Citation Nr: 20005384 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 18-48 566 DATE: January 23, 2020 ORDER Service connection for liver adenocarcinoma with meta static colon adenocarcinoma (colon cancer) due to herbicide agent exposure is granted. FINDING OF FACT 1. The Veteran served in Vietnam and is presumed to have been exposed to herbicide agents. 2. The Veteran’s colon cancer is related to in-service herbicide agent exposure. CONCLUSION OF LAW The criteria for service connection for colon cancer due to herbicide agent exposure have been met. 38 U.S.C. §§ 1110, 1113, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty service from January 1968 to January 1971, including service in Vietnam. The Veteran died in November 2018, and the Appellant, his widow, has been substituted as the claimant with regard to the claim for service connection for colon cancer that was pending at the time of his death. This matter comes before the Board of Veteran Appeals (Board) on appeal from a July 2018 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). Service connection for colon cancer due to herbicide exposure is granted. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disability, there must be (1) competent evidence of a current disability; (2) competent evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). VA regulations provide that a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed to herbicides unless there is affirmative evidence to establish that the veteran was not exposed. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307 (a)(6)(iii). Certain diseases are deemed associated with herbicide exposure under current law. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309 (e). A veteran is entitled to the benefit of the doubt standard of proof for benefit claim decisions. 38 U.S.C. § 5107(b). The benefit of the doubt is applicable when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Appellant contends that the Veteran’s colon cancer was due to Agent Orange exposure in-service. In the June 2018 Statement in Support of Claim, the Veteran stated that in-service he worked as a chemical staff specialist where he handled Agent Orange and other herbicide agents. Also, he stated that spillage and spray-back were common occurrences during deployments. To support his claim, the Veteran provided various medical articles linking colon cancer to Agent Orange exposure in Vietnam. In the September 2018 Statement of the Case, the RO conceded that the Veteran had herbicide exposure based on his verified service in the Republic of Vietnam. A presumption of service connection based on the Veteran’s exposure to herbicide agents cannot be granted because colon cancer is not on the list of diseases associated with herbicide exposure. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.307 (a)(6). However, a Veteran may also establish service connection based on exposure to herbicide agents with proof of actual direct causation. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). In the June 2018 private medical opinion, Dr. B.L. opined that the Veteran’s colon cancer is a result of his direct contact with Agent Orange. Dr. B.L. reasoned that the Veteran was a member of the Army Chemical Corps during Vietnam, and he had extensive exposure to Agent Orange during this time. For example, Dr. B.L. referenced that the Veteran said that there were situations where he was spraying Agent Orange and it would blow back in his face where he could taste it on his lips. Based upon review of the evidence of record, the Board finds the evidence is at least in equipoise as to whether the Veteran’s colon cancer is related to in-service herbicide exposure. Dr. B.L.’s opinion is probative because it is based on his experience in oncology, his treatment of the Veteran, and, reading the opinion as a whole and in the context of the evidence of record, explains the reasons for its conclusions based on an accurate characterization of the evidence of record. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). There is no contrary, probative medical opinion in the evidence of record. Accordingly, and resolving reasonable doubt in the Appellant’s favor, a claim for entitlement to service connection for colon cancer due to herbicide exposure is warranted. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Willoughby, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.