Citation Nr: 18159773 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 13-03 771 DATE: December 20, 2018 ORDER Entitlement to service connection for colon cancer, as due to herbicide exposure, is denied. FINDING OF FACT The Veteran’s colon cancer is not shown to be etiologically related to the Veteran’s active service, to include as due to in-service herbicide exposure. CONCLUSION OF LAW The criteria for service connection for colon cancer, as due to herbicide exposure, are not met. 38 U.S.C. §§ 1101, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from September 1969 to July 1977. During his period of service, the Veteran earned the Air Force Good Conduct Medal, Air Force Longevity Service Medal, National Defense Service Medal, Vietnam Service Medal, and Republic of Vietnam Campaign Medal. The Veteran died in September 2013. The Appellant is the Veteran’s surviving spouse. The Appellant asserts that the Veteran is entitled to service connection for colon cancer, as due to in-service herbicide exposure. 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. In order to prevail on a claim of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For purposes of establishing service connection for a disability resulting from exposure to certain herbicide agents, to include 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). Here, the Appellant does not contend that the Veteran served in the Republic of Vietnam, but instead had a period of foreign service in Thailand. As for Agent Orange exposure in Thailand, VA’s Adjudication Procedures Manual (Manual) indicates that special consideration of herbicide exposure on a factual basis should be extended to certain Veterans whose duties placed them on or near the perimeters of Thailand military bases. See VA Adjudication Manual, M21-1MR, part IV, subpart ii, 1.H.5.b. The Manual indicates that herbicide exposure on a factual basis should be conceded for Veterans of either the United States Air Force or the United States Army who served at one of several Royal Thai Air Force Bases, and who served as a security policeman, security patrol dog handler, member of the security police squadron, or were otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. Id. Service connection for certain chronic diseases may be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a) (2017); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also 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) (2017). 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) (2017); 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. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. The Appellant contends that the Veteran was exposed to Agent Orange during service while stationed at the Royal Thai Air Force Base in Nakhon Phanom, Thailand from September 1970 to September 1971. In lay statements associated with the record, the Veteran indicated that he would routinely cross the perimeter of the flight line in the course of his duties as a refueling specialist. The Veteran further indicated that he crossed the perimeter line at least twice a day to access the latrine. Military personnel records confirm that the Veteran was stationed as Nakhon Phanom RTAFB where herbicides were presumptively used along the base perimeter. The Veteran’s DD-214 reflects that the Veteran’s military occupational specialty (MOS) was in-flight refueling operator/technician. In light of credible lay statements that are supported by the Veteran’s MOS, in-service exposure to herbicides is presumed during his service in Thailand. Turning to the evidence of record, the Veteran’s post-service treatment records show a diagnosis of adenocarcinoma of the colon during the pendency of the appeal. However, the Board observes that colon cancer is not listed as a disease warranting presumptive service connection based on in-service herbicide exposure. See 38 C.F.R. § 3.309(e). As such, entitlement to service connection for colon cancer on a presumptive basis, as due to in-service exposure to herbicide agents, is not warranted. Notwithstanding the foregoing presumptive provisions, a Veteran is not precluded from establishing service connection with proof of direct causation. Stefl v. Nicolson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Accordingly, medical evidence must establish a nexus between the Veteran’s colon cancer and the in-service disease or injury. Pursuant to a February 2015 Board remand, a medical opinion was obtained to determine whether the Veteran’s colon cancer was etiologically related to his active service, including his conceded exposure to Agent Orange and other chemicals. A VA physician reviewed the Veteran’s claims file in April 2015 and determined that there was no factual evidence to support that the Veteran’s adenocarcinoma of the colon was specifically caused by service or exposure to herbicides. The examiner explained that there were risk factors that contributed to the onset of colon cancer, as noted from numerous reliable sources; however, a review of those sources did not mention any herbicide exposure being causative. Thus, the examiner indicated that he could find no reasoning that the Veteran’s military service caused or contributed to his colon cancer. The examiner opined that the cause of the Veteran’s colon cancer was likely his “risk factors for developing the same.” The Board requested a Veterans Health Administration (VHA) opinion in September 2017, which was provided in January 2018. The examiner opined that the Veteran’s exposure to Agent Orange during service did not contribute to the development of colon cancer. The examiner stated that a medical literature search failed to identify any linkage between exposure to Agent Orange or herbicide agents and the development of colon cancer, and that the American Cancer Society has determined that there was inadequate/insufficient evidence to determine whether there was an association between Agent Orange exposure and the development of gastrointestinal cancers, including colon cancer. The examiner further explained that colon cancer is the third most commonly diagnosed cancer in ment in the United States, following lung cancer and prostate cancer. Risk factors for the development of colon cancer include increasing age, personal or family history of colon cancer or colon polyps, inflammatory bowel disease such as ulcerative colitis or Crohn’s disease, and hereditary colorectal cancer syndromes such as familial adenomatous polyposis or Lynch syndrome. The examiner noted that there had been a correlation of increased incidence of colon cancer associated with exposure ot abdominal radiation as a child, obesity, diabetes mellitus, red and processed meats, tobacco use, alcohol use, androgen deprivation therapy for prostate cancer, history of cholecystectomy, and presence of coronary heart disease. The examiner further noted that African-Americans have higher rates of colorectal cancer than any other ethnic group, occurring at an earlier age than other ethnic groups. Other groups that have increased frequency of incidence include patients with acromegaly and patients who have undergone a renal transplant. In this particular Veteran, the examiner stated that the risk factors included his age at the time of diagnosis and his family history of colon cancer, as his father had colon cancer. The examiner indicated that development of the Veteran’s colon cancer was multifactorial. As such, she opined that there was not a probability of 50 percent or more that the Veteran’s adenocarcinoma of the colon had its onset during service nor that it was etiologically related to the Veteran’s presumed herbicide exposure while stationed at the Royal Thai Air Force Base in Nakhon Phanom, Thailand from September 1970 to September 1971. In light of the negative nexus opinions and lack of positive opinion to contradict the negative evidence, the Board concludes that the Veteran’s colon cancer is not related to his military service. In reaching this conclusion, the Board finds the January 2018 VHA opinion to have great evidentiary weight, as the opinion reflects a comprehensive and reasoned review of the entire evidentiary record. The VA examiner considered the Veteran’s medical history, cited medical literature, and offered sound medical reasoning in support of its conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consideration has also been given to the Appellant’s contentions that the Veteran’s colon cancer is related to his active service. Although laypersons are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a layperson, as it involves making definitive clinical diagnoses based on knowledge of oncology. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). As such, entitlement to service connection for colon cancer on a direct basis is not warranted. As the Board has found that service connection is not warranted on either direct and presumptive theories of entitlement, the Board will now address whether service connection is warranted on a secondary basis of entitlement. As indicated above, the Veteran’s post-service treatment records show a diagnosis of adenocarcinoma of the colon during the pendency of the appeal. Additionally, the Veteran is service-connected for coronary artery disease, diabetes mellitus type II, tinnitus, and right ear hearing loss. Accordingly, the first and second elements of Wallin have been met. However, as for the third element of entitlement to secondary service connection, a nexus between the service-connected disabilities and the Veteran’s colon cancer, the Board finds that the burden has not been met. In the VHA opinion provided in January 2018, the examiner noted that while there may be an association between colon cancer and coronary artery disease and diabetes mellitus, this did not necessarily translate to causation. The examiner opined that she could not find that there was a probability of 50 percent or more that the Veteran’s service-connected coronary artery disease and diabetes mellitus associated with his presumptive herbicide exposure was a direct or contributory cause of the Veteran’s adenocarcinoma of the colon. In light of the negative nexus opinion and lack of positive opinion to contradict the negative evidence, the Board finds that the weight of the evidence is also against a finding that the Veteran’s colon cancer was caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310. The Board finds that the medical evidence does not contain a nexus opinion by a medical professional relating the Veteran’s colon cancer to his service-connected coronary artery disease, nor his service-connected diabetes mellitus. Therefore, the third element under Wallin for secondary service connection is not met. The Board is grateful for the Veteran’s honorable service, and this decision is not meant to detract from that service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a) (“[A] Veteran has the responsibility to present and support a claim for benefits”); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (recognizing that “[w]hether submitted by the claimant or VA . . . the evidence must rise to the requisite level set forth in section 5107(b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). Unfortunately, the Board concludes that the preponderance of the evidence is against the claim under any theory of entitlement, and the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Appellant’s claim of entitlement to service connection, that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Joseph, Associate Counsel