Citation Nr: 20030178 Decision Date: 04/29/20 Archive Date: 04/29/20 DOCKET NO. 15-35 180 DATE: April 29, 2020 ORDER Entitlement to service connection for colon and/or rectal cancer, to include lymphoma (previously claimed as cancer of the lymph nodes), to include as due to herbicide agent exposure, is denied. FINDINGS OF FACT 1. The Veteran served on the ground in Vietnam and it is presumed that he was exposed to herbicide agents. 2. The Veteran’s currently diagnosed colon cancer was not manifest during service or for many years thereafter, and the competent and credible evidence fails to establish an etiological relationship between this disability and his active service, to include exposure to herbicide agents. CONCLUSION OF LAW Colon cancer was not incurred in or aggravated by service and may not be presumed related to service, to include herbicide agent exposure. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1967 to December 1970. This matter is on appeal from a July 2014 rating decision. In August 2018, this matter was remanded by the Board for further development. It is now ready for adjudication. Based on the diagnosis provided in a August 2019 VA medical opinion, this issue has been recharacterized as stated on the title page. Service Connection Claim Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, certain diseases, such as malignant tumors, are presumed to have been incurred in service if manifested to a compensable degree within one year after service. The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (20198). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116 (a)(1). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307 (a)(6)(ii). However, colon cancer is not presumptively related to herbicide agent exposure under 38 C.F.R. § 3.309 (e) (2018); see Notice, 75 Fed. Reg. 168, 53202-16 (Aug. 31, 2010). The absence of a disease from the presumptive list does not preclude a veteran from otherwise proving that his disability resulted from exposure to Agent Orange or otherwise linking his skin disorder to service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Turning to the merits of the claim, the service treatment records (STRs) are void of findings, complaints, symptoms or any diagnosis of colon and/or rectal cancer or lymphoma. Post-service, private treatment records dated in February 2013 indicate a diagnosis of upper rectal cancer. Pursuant to the Board’s August 2018 Remand, on May 2019 VA hematologic and lymphatic conditions, including leukemia, Disability Benefits Questionnaire examination, the Veteran presented with a history of a tumor on the colon and cancer which spread from the lymph nodes. In February 2013, he underwent surgery and had an infection from a cancer operation. He underwent one session of chemotherapy in 2013 and reported that the waited six months and was informed that there was no need for additional chemotherapy. In August 2019, a second VA examiner opined it is less likely than not that colon cancer is etiologically related to the Veteran’s active service, to include herbicide agent exposure. The rationale was that the medical records indicate a diagnosis of adenocarcinoma of the rectum with lymph node metastasis, but do not indicate a diagnosis of lymphoma. The examiner opined that this type of cancer is not presumptively related to herbicide agents but is a common type of cancer that develops in people more than 50 years old. The Veteran developed this cancer at 68 years of age. On this basis, the examiner further opined that it is unlikely that his neoplasia is related to his herbicide agent exposure. The Board finds that the claim must be denied. In this case, there is no competent medical evidence that supports the conclusion that the Veteran has colon or rectal cancer, to include lymphoma, that was incurred in or aggravated by his service. Moreover, post-service, the record does not reflect or reference any history of colon cancer until decades after discharge from active service. The mere absence of medical records does not contradict a Veteran’s statements about his symptom history. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed disability, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, the earliest post-service medical evidence of the Veteran’s colon cancer was in April 2013 which is over 42 years after service. This long period without problems weighs against the claim. In addition, continuity of symptomatology has also not been established, either through the competent evidence of record or through the Veteran’s statements. Moreover, the Board finds that the Veteran’s statements relating his colon cancer to his service are not credible and are afforded no probative value. His contentions conflict with the absence of treatment evidence for over four decades after service. Finally, there is no competent medical evidence that the Veteran has colon cancer that is related to his service. The Board has taken the contention that the Veteran has colon cancer that was caused by his service seriously (this was the basis of the Board’s remand in order to address this medical question). In this regard, the Board finds that the VA medical examination and opinion concerning the etiology of the Veteran’s colon cancer provides highly probative and overwhelming evidence against this claim. The August 2019 VA examiner considered the Veteran’s documented and reported history and reviewed the May 2019 VA examination report. He opined that the Veteran’s diagnosed colon cancer is not related to his service. Therefore, the May 2019 VA examination and August 2019 medical opinion provides probative evidence against the Veteran’s claim of high probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Although the Veteran might believe that his colon cancer is etiologically related to his service, the Board has closely reviewed the medical and lay evidence in the Veteran’s claims file and finds no evidence that may serve as a medical nexus between the Veteran’s service and his claimed disability. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of colon cancer, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In light of the above, the Board finds that the weight of the probative evidence is against a finding that the Veteran has colon and/or rectal cancer, to include lymphoma, that is related to his service. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Adams, 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.