Citation Nr: 1820486 Decision Date: 04/06/18 Archive Date: 04/16/18 DOCKET NO. 12-02 805 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for colon cancer, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Katrina J. Eagle, Attorney ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to November 1967, including service in the Republic of Vietnam. He was the recipient of The Purple Heart. He died in August 2011 at the age of 66. The appellant filed as a substitute claimant. 38 U.S.C. § 5121A. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. Jurisdiction was transferred to the RO in St. Paul, Minnesota. In August 2016, the appeal was remanded to the RO for further development, which has been accomplished. See Stegall v. West, 11 Vet. App. 268, 271 (1998). It now returns to the Board for appellate review. FINDINGS OF FACT 1. The Veteran was exposed to herbicides coincident with service in the Republic of Vietnam. 2. Colon cancer was a result of the Veteran's herbicide exposure. CONCLUSION OF LAW Colon cancer was incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis: (i) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury is shown at a later date unless clearly attributable to an intercurrent cause under 38 C.F.R. § 3.309(a); or (ii) where a condition is noted in service but is not chronic or where chronicity may be legitimately question and there are continuity of symptomatology but only for specific chronic diseases listed in 38 C.F.R. § 3.309(a); or (iii) with certain chronic diseases listed in 38 C.F.R. §§ 3.307, 3.309(a) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. Service connection may also be warranted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. VA treatment notes reflect that, at the time of his death, the Veteran was being treated for metastatic carcinoid of the colon. Therefore, a current disorder is shown. The appellant contends that the Veteran's colon cancer was due to herbicide exposure. To that end, a veteran, who had active service in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975 will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. VA has determined that a statistically significant association exists between exposure to herbicides and subsequent development of certain disorders; however, carcinoid tumors are not one of the disorders listed as presumptively due to herbicide exposure. Therefore, service connection presumed as due to herbicide exposure is denied. However, the claim must also be reviewed to determine if service connection can be established on a direct basis to herbicides, even if a veteran is found not to be entitled to a regulatory presumption of service connection. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). There are three medical opinions of record with respect to whether the Veteran's cancer was associated with his herbicide exposure. An August 2011 letter from Dr. HLR stated that it was difficult to determine a causal relationship between carcinoid and Agent Orange and that he could not state with certainty either that Agent Orange caused the Veteran's cancer or that it did not. This evidence neither supports nor weighs against the claim. An October 2016 VA examiner opined that the Veteran's metastatic carcinoid was less likely due to in-service exposure to Agent Orange because Agent Orange is not known to cause neural crest carcinomas. No further rationale was provided by either physician. This evidence tends to weigh against the claim. In contrast, in December 2017, the appellant submitted an opinion from Dr. JDB, who found that it was more likely than not that there was a causal relationship between the Veteran's in-service exposure to herbicides and his subsequent development of carcinoid cancer of the colon. In forming this opinion, Dr. JDB reviewed the Veteran's risk factors for colon and gastrointestinal (GI) cancer, including his family history and other medical conditions that were considered risk factors for colon and GI cancer. Dr. JDB also discussed epidemiologic evidence and other scientific evidence pertinent to the issue, and detailed the biochemical role chemicals used in herbicides play in the development of cancer. In conclusion, Dr. JDB summarized how the various factors came together to result in the Veteran's cancer diagnosis. This evidence weighs heavily in favor of the claim. Based on the above, the evidence is at least in equipoise with more weight assigned to the opinion of Dr. JDB because of his thorough review of not only general medical literature relevant to herbicides, but also consideration of factors specific to the Veteran. Therefore, it is at least as likely as not that the Veteran's metastatic carcinoid was a result of exposure to herbicides during Vietnam service. Accordingly, service connection for colon cancer is granted. Finally, the appellant has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Service connection for colon cancer is granted. ______________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs