Citation Nr: 18149984 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 15-06 666A DATE: November 14, 2018 ORDER Entitlement to service connection for colon cancer, to include as due to herbicide exposure, is denied. Entitlement to service connection for liver cancer, to include due to herbicide exposure and as secondary to colon cancer, is denied. FINDINGS OF FACT 1. Colon cancer is not shown to be causally or etiologically related to any disease, injury, or incident during service, or due to exposure to herbicide agents. 2. Liver cancer is not shown to be causally or etiologically related to any disease, injury, or incident during service, or due to exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for colon cancer have not been met. 38 U.S.C. 1111, 1131, 5107 (2012); 38 C.F.R. §3.102, 3.303, § 3.309, 3.310 (2017). 2. The criteria for entitlement to service connection for liver cancer have not been met. 38 U.S.C. 1111, 1131, 5107 (2012); 38 C.F.R. §3.102, 3.303, § 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to November 1971, with service in the Republic of Vietnam. The Veteran passed away in May 2014, the appellant is his widow. She was named a substitute in December 2014. In June 2018, the appellant testified at a Board video-hearing before the undersigned. A transcript is of record. Service Connection The appellant asserts that the Veteran’s colon cancer and liver cancer were related to his active service. Specifically, she attributes his lung condition to exposure to herbicides agents, including Agent Orange, during his time in the Republic of Vietnam. See June 2018 Hearing Transcript. Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). To establish service connection on a direct incurrence basis, the Veteran must show: (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). Service connection may be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen v. Brown, 8 Vet. App. 374 (1995). For purposes of establishing service connection for a disability claimed to be a result of exposure to Agent Orange, a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to an herbicide agent, absent affirmative evidence to the contrary demonstrating that the Veteran was not exposed to any such agent during service. 38 U.S.C. § 1116(f) (2012). The applicable criteria also provide that a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e), will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). Notably, however, colon cancer and liver cancer are not conditions presumptively associated with herbicide agents. Here, a review of the record shows that the Veteran had service in the Republic of Vietnam. Because colon cancer and liver cancer, however, are not among the disabilities which have been associated with exposure to herbicides such as Agent Orange, the presumption afforded under 3.309(e) cannot provide the basis for a grant of service connection. 38 C.F.R. §§ 3.307, 3.309. Nevertheless, even if a Veteran is found not to be entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection may be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Colon Cancer and Liver Cancer The Board finds that the evidence does not support a finding of service connection for colon cancer or liver cancer. With regard to a current disability, the Veteran had a diagnosis of both colon cancer and liver cancer during the pendency of the appeal. See February 2014 VA Medical Opinion. Thus, the first element of service connection is met. See Shedden, supra. With regard to an in-service injury, the appellant contends the Veteran’s colon cancer and liver cancer is due to the Veteran’s inservice exposure to herbicide. See June 2018 Hearing Transcript. The Veteran served in the Republic of Vietnam and the RO has already conceded herbicide exposure. See December 2014 Rating Decision. Thus, insofar as the appellant’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 does not support a link between the Veteran’s conditions and service. In October 2013, the Veteran’s VA doctor opined that the cause of the Veteran’s colon cancer was unclear and that Agent Orange exposure was a possible cause. The VA doctor went on to write that he could not say that the Veteran’s colon cancer, now metastatic to his liver, was not caused by Agent Orange. The Board assigns the opinion no probative value as it is speculative, and was not supported by any rationale or a medical explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In contrast, in February 2014 a VA examiner opined that the Veteran’s colon cancer and liver cancer was less likely as not related to or caused by his Agent Orange exposure while in Vietnam. The examiner found that a review of the literature in “Veterans and Agent Orange: Update 2010” (2011) concluded that “on the basis of the evidence reviewed here and in previous VAO reports, the committee concludes that there is inadequate or insufficient evidence to determine whether there is an association between exposure to the chemicals of interest (Agent Orange) and colorectal cancer.” Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran’s claims for service connection for colon cancer and liver cancer. While the evidence of record shows that the Veteran has diagnoses of these conditions during the pendency of the claim, the probative evidence of record demonstrates that they are not related to his service. In this regard, the Board places great probative weight on the VA examiner’s opinion dated in February 2014 as it had clear conclusions and supporting data, as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez, Stefl. The Board notes that the appellant has contended that that the Veteran’s colon cancer and liver cancer is related to his in-service exposure to herbicide agents. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). In some cases, lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In the instant case, however, the Board finds that the question regarding the potential relationship between the Veteran’s colon cancer and liver cancer and any instance of his service, to include exposure to herbicide agents, to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more comp1ex medical questions). Thus, while the appellant is competent to describe the manifestations of the Veteran’s colon cancer and liver cancer, the Board accords statements regarding the etiology of such disorder little probative value as the appellant is not competent to opine on such a complex medical question. In sum, the Board finds that colon cancer and liver cancer is not shown to be causally or etiologically related to any disease, injury, or incident during service to include exposure to herbicide agents. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. The Board notes, however, the preponderance of the evidence is against the appellant claim of entitlement to service connection for colon cancer and liver cancer. As such, that doctrine is not applicable in the instant appeal, and her claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbertv. Derwinski, 1 Vet. App. 49, 53-56 (1990). (Continued on the next page)   Although the Board is appreciative of the Veteran’s faithful and honorable service to our country, given the record before it, this claim must be denied. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Gandhi, Associate Counsel