Citation Nr: 18160296 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 15-30 163 DATE: December 26, 2018 ORDER Entitlement to service connection for a colon disability with polyps, to include as due to exposure to herbicide agents, is denied. FINDING OF FACT Colon polyps first manifested decades after service, and the preponderance of the evidence is against a finding that they are in any way related to service, to include as due to in-service exposure to herbicide agents. CONCLUSION OF LAW The criteria to establish service connection for a colon disability with polyps, to include as due to exposure to herbicide agents, are not met. 38 U.S.C. §§ 1110, 1131, 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 honorably on active duty with the United States Air Force from June 1964 to June 1985. He had service in the Republic of Vietnam and is a recipient of numerous awards and decorations, including the Air Medal with one Silver and one Bronze Oak Leaf Cluster and the Meritorious Service Medal. This case was previously before the Board in December 2017, at which time it was remanded for further development. The case has since been returned to the Board for appellate adjudication. Entitlement to service connection for a colon disability with polyps, to include as due to exposure to herbicide agents Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Generally, in order to establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Under certain circumstances, a Veteran can establish a claim for a diagnosed disability even when the elements of service connection are not otherwise met. Service connection may be established for certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of the disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (a). While the disease need not be diagnosed within the presumptive 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. 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Additionally, a Veteran who served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975 is presumed to have been exposed during such service to herbicide agents, absent affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a). For the purposes of § 3.307, the term “herbicide agent” means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307 (a)(6)(i). If a Veteran was exposed to an herbicide agent during active service, certain diseases shall be presumed service connected if the requirements of section 3.307 (a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of section 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). The following diseases are entitled to presumptive service connection based on herbicide exposure, pursuant to 38 C.F.R. § 3.309(e): AL amyloidosis; chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin’s disease; ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina); all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin’s lymphoma; Parkinson’s disease; early onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). The Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 67 Fed. Reg. 42600-42608 (2002). Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the Veteran is presumed to have been exposed to herbicides based on service treatment records (STRs) and military personnel records that verify service in the Republic of Vietnam. In his original claim for service connection, the Veteran suggested that his colon condition is secondary to in-service exposure to herbicides, “although I do not really know its manifestation, only that I did not have the condition prior to my active service, therefore; it most likely manifested while I served on active duty.” VA and private medical treatment records show the Veteran has been treated for colon polyps since 2006. Therefore, he meets the first requirement of service connection, as the evidence shows he has a current disability (though because the evidence does not show it manifested within a year of service discharge, service connection as a chronic disease is not warranted). Nevertheless, service connection also requires evidence of an in-service disease or injury and a nexus between the claimed in-service disease or injury and the current disability. As previously discussed, 38 C.F.R. § 3.307 allows for the presumption of service connection for certain diseases associated with exposure to herbicide agents. The Veteran’s STRs do not reference any complaints of or treatment for colon polyps, a colon condition, or symptoms of such. A report of the Veteran’s January 1985 retirement examination is of record and includes a summary of the Veteran’s medical history. The summary is silent for a colon condition or colon symptoms, as is the clinical evaluation portion. The Veteran likewise did not endorse any symptomatology that could be associated with a colon condition. VA treatment records include the results of a March 2001 air contrast examination of the colon, which revealed “a few scattered colonic diverticula” but “[o]therwise no mucosal abnormalities, strictures, or polyps . . . .” In October 2006, the Veteran denied a history of colon cancer or colon polyps. In a May 2007 treatment note, the Veteran reported that a December 2006 colonoscopy revealed three benign polyps. In treatment notes from December 2009 and July 2011, the Veteran reported a history of colonic polyps. In December 2012, the Veteran was afforded a VA examination concerning his colon condition. The examiner diagnosed the Veteran with “benign colon polyps” that were less likely than not related to service because “[t]he conditions in service do not cause colon polyps. He has inherited polyposis.” Private treatment records include reports of colonoscopies performed in December 2006, December 2009, January 2011, and March 2013. The pathology report following the December 2009 colonoscopy noted the presence of “sessile serrated adenomas” which “can progress to dysplasia and, potentially, carcinoma.” The pathology report for the January 2011 colonoscopy noted the presence of benign polyps; “there is no evidence of dysplasia or malignancy.” A surgical report from January 2010 noted the removal of a left colon polypoid mass. Of the mass, the surgeon wrote: “[t]he polyp was too large to remove safely with endoscopy. He underwent a CT scan that showed no evidence of malignancy.” Additional private treatment records show the Veteran underwent a colonoscopy in March 2015, during which a mass in the cecum was discovered. An April 2015 surgical pathology report noted benign polyps and a mass in the cecum that was found to be negative for dysplasia or malignancy. Subsequent private treatment records are likewise silent for symptoms of or treatment for colon cancer. In August 2015 correspondence disputing the conclusion of the December 2012 VA examiner, the Veteran cited to VA material concerning entitlement to service connection for various conditions related to herbicide exposure and suggested that his colon polyps were soft tissue sarcomas entitled to service connection on a presumptive basis. The Veteran noted that in addition to colon polyps, recent colonoscopies also revealed at least two precancerous masses necessitating surgical removal, along with parts of his small intestine. The Veteran concluded that “in the absence of ANY familial association of cancer of any type NOT proximate to Agent Orange exposure, the presence of numerous pre-cancerous polyps and TWO pre-cancerous masses can only be associated with Agent Orange exposure . . . .” and that it would be “unconscionable” to cause him to wait until “full blow colon cancer occurs” before recognizing his condition as a service-connected disability. The Veteran was afforded another VA examination in connection with his claim in February 2018. The examiner noted a history of colon polyps dating back to 2006, as well as surgical resections of the colon in 2010 and 2015 for what the Veteran termed “precancerous masses.” The examiner found the Veteran’s STRs to be negative for colon polyps or a chronic colon condition during active service. The examiner noted that the Veteran’s private medical records documented colonoscopic evaluations with multiple colon polyps requiring removal dating back to 2006, and a left colectomy for a large serrated adenoma with multiple smaller hyperplastic polyps. VA records documented a history of right colectomy for a mass/tubular adenoma without diagnosis of colon cancer. Overall, the examiner determined that the Veteran’s STRs did not support service connection for a colon condition on a direct basis because of the lack of evidence of evaluation, diagnosis, or treatment for colon polyps, masses, or chronic conditions during service. With regard to the question of presumptive service connection, the examiner determined that “[c]olon polyps (whether benign, pre-cancerous, or malignant in origin) are not recognized as presumptive conditions of Agent Orange exposure, nor has medical literature to date uncovered a direct causal association between herbicide exposure and the development of colon polyps.” The examiner also explained that the Veteran’s colon polyps were not consistent with soft tissue sarcomas. Overall, the Board finds that the weight of the evidence is against the Veteran’s claim of entitlement to service connection for a colon disability, to include as due to in-service exposure to herbicides. First, the Veteran’s current colon condition is not one for which service connection is warranted on a presumptive basis. There is no indication the Veteran has colon cancer, and even if he did have a diagnosis of colon cancer, colon cancer is not one of the conditions listed in 38 C.F.R. § 3.309 (e). The Board acknowledges the Veteran’s contentions that his colon polyps and masses could be considered soft tissue sarcomas, which are included under 38 C.F.R. § 3.309 (e). However, as previously noted, the February 2018 VA examiner determined that the Veteran’s colon polyps were not consistent with soft tissue sarcomas. VA and private medical treatment records are negative for any diagnoses of soft tissue sarcomas or cancers. While the Veteran is competent to report the circumstances surrounding an injury or disease, as well as symptoms and history of treatment; he is not competent to make medical conclusions, especially as to such complex issues as the etiology of a disability. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Therefore, service connection for the Veteran’s colon disability on the basis of presumed exposure to herbicides is denied. The Board also finds that service connection is not warranted on a direct basis. The Board acknowledges that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and that the absence of evidence in the Veteran’s STRs is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). However, in this case, the preponderance of the evidence weighs against finding an in-service incurrence or a nexus between the Veteran’s current colon disability and his active military service. As the February 2018 VA examiner noted, the Veteran’s STRs are silent for complaints of or treatment for colon polyps, a chronic colon condition, or symptoms of such. Moreover, private and VA medical evidence show the Veteran was not diagnosed with a colon disability until 2006—over two decades after his retirement from active service. Despite ample opportunity to do so, the Veteran has not submitted evidence to show that his colon disability is etiologically related to service on a direct basis. As is true with any piece of evidence, the credibility and weight to be attached to medical opinions and observations are within the province of the Board as adjudicator. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the expert’s knowledge and skill in analyzing the data, and the medical conclusion the expert reaches. In this case, the February 2018 VA examiner’s report was based on an in-person examination of the Veteran, as well as an extensive review of the Veteran’s entire claims file and applicable medical literature concerning the relationship between colon conditions and exposure to herbicides. Therefore, the Board finds the VA examiner’s opinion to be the most probative evidence of record concerning a nexus between the Veteran’s current disability and in-service incurrence. (Continued on the next page)   Because the Board finds that the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt provision does not apply. Accordingly, the Board finds that service connection for a colon disability with polyps, to include as due to exposure to herbicide agents is not warranted. L. CHU Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. T. Raftery, Associate Counsel