Citation Nr: 18151892 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 12-11 540 DATE: November 20, 2018 ORDER Entitlement to service connection for residuals of mucinous adenocarcinoma (claimed as colon cancer) as due to exposure to Agent Orange during service is denied. FINDING OF FACT The Veteran’s residuals of mucinous adenocarcinoma (claimed as colon cancer) was not incurred in or caused by active service, to include as due to exposure to Agent Orange during service. CONCLUSION OF LAW The criteria for service connection for residuals of mucinous adenocarcinoma (claimed as colon cancer) have not been met. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1968 to March 1970. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded in July 2015 and March 2016, and in May 2018 the Board requested an expert medical opinion from the Veteran’s Health Administration (VHA). The Board finds that the remand directives have been substantially fulfilled and the matter is now appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). In November 2012, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing. A transcript of the hearing has been associated with the claims file. The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to service connection for residuals of mucinous adenocarcinoma (claimed as colon cancer) as due to exposure to Agent Orange during service is denied. In general, service connection may be granted for disability or injury incurred in, or aggravated by, active military service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). In order to establish service connection for a claimed disorder, there must be (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Where a disease is first diagnosed after discharge, service connection will be granted when all of the evidence, including that pertinent to service, establishes that it was incurred in active service. See 38 C.F.R. § 3.303 (d) (2018); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). For certain chronic disorders shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307) so as to permit a finding that the disorder was incurred during service or within the presumptive period, subsequent manifestations of the same chronic disease at a later date, however remote, are service connected. See 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a) (2018). When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is an alternative means of establishing presumed service connection with respect to one of the listed chronic diseases. However, the theory of continuity of symptomatology under 38 C.F.R. § 3.303 (b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d. 1331 (Fed. Cir. 2013). In this case, residuals of mucinous adenocarcinoma (claimed as colon cancer) is not considered a “chronic” disorder under 38 C.F.R. §§ 3.307, 3.309; thus, service connection is not warranted under 38 C.F.R. § 3.303 (b) for a chronic disability. The Veteran asserts that his residuals of mucinous adenocarcinoma (claimed as colon cancer) is the result of his exposure to Agent Orange in service. In this case, the Veteran has current residuals of mucinous adenocarcinoma. See, e.g., August 2010 VA treatment records. Specifically, in August 2009, a computerized axial tomography (CT) of the abdomen and pelvis revealed a fluid-filled tubular mass in the right lower quadrant in the expected location of the appendix. The Veteran underwent an appendectomy, which was performed through a midline incision due to concerns about possible malignancy. The final pathology was suspicious for mucinous adenocarcinoma. Therefore, the Veteran meets the first element of service connection. See Hickson v. West, 12 Vet. App. 247, 253 (1999). With regard to herbicide exposure, VA laws and regulations provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116 (a)(3); 38 C.F.R. § 3.307 (a)(6)(iii). The last date on which such a Veteran shall be presumed to have been exposed to a herbicide agent shall be the last date on which he served in the Republic of Vietnam during the Vietnam war period. 38 C.F.R. § 3.307. For these Vietnam War Veterans, diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. If the Veteran did not serve in the Republic of Vietnam during the Vietnam era or in Korea in or near the DMZ between April 1, 1968, and August 31, 1971, actual exposure to herbicides must be verified through appropriate service department or other sources in order for the presumption of service connection for a herbicide-related diseased under 38 C.F.R. § 3.309 (e) to be applicable. Exposure to herbicides is not presumed in such instances. However, once exposure to herbicides has been shown 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. In the current case, the Veteran asserts service in Vietnam and herbicide exposure. The Veteran’s Form DD-214 confirms service in Vietnam during the Vietnam War era, with service in Vietnam from August 1968 to July 1969. Therefore, the Board presumes Agent Orange exposure. Thus, the second element of service connection, an in-service incurrence or aggravation of a disease or injury is satisfied. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Turning to the third element of service connection, a nexus between the claimed in-service disease or injury and the current disability, the Board notes that the presumption of service connection based on herbicide exposure does not apply to mucinous adenocarcinoma, residuals thereof, or even colon cancer. See 38 C.F.R. § 3.309 (e). However, the availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In September 2009, as a result of the suspicious pathology report, the Veteran underwent a right hemicolectomy. The Veteran contended that his physician informed him that he had a “rare and uncommon” form of cancer. The Veteran asserted that his cancer resulted directly from his herbicide exposure in Vietnam. He cited to research which explained that exposure to certain environmental factors, such as dioxins, can cause cancer. The Veteran was afforded VA examinations in 2015. Examinations in 2015 resulted in diagnoses of postprandial diarrhea and surgical scars. The examiner concluded that mucinous adenocarcinoma was not incurred in or caused by service, reasoning that the malignancy occurred approximately 40 years following discharge, and that the type of malignancy claimed was not recognized by VA as being associated with Agent Orange exposure. This physician indicated a similar opinion in April 2016, and also pointed out that she is a general internal medicine practitioner. She suggested that any additional opinion necessary should be requested from an oncologist. Accordingly, the Board requested a VHA expert medical opinion from an oncologist. In response, a June 2018 VHA expert medical opinion written by an oncologist was received. The VHA expert medical opinion notes the Veteran’s service in Vietnam from August 1968 to July 1969, and concedes exposure to Agent Orange during this service. The medical expert summarized the Veteran’s medical history, noted the Veteran’s pathology of mucinous adenocarcinoma, and acknowledged the Veteran’s assertions of his diagnosis being the result of his herbicide exposure in service. The medical expert explained that adenocarcinomas of the appendix are “rare tumors,” and that little is known about risk factors or etiology. Specifically, the medical expert noted that “mucinous right colon cancers have been associated to a genetic disease, Lynch syndrome, but in a minority of cases.” The medical expert further explained that “[t]hey have been reported more commonly in patients with inflammatory bowel disease and in patients with prior abdominal or pelvic radiotherapy.” However, the VHA medical expert noted that in this case, the Veteran has “no first degree relative with colon cancer or other malignancies, which does not suggest a genetic cancer syndrome.” As for the etiology of the Veteran’s residuals of mucinous adenocarcinoma, the medical expert explained that Agent Orange (dioxin) exposure has been linked with sufficient evidence to certain cancers, but that gastrointestinal cancer has inadequate/insufficient evidence to determine an association. Ultimately, the VHA medical expert concluded that “risk factors and etiologic agents for this rare type of tumor are not well known, but literature research did not reveal any case of this cancer associated to toxic exposures, including herbicides, dioxin and Agent Orange.” Thus, the medical expert opined that the Veteran’s mucinous adenocarcinoma is less likely than not (less than 50 percent probability) related to exposure to Agent Orange in service. In September 2018 the Veteran submitted correspondence, which once again argued that research indicates environmental factors, such as exposure to certain chemicals like dioxin and Agent Orange, cause mucinous adenocarcinoma. While this statement is new, the assertions presented by the Veteran are duplicative of previous statements and arguments, which were previously considered by the VHA medical expert. Having considered the medical opinions of record, along with the Veteran’s assertions, the Board finds that the competent medical evidence is against a finding that the Veteran’s residuals of mucinous adenocarcinoma (claimed as colon cancer) is etiologically related to the Veteran’s herbicide exposure in service. The Board finds that the competent and probative medical evidence of record does not support such contentions. Although the Veteran may feel that his diagnosis is due to his herbicide exposure in service, there is no objective evidence of such nexus. As a lay person, the Veteran does not have the education, training and experience to offer a medical diagnosis or an opinion as to the onset or etiology of his diagnosis. While the Veteran throughout his appeal consistently asserts that research exists in support of his claim, medical experts, to specifically include the VHA oncologist, considered such assertions of research and found otherwise. Therefore, the Board finds that his lay opinion regarding the etiology of his diagnosis is afforded no probative value. See Kahana, 24 Vet. App. at 438. Accordingly, the Veteran’s lay statements in this regard are not competent or probative evidence supporting his claim. See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. Thus, based on the forgoing reasons, the Board finds that a preponderance of the evidence is against the claim of service connection for the Veteran’s residuals of mucinous adenocarcinoma (claimed as colon cancer), and the benefit of the doubt doctrine does not apply. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Tunis, Associate Counsel