Citation Nr: 1820153 Decision Date: 04/06/18 Archive Date: 04/16/18 DOCKET NO. 14-29 526 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to service connection for colorectal cancer with colostomy, to include as due to exposure to herbicide agents. ATTORNEY FOR THE BOARD K.C. Spragins, Associate Counsel INTRODUCTION The Veteran had active service in the United States Air Force from August 1963 to January 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. The Board notes that the Veteran was previously represented by the Disabled American Veterans. However, he revoked their representation in a May 2015 statement. He has not appointed any other representative since that time. FINDING OF FACT Colorectal cancer with colostomy did not manifest in service or for many years thereafter and is not otherwise related thereto. CONCLUSION OF LAW Colorectal cancer with colostomy was not incurred in active service and may not be presumed to have been incurred in service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The record shows that the Veteran has not been provided with a VA examination or medical opinion in connection with his service connection claim for colorectal cancer with colostomy. However, the Board finds that one is not necessary based on the evidence of record. As set forth in more detail below, the record does not indicate that there may be an association between the Veteran's colorectal cancer and his active service. Under these circumstances, an examination is not necessary with respect to the Veteran's claim of service connection for a colorectal cancer with colostomy. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing the four elements to consider in determining whether a VA medical examination must be provided). In addition, the Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Law and Analysis Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a 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 (nexus) between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 247, 431 (2006). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including malignant tumors, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that such Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii) (2017). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2017). The enumerated diseases which are deemed to be associated with herbicide exposure, however, do not include colorectal cancer. Id. The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined a presumption of service connection is warranted. See Diseases Not Associated with Exposure to Certain Herbicide Agents, 75 Fed. Reg. 81,332 (Dec. 27, 2010); see also Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange, 77 Fed. Reg. 47,924 (Aug. 10, 2012). In addition to the presumptive regulations, a veteran may establish service connection based on exposure to Agent Orange with proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that his colorectal cancer is related to his exposure to herbicide agents during service. See August 2011 VA Form 21-526; August 2013 Notice of Disagreement. The RO has conceded the Veteran's exposure to herbicide agents. See June 2014 Statement of the Case. In this regard, the Veteran's DD 214 noted that his Overseas Duty Selection Date (ODSD) was January 8, 1967 in Vietnam. As this information reflects that the Veteran had active duty service in Vietnam in 1967, his exposure to herbicide agents is presumed. 38 C.F.R. § 3.307(a)(6)(iii). The Veteran's service treatment records are silent for complaints, diagnoses, or treatment related to colorectal cancer. In the Veteran's June 1963 enlistment examination, both the genitourinary and anus and rectum categories of the clinical evaluation were marked as normal. In addition, the Veteran denied having piles or rectal disease; or a tumor, growth, cyst, or cancer in his June 1963 Report of Medical history. These findings and reports were unchanged in the Veteran's October 1966 separation examination and Report of Medical History. The Veteran underwent a general Agent Orange Registry examination at VA in July 2012, and the examining certified nurse practitioner noted that the Veteran's colorectal cancer had been treated with a resection and chemotherapy in 2006; as well as a colostomy. In conjunction with this examination, a July 2012 letter from Dr. W. to the Veteran also stated that the Veteran had a diagnosis of colon cancer, status post colostomy and chemotherapy. The Board notes that colorectal cancer is a cancer that starts in the colon or rectum, and it can also be named colon cancer or rectal cancer depending on where it starts. See About Colorectal Cancer, American Cancer Society, (Mar. 23, 2018), https://www.cancer.org/cancer/colon-rectal-cancer/about/what-is-colorectal-cancer.html. The history from the Agent Orange Registry examination is consistent with the Veteran's private treatment records, which reflect that he was initially diagnosed with colorectal cancer in 2006 shortly after he sought treatment for a 6 to 9 months history of bright red blood per rectum with defecation in June 2006. See June 2006 Dr. M. record; August 2006 Dr. M. record; November 2006 Queen's Medical Center record. The Board notes that presumptive service connection is potentially available for the Veteran's colorectal cancer based on the chronic disease presumption. However, colorectal cancer was not documented during his active service, and there was no in-service manifestation sufficient to identify the disease entity. The pertinent regulations require that manifestations are "noted" in the service records, and that is not the case in this instance. The Veteran has also indicated that he did not have any symptoms of colorectal cancer until several decades after service. See August 2013 Notice of Disagreement. His report is consistent with the information from his private treatment records that colorectal cancer was not diagnosed until 2006. Thus, the Board finds that the Veteran's colorectal cancer did not manifest during active duty service or for many years thereafter. Service connection is therefore not warranted under the chronic disease presumption. In addition to the lack of evidence showing that the Veterans colorectal cancer manifested during active duty service or within close proximity thereto, the evidence of record does not link the colorectal cancer to the Veteran's military service. As noted above, the record shows that there were no complaints, treatment, or diagnosis of the claimed disorder in service. In addition, the Veteran has not identified any in-service events, injuries, or diseases that are relevant to his claim apart from his exposure to herbicide agents. Although the Veteran is presumed to have been exposed to herbicide agents, including Agent Orange, as a result of his service in the Republic of Vietnam during the Vietnam era, the evidence does not establish a nexus between his colorectal cancer and his exposure to herbicide agents. The Veteran's treatment records do not contain any indication that the Veteran's colorectal cancer is causally related to service or any incident therein, to include his exposure to herbicide agents. The Board also notes that the Veteran has not submitted any evidence, such as a medical opinion, medical literature, or description of information he received from a medical provider, to indicate that that his colorectal cancer may be related to herbicide exposure or any other aspect of service. The Board additionally finds that the Veteran's opinion alone is insufficient to indicate that there may be an association between his colorectal cancer and service as the Veteran is not competent to relate his colorectal cancer to exposure to herbicide agents during service. As noted above, neither the Veteran nor the record has suggested any other possible association between his colorectal cancer and service. Although it is error to categorically reject a lay person as competent to provide a nexus opinion, not all questions of nexus are subject to non-expert opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew from its earlier decision in Jandreau v. Nicholson to explain its holding. Id. In that earlier decision, the Federal Circuit stated as follows: "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Federal Circuit provided an example, stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer. Id. at n.4. Also of note is that the Veterans Court has explained that non-expert witnesses are competent to report that which they have observed with their own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Taking Davidson, Jandreau, and Layno together, leads the Board to the conclusion that the complexity of the question and whether a nexus opinion could be rendered based on personal observation are factors in determining whether a non-expert nexus opinion or diagnosis is competent evidence. While the Veteran is competent to describe his symptoms and in-service events, he is not competent to relate his colorectal cancer to his exposure to herbicide agents therein. This particular inquiry is within the province of trained medical professionals because it involves a complex medical issue and is not capable of lay observation - it is a complex internal process as opposed to an external process or something capable of lay observation, such as ringing in the ears, scars, or varicose veins. As the Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion on this question, the Board finds that the Veteran's statements as to how his colorectal cancer began or was caused are not competent evidence as to a nexus. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012); Kahana v. Shinseki, 24 Vet. App. 428 (2011). Based on the foregoing, the evidence shows that the Veteran's colorectal cancer did not manifest in service or for many years thereafter. The record also does not contain any probative evidence showing that the Veteran's colorectal cancer is causally related to his active service or any incident therein, to include his presumed exposure to herbicide agents. Consequently, the preponderance of the evidence is against the claim of service connection for colorectal cancer with colostomy. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for colorectal cancer with colostomy, to include as due to exposure to herbicide agents, is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs