Citation Nr: 20034422 Decision Date: 05/18/20 Archive Date: 05/18/20 DOCKET NO. 20-14 563 DATE: May 18, 2020 ORDER Entitlement to service connection for colon cancer, status post-surgery with anemia (also claimed as colonic mass and iron deficiency) is denied. REMANDED Entitlement to service connection for left hip avascular necrosis is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s colon cancer began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for the Veteran’s colon cancer are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from December 1988 to December 1992. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 1. Entitlement to service connection for colon cancer, status post-surgery with anemia (also claimed as colonic mass and iron deficiency) is denied. As to the first element of Shedden, for service connection the Veteran must show a current disability. The Veteran has a diagnosis of colon cancer during the pendency of his claim, and therefore the Board finds that the first Shedden element is met. See March 9, 2018 private treatment record (Operative Note). As to the second element of Shedden, for service connection the Veteran must show an in-service incurrence or aggravation of a disease or injury. Here, the Board notes that the Veteran has only ever claimed that his condition is related to service, but does not otherwise indicate on what basis. See February 2020 VA Form 9; March 2018 VA Form 21-526EZ. Additionally, upon review of the Veteran’s Service Treatment Records, the Board does not find that they reflect any complaints or findings for a colon condition. See October 1992 Separation Examination. The Veteran did not report a colon condition at his separation physical, nor does the objective medical evidence of record indicate that his currently diagnosed condition incurred during service. See VA treatment records; private treatment records. Accordingly, the Board does not find that the Veteran’s claim meets the second Shedden element for service connection. Even if the Board were to go on to consider the last element of Shedden, a causal relationship between the current disability and the in-service disease or injury, upon review the Board finds that there are no medical opinions of record that directly link the Veteran’s condition to service. Although service connection may be presumed for malignant tumors (cancer) if the condition manifests to a compensable degree within a certain period after military discharge, service connection on this basis cannot be favorably considered because the evidence of record does not show that the condition developed to a compensable degree within twelve months following military discharge. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a). To point, the objective medical evidence of record demonstrates that the claimed for condition did not manifest until recently (approximately 2018), whereas the Veteran separated from service in 1992. See September 10, 2018 VA treatment record; DD Form 214. While the Veteran has not been afforded a VA examination or medical opinion, the Board does not find that its duty to assist has been triggered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); 38 C.F.R. § 3.159 (c)(4). To point, although McLendon sets a low bar, that bar has not been met as there is no indication of an in-service element or a possible link between the Veteran's currently diagnosed colon condition and his active duty service, other than the Veteran's own broad and conclusory statements. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (holding that conclusory lay assertions of a nexus are insufficient for purposed of ordering a VA medical examination). The Board acknowledges the Veteran’s lay testimony associating his condition with his active duty service, as the issue of a nexus here is medically complex in that it requires medical knowledge and expertise that the Veteran has not been shown to possess, the Board does not find him competent to address the same. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). As the preponderance of the evidence weighs against the claim, there is no doubt to resolve. 38 U.S.C. § 5107 (b). The Veteran’s claim for entitlement to service connection for colon cancer, status post-surgery with anemia (also claimed as colonic mass and iron deficiency), is denied. REASONS FOR REMAND 2. Entitlement to service connection for left hip avascular necrosis is remanded. Upon review of the record, the Board finds that the Veteran has competently and credibly alleged experiencing hip pain since service separation for which he has a current diagnosis of left hip arthralgia. See September 2018 VA treatment record. While it is unclear as to how the Veteran’s current hip pains relate back to service, as his STRs do not reveal complaints or symptoms of the same, the Board finds that its duty to assist has been triggered pursuant to McLendon. To point, symptoms of pain are capable of lay observation, and the Board does not find that the record supports a showing of an incurrent cause for the Veteran’s contemporaneous report of hip pain. Therefore, the Board finds the low bar set in McLendon to be met. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Accordingly, the Veteran should be afforded a VA examination to assess the nature and etiology of his currently diagnosed hip condition. The matters are REMANDED for the following action: 1. Associate with the Veteran’s claims file any outstanding VA treatments records since July 2019. 2. Thereafter, schedule the Veteran for a VA examination (or telehealth interview, a review of the record, or other appropriate substitute for an in-person examination, if deemed sufficient in the event that an in-person examination is not feasible) to assess the nature and etiology of his claimed left hip condition. Upon reviewing the claims file, to include a copy of this remand, opine as to the following: Is it at least as likely as not (50 percent) that the Veteran’s claimed for left hip condition incurred in, or is otherwise related to, service? The VA examiner should elicit a full medical history from the Veteran relative to his currently diagnosed hip condition. The examiner is directed to the September 2018 VA treatment record’s diagnosis of left hip arthralgia. The examiner is also directed to specifically address and consider the Veteran’s report of frequent pain in his left hip since his discharge from service. See September 10, 2018 VA treatment record. J. TUNIS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.R. Fey, 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.