). As such, the Board finds that VA has made every reasonable effort to obtain all records relevant to the issues on appeal. Second, VA satisfied its duty to obtain a medical opinion when required. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board's June 2016 remand directives instructed the RO to schedule the Veteran for new VA examinations for skin cancer, colon polyps, and diverticulitis, and to obtain corresponding VA medical opinions as to whether the claimed conditions are etiologically related to the Veteran's in-service exposure to herbicides. On remand, the Veteran was provided with new VA examinations in September 2016, the examination reports for which are associated with the record, and the requested VA medical opinions were also obtained at that time. When VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the September 2016 VA examination reports, taken in light of the other lay and medical evidence of record, are thorough and adequate and provides a sound basis upon which to base a decision with regard to the issues on appeal. The VA examiners reviewed the claims file, personally interviewed and examined the Veteran, including eliciting a history, conducted a physical examination, and offered an opinion with supporting rationale. Accordingly, the Board finds that the June 2016 remand directives pertaining to the issues on appeal have been complied with. In light of the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal, and no further development is required to comply with the duty to assist in developing the facts pertinent to the appeal. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of 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). With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). The Veteran is currently diagnosed with recurrent skin cancer (malignant melanoma, basal cell carcinoma, squamous cell carcinoma), which is listed (as a malignant tumor) as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran is also currently diagnosed with diverticulitis, which is not listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) do not apply as to this issue. Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as malignant tumors, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 C.F.R. §§ 3.307, 3.309(a). Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam (Vietnam), including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307, 3.309(e), 3.313 (2017). This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113 (2012); 38 C.F.R. §§ 3.307, 3.309. The following diseases are deemed associated with herbicide exposure under VA law: AL amyloidosis, Chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), Multiple myeloma, Non-Hodgkin's lymphoma, Parkinson's disease, early onset peripheral neuropathy, Porphyria cutanea tarda, Prostate cancer, Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). Accordingly, recurrent skin cancer and diverticulitis, are not diseases for which presumptive service connection based on exposure to herbicides may be granted. Id. Notwithstanding the foregoing presumption provisions for herbicide exposure, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Service Connection for Recurrent Skin Cancer The Veteran generally contends that recurrent skin cancer is the result of exposure to herbicide agents during active service. See March 2011 claim. Initially, the Board finds that the Veteran is currently diagnosed with recurrent skin cancer. A September 2016 VA examination report for skin conditions reflects diagnoses for malignant melanoma in April 2014 and squamous cell carcinoma in December 2003 and August 2006. During the September 2016 VA examination, the Veteran also reported a history of basal cell carcinoma. After a review of all the evidence of record, both lay and medical, the Board finds that the recurrent skin cancer is etiologically related to in-service herbicide exposure. The September 2016 VA examination report contains the VA examiner's opinion that the Veteran's recurrent skin cancer is at least as likely as not the result of military service, including as due to herbicide exposure. The VA examiner based the opinion on review of current peer-reviewed literature and medical studies indicating that there is objective medical evidence that Agent Orange contained arsenic and its use increased the amount of arsenic found in drinking waters in the Republic of Vietnam, Taiwan, and surrounding countries; additionally, based on longstanding evidence-based research, arsenic is recognized as a chemical that significantly increases the risk of skin cancer. In the absence of evidence to the contrary, and resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for recurrent skin cancer have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As service connection has been granted on a direct basis, there is no need to discuss entitlement to service connection on a presumptive or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. §7104 (2012). Service Connection for Colon Polyps The Veteran contends that colon polyps are the result of exposure to herbicides during active service in Vietnam. See March 2011 claim; February 2012 Notice of Disagreement. After a review of all the lay and medical evidence of record, the Board finds that the Veteran does not have, nor has he had at any time proximate to or during the course of this appeal, a diagnosis for colon polyps. A May 2006 private treatment record reflects the Veteran underwent a colonoscopy and a small polyp was found in the descending colon; the colon polyp was removed without difficulty. A June 2009 private treatment record reflects the Veteran underwent another colonoscopy and that no polyps were found; the Veteran was instructed to undergo another colonoscopy in 10 years. In September 2016, the Veteran underwent a VA examination for intestinal conditions. The September 2016 VA examination report reflects a diagnosis for a history benign colon polyp with diagnosis date of May 2006. During the September 2016 VA examination, the Veteran reported most recently having undergone a colonoscopy about four years ago, which as discussed above, revealed no colon polyps. Similarly, the September 2016 VA examination report contains no current findings for colon polyps and the VA examiner indicated a negative finding for any tumors or neoplasms. As discussed above, with any claim for service connection, it is necessary for a current disability to be present. See Moore, 21 Vet. App. at 215; Brammer, 3 Vet. App. at 225; Rabideau, 2 Vet. App. at 143-44; McClain, 21 Vet. App. 319; Romanowsky, 26 Vet. App. 289. As the evidence of record does not show that the Veteran is currently diagnosed with colon polyps or any other disability manifested by findings of colon polyps, the Board finds that the Veteran's claim for service connection for colon polyps must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Service Connection for Diverticulitis The Veteran asserts that diverticulitis is the result of exposure to herbicide agents during active service in Vietnam. See March 2011 claim; February 2012 Notice of Disagreement. At the outset, the Board finds that the Veteran is currently diagnosed with diverticulitis. See August 2016 VA treatment record. After a review of all the evidence, both lay and medical, the Board finds that the weight of the evidence demonstrates that the current diverticulitis did not have its onset during service, and is not otherwise etiologically related to service. Service treatment records do not reflect any complaints, diagnosis, or treatment of any gastrointestinal problems. Further, an August 1969 medical board examination done shortly before service separation shows that the abdomen and viscera were found to be clinically normal. Although the Veteran indicates in the March 2011 claim that he was first diagnosed with diverticulitis in 2008, a May 2006 private treatment record reflects a history of diverticulitis and a diagnosis for diverticulosis. The May 2006 private treatment record also reflects a small polyp was found in the descending colon and removed without difficulty. The September 2016 VA examination report reflects diagnoses for diverticulitis. During the September 2016 VA examination, the Veteran reported a history of diverticulosis and intermittent episodes of diverticulitis, with the diverticulitis becoming more frequent in recent years. After examination of the Veteran, the VA examiner opined that it is less likely than not that diverticulitis and diverticulosis are etiologically related to military service, including as due to exposure to herbicides during service. The VA examiner explained that the Veteran was diagnosed with diverticulitis at or around 60 years of age, and based on review of current peer-reviewed literature along with medical studies, the occurrence of diverticulitis is largely age-dependent. Further, the September 2016 VA examiner stated being unable to find any objective evidence that reports herbicide exposure as causing or increasing the risk for diverticulitis or diverticulosis. The only evidence of record linking the current diverticulitis to exposure to herbicide agents during service are the Veteran's lay assertions that diverticulitis is the result of exposure to Agent Orange; however, the Veteran is a lay person and while he is competent to relate symptoms that may be associated with diverticulitis such as abdominal pain, under the facts of this case that include no symptoms or disease during service and no symptoms for several years after service, he does not have the requisite medical knowledge, training, or experience to be able to diagnose medically complex digestive disorders or to opine on the complex etiological relationship between the current diverticulitis and herbicide exposure. The Veteran has not been shown to have such knowledge, training, or experience; therefore, under the facts of this case, the Board finds that the Veteran is not competent to provide evidence of an etiological relationship between the current diverticulitis and exposure to herbicide agents during military service. For the foregoing reasons, the Board finds that the weight of the evidence demonstrates that diverticulitis was not incurred in service, or otherwise caused by active service, and may not be presumed to have been incurred during active service, to include as due to herbicide exposure during service. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for recurrent skin cancer as due to herbicide exposure is granted. Service connection for colon polyps, including as due to herbicide exposure, is denied. Service connection for diverticulitis, including as due to herbicide exposure, is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs