Citation Nr: 18144558 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-07 248 DATE: October 24, 2018 ORDER Entitlement to service connection for colon cancer is denied. FINDING OF FACT The Veteran’s adenocarcinoma of the colon is not shown to be etiologically related to his service, to include exposure to contaminated water at Camp Lejeune or to herbicide agents in Guam. CONCLUSION OF LAW The criteria for entitlement to service connection for adenocarcinoma of the colon have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1131, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1973 to April 1976. This matter comes to the Board of Veterans’ Appeals (Board) from a March 2014 rating decision. Service Connection Service connection may be granted for 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). Generally, service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of an injury or disease; and (3) evidence of a nexus between the current disability and the in-service disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 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 a “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 a 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 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. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a). 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. Id. Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to contaminants (defined as the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE or PERC), benzene, and vinyl chloride) in the on-base water supply located at Camp Lejeune, even though there is no record of such disease during service, if they manifest to a compensable degree at any time after service, in a veteran, former reservist, or a member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at the United States Marine Corps Base Camp Lejeune and/or Marine Corps Air Station New River in North Carolina, during the period beginning on August 1, 1953, and ending on December 31, 1987. Diseases Associated with Exposure to Contaminants in the Water Supply at Camp Lejeune, 82 Fed. Reg. 4,173 (Jan. 13, 2017) (to be codified at 38 C.F.R. pt. 3). This presumption may be rebutted by affirmative evidence to the contrary. Id. The following diseases are deemed associated with exposure to contaminated water at Camp Lejeune: kidney cancer, liver cancer, Non-Hodgkin’s lymphoma, adult leukemia, multiple myeloma, Parkinson’s disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer. Id. As such, colon cancer is not a disease for which presumptive service connection based on exposure to contaminated water at Camp Lejeune may be granted. Id. Notwithstanding the foregoing presumption provisions for exposure to contaminated water at Camp Lejeune, a claimant is not precluded from establishing service connection with proof of direct causation. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Those veterans who served in the Republic of Vietnam during the Vietnam Era benefit from presumptive service connection for disorders related to herbicide agent exposure. “Service in the Republic of Vietnam” requires a veteran to have served at some point on the landmass or inland waters (“brown water”) of Vietnam. See Haas v. Peake, 525 F.3d 1168, 1187-1190 (Fed. Cir. 2008); 38 C.F.R. § 3.307(a)(6)(iii). If the veteran did not serve in the Republic of Vietnam during the Vietnam era, such as the case here, actual exposure to herbicide agents must be verified through appropriate service department or other sources in order for the presumption of service connection for herbicide-related diseases under 38 C.F.R. § 3.309(e) to be applicable. Exposure to herbicide agents is not presumed in such instances. However, once exposure to herbicide agents has been established by the evidence of record, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable. 1. Entitlement to service connection for colon cancer The Veteran contends that service connection is warranted for his colon cancer. Specifically, he contends that his colon cancer is due to contaminated water exposure at Camp Lejeune. Alternatively, he contends that his colon cancer is due to herbicide agent exposure in Guam. Exposure to contaminated water at Camp Lejeune Here, the Board finds that the Veteran served at Camp Lejeune from September 14, 1973 to December 11, 1973 and from April 19, 1975 to April 13, 1976, and is presumed to have been exposed to contaminated water during such service. See Diseases Associated with Exposure to Contaminants in the Water Supply at Camp Lejeune, 82 Fed. Reg. 4,173. As stated above, colon cancer is not on the presumptive list of diseases associated with exposure to contaminated water at Camp Lejeune. Therefore, a nexus linking the current prostate cancer and military service cannot be presumed under the law, regardless of the Veteran’s exposure to contaminated water during service. Id. The Board also finds that the weight of the evidence is against a finding that a chronic disease was shown in service. Service treatment records do not reflect any history or treatment for colon cancer symptoms during service. Next, the Board finds that the weight of the evidence demonstrates that symptoms of colon cancer have not been continuous since service separation. The Veteran was diagnosed with colon cancer in April 2013. The earliest indication of colon cancer in post-service medical records appears in an April 2013 treatment record in which the Veteran reported blood in his stool. The Veteran also has not asserted that symptoms of colon cancer manifested soon after service separation in April 1976. For these reasons, the Board finds that symptoms of colon cancer were not continuous after service separation. This same evidence also shows that colon cancer did not manifest to a compensable degree within one year of service separation. Specifically, the evidence suggests that the earliest the Veteran was first diagnosed with colon cancer was in April 2013, nearly 40 years after service, and other histories presented during treatment do not include a history of symptoms since service. As colon cancer did not manifest within one year of service separation, the criteria for manifestation of colon cancer in the form of malignant tumors to a compensable degree within one year of service separation are not met. See 38 C.F.R. § 3.303, 4.114, Diagnostic Code 7343 (2017). On the question of a nexus between the current colon cancer and active service, the Board finds that the preponderance of the lay and medical evidence is against finding that the currently diagnosed colon cancer is causally related to service. As discussed above, service treatment records do not reflect any complaints or treatment for symptoms of colon cancer during service. A December 2015 VA examination opinion reflects that the examiner noted the Veteran stationed at Camp Lejeune for approximately 450 days in the 1970s and was diagnosed with colon adenocarcinoma in April 2013. However, medical literature showed that established risk factors for colon cancer, such as age greater than 50 and history of colon polyps, outweighed the limited/suggested evidence of association with exposure to contaminated water at Camp Lejeune. The examiner explained that while several studies showed increased odds ratios for people exposed to PCE and the risk of colorectal cancer, these studies had a confidence interval of “1,” meaning that association could not be attributed beyond random chance. The examiner further explained that the majority of studies did not show a statistically significant association between exposure to contaminated water at Camp Lejeune and the development of rectal cancer. Thus, the examiner opined that the Veteran’s colon cancer was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In June 2016, a VA addendum opinion was provided by a physician who was a member of the Subject Matter Expert Panel Camp Lejeune Contaminated Water (CLCW) Project. After reviewing the available records, the examiner noted that at age 60, the Veteran was found to have polyps during an April 2013 colonoscopy, the largest of which was found to be adenocarcinoma. The examiner noted that the Veteran’s post-service occupation was not cited, but that the Veteran was a lifelong non-smoker and non-alcohol user. The examiner determined that the Veteran was stationed at Camp Lejeune from September 14, 1973 to December 11, 1973 and from April 19, 1975 to April 13, 1976, for 441 total days. The examiner found that the Veteran’s calculated NOAEL and LOAEL values were lower than the RFD, or below the level on daily exposed-average-lifetime, for the four CLCW contaminants where it is conjectured that actual neoplastic activity is initiated. As to community cancer assessments in response to long-time exposure to perchlorate and TCE in drinking water, significantly fewer cases were observed than expected for cancer of the colon and rectum. Additionally, the Veteran’s calculated benzene exposure was below the RFD for this substance. Among other cited neoplasms, those of the digestive system were reported to show an increased incidence in one or more studies, but showed no increase, or in some cases a decrease, in other studies. The examiner noted that age and male gender were risk factors for developing colorectal cancer and that the Veteran was 60 years of age at the time of his diagnosis. Thus, the June 2016 examiner concluded that age, gender, and personal history of lower colonic polyposis were more likely the etiology of his malignant polyp, rather than exposure to CLCW contaminants and opined that it was less likely as not that the Veteran’s colon cancer was caused by or the result of exposure to CLCW. The Board finds the December 2015 and June 2016 VA examiners’ opinions highly probative in this case, as the opinions were based on a review of the Veteran’s medical history, the medical literature, and the examiners’ medical expertise. The Board has considered the Veteran’s statements concerning the etiology of his adenocarcinoma of the colon. While the Veteran is competent to report his cancer symptoms, the question of whether adenocarcinoma of the colon was a result of or aggravated by a disease or injury that is due to service, to include contaminated water at Camp Lejeune, relates to an internal medical process that extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau, 492 F.3d at 1377, n. 4 (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). Thus, the Veteran’s own assertions as to the etiology of adenocarcinoma of the colon are not competent. Based on the evidence of record, the weight of the competent and credible evidence demonstrates no relationship between the Veteran’s current adenocarcinoma of the colon and active duty service. For these reasons, the Board finds that the preponderance of the lay and medical evidence of record is against the Veteran’s claim of service connection for adenocarcinoma of the colon, to include as due to exposure to contaminated water at Camp Lejeune, on a direct, presumptive, or any other basis, and the claim must be denied. 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).   Herbicide agent exposure on Guam Here, the Board finds that the Veteran served in Guam in January 1974 and from July 1974 to December 1974. VA’s Adjudication Procedural Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H.7.a directs that potential herbicide exposure should be verified on a factual basis for areas outside of Vietnam, the Korean DMZ, and Thailand by contacting Compensation Service and/or JSRRC. The record does not reflect that the AOJ made this request to verify the Veteran’s allegation of herbicide agent exposure in Guam. However, there is no official service department record or other credible evidence of record that the Veteran was exposed to herbicide agents in Guam. Furthermore, the list of herbicide agent use and test sites outside of Vietnam provided by the Department of Defense does not include Guam. Other than a broad allegation of exposure to herbicide agents in Guam, the Veteran has not provided any specific details of his alleged herbicide agent exposure. The Board notes that the Veteran submitted a copy of prior October 2005 Board decision that awarded service connection for diabetes mellitus based upon herbicide exposure in Guam. This prior Board decision does not provide persuasive support for the Veteran’s appeal. Pursuant to 38 C.F.R. § 20.1303, decisions of the Board are considered nonprecedential in nature. Each case is decided on the basis of the individual facts in light of the applicable law and regulations. Apart from the lack of precedential value, as different evidence in the case of another veteran may have resulted in the grant of service connection, the prior Board decision does not compel the conclusion that the facts in this case warrant an award of service connection. In this regard, the Board notes that the October 2005 Board decision awarding service connection for diabetes mellitus based upon herbicide exposure in Guam pre-dates the DoD’s official report from December 2006 indicating that there was no Agent Orange spraying, testing, storage, or usage in Guam. As the DoD has not established that Agent Orange was used in Guam during the period of the Veteran’s service, the Board cannot concede herbicide exposure based on any service in Guam. In summary, the competent and credible evidence does not show that the Veteran was exposed to herbicide agents and is therefore not entitled to service connection on a direct or presumptive basis due to exposure to herbicides. Accordingly, the Board finds that the preponderance of the evidence is against the claim. Thus, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Owen, Associate Counsel