Citation Nr: 1803021 Decision Date: 01/16/18 Archive Date: 01/29/18 DOCKET NO. 11-08 044 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a colon disability, to include colon cancer, claimed as secondary to herbicide exposure. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Kelly A. Gastoukian, Associate Counsel INTRODUCTION The Veteran served on active duty in the Air Force from February 1967 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran requested a Travel Board hearing in his VA Form 9 in March 2011, but later withdrew that request in January 2015. In May 2015, July 2016, and March 2017, the Board remanded the matter for additional evidentiary development. The matter has been returned to the Board. FINDINGS OF FACT 1. The Veteran served in Thailand; exposure to herbicide agents/Agent Orange is not verified and may not be presumed. 2. A colon disability was not shown in service and is not otherwise related to service. CONCLUSION OF LAW A colon disability was not incurred in or aggravated by service, nor may it be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5103, 5103(A) (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Caluza v. Brown, 7 Vet. App. 498 (1995). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, such as Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii) (2017). VA has extended the presumption of exposure to Agent Orange to a Vietnam-era veteran who served in Thailand at certain designated bases, to include Ubon, and whose duties placed him or her on or near the perimeter of the base where Agent Orange was sprayed. VA Adjudication Procedures Manual, M21-1, Part IV, Subpart ii, 1.H.5.b. Service connection based on herbicide exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. 38 U.S.C.A. § 1116 ; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Colon cancer, intestinal polyps, or anorectal villous tumors of the rectum are not associated with herbicide exposure for purposes of the presumption. 38 U.S.C.A. § 1116 (a)(2); 38 C.F.R. § 3.309(e). Notwithstanding the above, a claimant is not precluded from establishing service connection for disability due to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom, Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). The Veteran asserts that he was exposed to herbicides agents/Agent Orange due to his service in Vietnam, and developed colon cancer as a result of such exposure, for which service connection should be granted. Additionally, the Veteran contends he developed colon cancer due to exposure of cleaning solvents used to clean aircraft parts and filters. The Board notes the Veteran was diagnosed with intestinal polyps and an anorectal villous tumor of the rectum in 2009. Accordingly, the first element of service connection is met. The Board wishes to make clear however, that though the Veteran at times identified his current disability as colon cancer, such has not been diagnosed at any time. Indeed, all masses that have been removed have shown to be precancerous or benign. The VA examiner in September 2017 specifically noted the Veteran has had multiple colonoscopies with benign polyps removed; however, all polyps had been non-malignant and there was no documentation of colon cancer. With respect to in-service injury or disease, the Veteran's service treatment records are silent for any issue relating to the gastrointestinal tract, to include any issues with the colon or rectum. The Veteran does not assert that his colon disabilities had their onset during service, or existed continuously since that time. Rather, he asserts his disabilities are related to in-service exposure to herbicide agents in Vietnam, as well as in-service exposure to cleaning solvents. Turning first to cleaning solvents, although the Board in no way doubts that in performance of his duties as an aircraft mechanic he was required to use cleaning solvents on aircraft, he has not submitted any evidence other than his own general assertion of causation, suggesting a link may exist between the development of his colon disabilities and his exposure to solvents during service. He also has not specified what chemicals or solvents he used, nor has he identified evidence suggesting he suffered an injury in service as a result of such exposure. The Board acknowledges that VA has not obtained a medical opinion exploring whether a relationship might exist between the Veteran's colon disabilities and exposure to cleaning solvents; however, the mere conclusory generalized lay statement that service event caused a claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In this connection, neither an in-service injury due to solvent exposure, nor a relationship between any in-service injury and a current colon disability has been shown by the record. Service-connection therefore cannot be awarded on this basis. Turning next to in-service herbicide exposure, although the Veteran claimed on his October 2009 application for benefits that he served in the Republic of Vietnam from June 1, 1968 to June 1, 1969, the Veteran's service treatment records and personnel records do not show that the Veteran was stationed in Vietnam, set foot on land in Vietnam, or served in the inland waterways of Vietnam at any time. Rather, the evidence demonstrates that the Veteran served at the Ubon Royal Thai Air Force Base in Ubon, Thailand for the entirety of that specific time frame, from May 1968 to June 1969. Although the Veteran's awards and decorations included the Vietnam Service Medal and the Vietnam Campaign Medal, those medals are not dispositive of actual service on the landmass of Vietnam or its inland waterways. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). Indeed such medals were awarded for service both inside and outside the geographical limits of the Republic of Vietnam, to include Thailand. Although the Veteran noted he received an Air Force Commendation Medal for repairing an F-4 fighter in the Republic of Vietnam, he has provided no additional information as to the circumstances of this award, how and when he performed this repair. To assist the Veteran, per the Board's prior remand instructions, the Veteran was provided an opportunity to supplement the record with additional information and evidence that could have helped VA establish his whereabouts, and clarify the nature of his duties while stationed overseas during his period of active duty service. Indeed, in March 2017, the AOJ requested additional information and evidence from the Veteran so that VA could verify whether the Veteran was exposed to herbicide agents from February 1967 to February 1971. The Veteran did not respond to this letter. As a result, the AOJ issued a September 2017 formal finding of lack of information required to corroborate the Veteran's allegation of exposure to herbicides from February 1967 to February 1971. The duty to assist the Veteran in the development of evidence pertinent to his claim is not a "one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If an appellant wishes help, he or she cannot passively wait for it in circumstances where he or she may or should have evidence that is essential in obtaining the putative evidence. See id. Therefore, the Board concludes that there has been substantial compliance with the directives contained in the Board's prior remand decision in attempting to verify the Veteran's claimed in-service herbicide exposure, either in Vietnam or Thailand. The Board adds that the Veteran has not asserted he was exposed to herbicides along the Ubon air base perimeter in performance of his duties during his verified service in Thailand, nor has he asserted he worked on planes that carried or distributed herbicide agents to Vietnam. The Board accordingly finds that the evidence is against a finding that the Veteran served in Vietnam, or was otherwise exposed to herbicide agents during his period of active service. As such, service-connection for the Veteran's colon disabilities is not warranted on this theory of entitlement. As noted above, the Veteran has not alleged in-service onset of any colon or rectum problems, and his service treatment records include a "normal" clinical evaluation of his rectum and anus, and genitourinary system upon his examination upon separation in February 1971. The Veteran has not submitted any medical evidence linking his colon disabilities to service, nor has he alleged that he sustained any other in-service injury that led to the development of his current disabilities. The Board adds that a VA examiner in September 2017 opined that the Veteran's intestinal polyps and anorectal villous tumor of the rectum are less likely as not caused by or the result of the Veteran's service. The examiner noted there is no known etiology for colon/rectal polyps, the VA did not concede they were caused by herbicide exposure, and they were not caused by service. The examiner further noted the Veteran was first diagnosed in 2009, almost 40 years after service. Although lay persons are competent to provide opinions on some medical issues, (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), whether or not the Veteran developed a colon disability related to service is a complex medical issue that is beyond a layperson's competence. See Jandreau v. Nicholson, 492 F.3d. 1372 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, the Veteran's statements alone cannot be accepted as competent medical evidence of a nexus. As noted above, there is no competent opinion of record in support of the claim, and the Board does not concede in-service exposure to herbicides. Given the foregoing, the Board finds that the evidence as a whole outweighs the Veteran's contentions and testimony to the effect that a colon disability was caused by service, to include exposure to herbicide agents. The preponderance of the evidence is against a finding that the Veteran incurred a disease or injury in service that is at least as likely as not related to the subsequent development of his colon and rectum disabilities. There is no doubt to be resolved in the Veteran's favor and service connection for a colon disability is denied. See 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49. ORDER Service connection for a colon disability, to include colon cancer, as due to herbicide agent exposure, is denied. ____________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs