Citation Nr: 18132467 Decision Date: 09/06/18 Archive Date: 09/06/18 DOCKET NO. 14-24 136 DATE: September 6, 2018 ORDER Service connection for colon cancer is denied.   FINDING OF FACT The Veteran was not exposed to herbicides during service, and his colon cancer was not a result of service. CONCLUSION OF LAW The criteria for service connection for colon cancer are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1962 to June 1966. He died in February 2015, prior to the disposition of the appeal. The appellant is his surviving spouse who was substituted to complete the appeal. The case is on appeal from a December 2012 rating decision. In August 2014, the Veteran requested a Board video hearing for this case. After he passed away, a video hearing was scheduled for the appellant in June 2017. However, she did not appear for the hearing; thus, the hearing request is deemed withdrawn. Entitlement to service connection for colon cancer. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. “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 between the present disability and the disease or injury incurred or aggravated during service”—the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 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 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). A veteran who 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). Colon cancer is not one of the cancers listed as diseases associated with herbicide agent exposure, and thus, presumptive service connection is not warranted. 38 C.F.R. 3.309(e). When a Veteran is found not be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on another basis, including exposure to herbicide agents with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). Analysis The appellant seeks service connection for the Veteran’s colon cancer diagnosed during his lifetime. She asserts that his colon cancer was related to service, to include exposure to jet fuel and herbicides during service. The Veteran submitted medical publications regarding jet fuel exposure and cancer. Initially, the Board notes that a March 2014 Board decision reflects a finding of fact that the Veteran was not exposed to herbicides, such as Agent Orange, during service. The Board’s decision, and finding in that regard, was upheld by the United States Court of Appeals for Veterans Claims (Court) in a February 2016 Memorandum Decision, and no new evidence in that respect has been presented. Thus, after considering the evidence in that regard again, the Board finds no reason to reach a different outcome in the present appeal. Thus, the Board finds that in-service exposure to herbicides, such as Agent Orange, is not shwon. The Veteran’s DD FORM 214 shows that his military occupational specialty (MOS) involved launching and recovering aircraft quickly from ships, and included air craft fueling and fuel systems. As such, exposure to jet fuel was consistent with his MOS. Service treatment records are silent as to any diagnosis or treatment of colon cancer. In a February 2012 letter, a private physician reported that the Veteran was diagnosed and treated for colon cancer in 2008. The Board obtained an expert medical opinion from the Veterans Health Administration (VHA) in May 2018. The opinion was authored by a VA physician in the Division of Hematology/Oncology at a VA Medical Center, who is also the Interim Chief of Hematology and Oncology and an Associate Professor of Clinical Medicine at a medical school; thus, a medical professional with great expertise in this area of medicine. The May 2018 VHA opinion determined that the publications submitted do not support an association between jet fuel exposure and colon cancer. More specifically, the physician states that the Abstract of a September 2000 Toxicology Industrial Health journal article entitled “Jet fuel-induced immunotoxicity” focuses on immune-toxicologic effects from jet fuel exposure and does not assess colon cancer causation, or even more broadly, carcinogenesis. It was noted that although the paper abstract alluded to theoretical considerations of immune function and general cancer development, the issue was not addressed in the actual body of the paper. Further, the May 2018 VHA opinion states that an Abstract of a January 2008 American Journal of Industrial Medicine article entitled “Cancer incidence and mortality in aircraft maintenance workers” suggests that if there was a risk factor, it was not tied to exposure. Moreover, it was noted that the paper did not specifically analyze colon cancer. Additionally, the physician states that a November 2011 Abstract of a 2011 Toxicology Industrial Health journal article entitled “The influence of hydrocarbon composition and exposure conditions on jet fuel-induced immunotoxicity” does not address cancer causation in general or to the colon specifically. It was noted that the role of immune cells in cancer surveillance was not raised. The May 2018 VHA opinion further states that one other potentially relevant epidemiological study involved more than 14,000 civilian workers at Hill Air Force Base in Utah, with 8000 exposed to JP4 aviation fuel. The standardized mortality ratio of colon cancer was reported to be only 87 “(95% Confidence Interval, 64-111),” which was noted to be exactly the amount expected. Thus, the physician concluded that literature does not support an association between jet fuel exposure and colon cancer. Therefore, it was concluded to be less than likely that the Veteran’s colon cancer was the result of jet fuel exposure during service. The Board notes that a determination as to whether the Veteran’s colon cancer was related to service is a complex matter requiring related medical expertise in this specific case. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (holding that a lay person is not considered competent to testify regarding medically complex issues such as cancer). Thus, the appellant’s opinion (and the Veteran’s) as to causation lacks probative value, and an opinion by a qualified medical expert is required to decide the claim. In that regard, the May 2018 opinion provided by the VHA expert constitutes such competent medical evidence. Further, as this opinion is unequivocally stated, consistent with the record, and supported by cited evidence of record, the Board finds that this medical opinion is persuasive and probative evidence against the nexus element of the claim. The physician expressly addressed the submitted medical publications and theory. That is, the expert medical evidence outweighs the appellant’s lay opinion on the matter, even if such a theory is intuitively plausible to a lay person. (Continued on the next page)   As the preponderance of the evidence is against the claim, there is no doubt to be resolved. See 38 U.S.C. § 5107(b); 38 38 C.F.R. § 3.102. Therefore, service connection for colon cancer is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Taylor