Citation Nr: 1800373 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 12-17 247 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for type 2 diabetes mellitus with peripheral neuropathy, due to AO exposure, for accrued benefits purposes. 2. Entitlement to service connection for colon cancer, for accrued benefits purposes. 3. Entitlement to service connection for a stroke, to include as due to herbicide exposure, for accrued benefits purposes. 4. Entitlement to service connection for depression, (also claimed as posttraumatic stress disorder, sleep disorder, and anxiety), for accrued benefits purposes. REPRESENTATION Appellant represented by: Robert W. Legg, Esq. ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1965 to August 1967. The Veteran died in February 2006. The Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 6, 2006 decision by the Department of Veterans Affairs (VA) Regional Office in Portland, Oregon. In a July 2009 statement the Veteran argued that there was clear and unmistakable error (CUE) in the RO's July 06, 2006 decision. In February 2016, the Board determined that the RO's July 06, 2006 decision was not clearly and unmistakably erroneous. The Appellant appealed this decision to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion for Remand (Joint Motion) in October 2016, which indicated that the Board erred by failing to address whether the July 6, 2006 decision was a final decision as to the appellant's claim for accrued benefits. By an Order dated in October 2016, the Court granted the Joint Motion and remanded the matter for readjudication in accordance with its instructions. Previously, in October 2006, the Appellant submitted a statement outlining her disagreement with the RO's July 06, 2006 decision. However, the RO treated this statement as a timely notice of disagreement (NOD) solely for her DIC claim and not as an NOD as to her claim for accrued benefits. As a result, the RO did not issue a statement of the case (SOC) regarding the remaining issues in the July 06, 2006 decision. The Board remanded the claim for an SOC in March 2017. See Manlincon v. West, 12 Vet. App. 238 (1999). The Board finds that the RO substantially complied with the remand instructions. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran's diabetes mellitus is related to herbicide exposure in service. 2. The Veteran's colon cancer was caused or aggravated by his diabetes mellitus. 3. The Veteran's stroke occurred as a result of treatment for his colon cancer. 4. The Veteran's depression is proximately due to his stroke. CONCLUSIONS OF LAW 1. The criteria for service connection for accrued benefits purposes for diabetes mellitus have been met. 38 U.S.C. §§ 1110, 5107, 5121 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 3.1000 (2017). 2. The criteria for service connection for accrued benefits purposes for colon cancer have been met. 38 U.S.C. §§ 1110, 5107, 5121 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 3.1000 (2017). 3. The criteria for service connection for accrued benefits purposes for a stroke have been met. 38 U.S.C. §§ 1110, 5107, 5121 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 3.1000 (2017). 4. The criteria for service connection for accrued benefits purposes for depression have been met. 38 U.S.C. §§ 1110, 5107, 5121 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 3.1000 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Establishing service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2017). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) (2017); Allen v. Brown, 7 Vet. App. 439 (1995). Moreover, pursuant to 38 C.F.R. § 3.309, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and certain chronic diseases, such as diabetes mellitus, become manifest to a degree of 10 percent within one year from the date of termination of 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. This presumption is rebuttable by affirmative evidence to the contrary. When a disease listed at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for specific diseases associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e). If a veteran was exposed to a herbicide agents during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, despite any lack of evidence of such disease during service provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type II diabetes; Hodgkin's disease; ischemic heart disease; all chronic B-cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers; and soft-tissue sarcoma. Coronary artery disease is a type of ischemic heart disease. 38 C.F.R. § 3.309(e). Diabetes Mellitus & Colon Cancer The Appellant asserts that the Veteran's diabetes mellitus and colon cancer are related to herbicide exposure in service. See November 2006 NOD; May 2017 VA Form 9. The record shows that the Veteran served in the inland waterways of Vietnam. As such, herbicide exposure is presumed. Furthermore, the Veteran has a diagnosis of diabetes mellitus. Thus, service connection for diabetes mellitus is presumed and the appeal is granted. 38 C.F.R. §§ 3.307, 3.309. With respect to the Veteran's colon cancer, the Appellant asserts that the Veteran's colon cancer is related to service or secondary to the Veteran's diabetes mellitus. See November 2006 NOD; May 2017 VA Form 9. A February 2011 VA medical opinion addressed the relationship between diabetes mellitus in colon cancer. The examiner stated that the association between diabetes mellitus and colon cancer has been controversial for many years, but several recent studies conclude that diabetes mellitus type II is associated with increased risk for colon cancer. The examiner explained that the proposed mechanism for this association is that the hyper insulinemia of diabetes mellitus promotes proliferation of colon cells and leads to a survival benefit of transformed cells, ultimately resulting in colorectal cancer. The examiner cited to several medical articles in support of this conclusion. The examiner also explained that the Veteran had other risk factors for colorectal cancer including his age and a history of chronic alcoholism. However, it is not possible to specify which of these 3 risk factors was the most important to the development of this Veteran's colon cancer without mere speculation. Thus, resolving reasonable doubt in the Appellant's favor, the Board finds that the Veteran's diabetes mellitus caused or aggravated the Veteran's colon cancer. Thus, service connection for colon cancer is warranted. 38 C.F.R. § 3.310. Stroke The Appellant asserts that the Veteran's stroke is due to herbicide exposure in service or secondary to diabetes mellitus and PTSD. See May 2017 VA Form 9. The evidence shows that the Veteran had a stroke in 2005. Thus the issue that remains disputed is whether the Veteran's stroke was related to service or to a service-connected disability. During a July 2005 VA examination, the examiner reported that the Veteran had left hemiplegia as a complication of stroke related to his cancer treatments. A September 2005 VA treatment note indicates that the Veteran had a colon resection and suffered a stroke while in recovery. In addition, a November 2005 VA treatment note indicates that the Veteran suffered a recent intraoperative stroke during colon resection for colon cancer. As the evidence shows that the Veteran's stroke is related treatments for his colon cancer, which is granted herein, service-connected for colon cancer is granted. Depression The Appellant asserts that the Veteran's depression is related to service or to a service connected disability. The Veteran's medical records show a diagnosis for depression. See VA Treatment Records; Private Treatment Records. Thus, the issue that remains disputed is whether the Veteran's depression is related to service or a service-connected disability. An April 2005 note in the Veteran's private treatment notes indicates that the Veteran did not have anxiety or depression. See Mercy Medical Center Treatment Records. However, a May 2005 note in the Veteran's private treatment notes indicates that the Veteran had been anxious, agitated and depressed with some suicidal thoughts. Id. It was noted that the Veteran had no previous psychiatric history. The medical service provider noted that the Veteran appeared to meet all the diagnostic criteria for depression with some suicidal thought, tearfulness, mood lability, hopelessness, helplessness, and he does not understand why he is in this condition. He had difficulty sleeping and loss of interest in usual activities. He appeared to have nightmares, possible hallucinations and/or flashbacks from his Vietnam experiences according to the Veteran and his family. The medical service provider concluded that the depression was secondary to his right cerebral infarct or stroke. Based on this evidence, the Board finds the evidence is sufficient to show the Veteran's depression was a result of his now service-connected stroke. Thus, service-connection for depression is warranted. ORDER Entitlement to service connection for type 2 diabetes mellitus with peripheral neuropathy, due to AO exposure, for accrued benefits purposes is granted. Entitlement to service connection for colon cancer, for accrued benefits purposes is granted. Entitlement to service connection for a stroke for accrued benefits purposes is granted. Entitlement to service connection for depression for accrued benefits purposes is granted. ____________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs