Citation Nr: 1804671	
Decision Date: 01/24/18    Archive Date: 02/05/18

DOCKET NO.  12-00 837	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUE

Entitlement to service connection for rectal cancer, to include as due to herbicide exposure.


REPRESENTATION

Veteran represented by:	AMVETS


WITNESSES AT HEARING ON APPEAL

The Veteran and his son


ATTORNEY FOR THE BOARD

R. Gandhi, Associate Counsel

INTRODUCTION

The Veteran served on active duty from April 1966 to October 1969, which included service in Vietnam.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. 

In November 2014 the Board denied the claim.  The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court).  In October 2015 the Secretary of VA and the Veteran (the parties) moved the Court to vacate the November 2014 pursuant to a Joint Motion for Remand (JMR), which was granted in an October 2015 Order.

In October 2017, the Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge.  A transcript has been associated with the record.

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).


FINDING OF FACT

The Veteran's rectal cancer is etiologically related to his exposure to herbicides during active service.


CONCLUSION OF LAW

The criteria for service connection for rectal cancer has been met.  38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran asserts entitlement to service connection for rectal cancer due to active service.  Specifically, he asserts that this disability is due his exposure to herbicides while he served in Vietnam.  See October 2017 Hearing Transcript.

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link, or nexus, between the claimed in-service disease or injury and the present disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303 (2017).  

Additionally, a veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent 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).  As the Veteran served in Vietnam during this timeframe, herbicide exposure is presumed.  If a veteran is presumed to have been exposed to an herbicide during such active service, the veteran shall be service connected for the diseases listed under 38 C.F.R. § 3.309(e) if the disability manifested to a degree of 10 percent or more at any time after service.  See 38 C.F.R. § § 3.307 (a)(6)(ii).  Rectal cancer is not one of the diseases listed under 38 C.F.R. § 3.309(e), so the Board will analyze the Veteran's claim on a direct service connection basis.  

With regard to a current disability, the Veteran has a diagnosis of rectal cancer.  See October 2017 Medical Treatment Record.  Thus, the first element of service connection is met.  See Shedden, supra.  

With regard to an in-service injury, the Veteran contends that his rectal cancer is due to his exposure to herbicides while he served in Vietnam.  Indeed, the Veteran's DD-214 confirms that he served in Vietnam during the time period of presumptive exposure to herbicides.  Thus, insofar as the Veteran's claim is based on herbicide exposure, the second element of service connection is met.  See id.

With regard to nexus, the Board finds that probative evidence of records supports a link between the Veteran's current condition and service.

Two private physicians have provided favorable nexus opinions.  First, a November 2015 letter from Dr. A. G. (initials used to protect privacy) noted several studies before concluding that "it is more likely than not that [the Veteran's] rectal cancer was a result of exposure to herbicides."  Then in an October 2017 letter, after identifying several studies on the matter, Dr. J. S. reached the same conclusion.

In contrast, a March 2012 VA examiner provided a negative nexus opinion.  However, in the November 2014 JMR adopted by the Court, the parties deemed inadequate the March 2012 opinion.  As such, the Board assigns no probative value to the findings and conclusions of the March 2012 VA opinion.

In light of the facts noted above and resolving all reasonable doubt in the Veteran's favor, the Board finds that the final element of service connection is met.  Thus, an award of service connection is warranted.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Entitlement to service connection for rectal cancer, to include as due to herbicide exposure is granted.


____________________________________________
A. S. CARACCIOLO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs