Citation Nr: 20034435 Decision Date: 05/18/20 Archive Date: 05/18/20 DOCKET NO. 12-24 039A DATE: May 18, 2020 ORDER Entitlement to service connection for residuals carcinoma of rectosigmoid, with colostomy, to include as due to exposure to herbicide agents, is denied. Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents, is denied. FINDINGS OF FACT 1. The preponderance of the probative evidence of record is against a finding that a nexus exists between the Veteran’s rectal cancer and his military service, including his conceded exposure to Agent Orange and other herbicide agents. 2. The preponderance of the probative evidence of record is against a finding that the Veteran’s preexisting hypertension condition increased in severity during his active service, to include during any such exposure to Agent Orange in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for residuals carcinoma of rectosigmoid, with colostomy, to include as due to exposure to herbicide agents, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 2. The criteria for service connection for hypertension, to include as due to exposure to herbicide agents, are not met. 38 U.S.C. §§ 1110, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from October 1971 to October 1973. This appeal comes before the Board of Veterans’ Appeals (Board) from a December 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In March 2017, at a Board travel hearing at the Waco RO, the Veteran presented testimony before a Veterans Law Judge (VLJ) who is no longer employed by the Board. A transcript of the hearing is available in the record. As the VLJ retired, an April 2018 letter was sent requesting clarification whether the Veteran wanted another hearing. In May 2018, the Veteran responded and declined a new hearing. These matters have previously come before the Board. Most recently in August 2017, the Board reopened the claims for entitlement to service connection for residuals carcinoma of rectosigmoid, with colostomy, and for hypertension, and remanded the issues for thorough medical examinations to be conducted by VA. In November 2017, the Veteran was afforded new VA examinations for both conditions. Thus, the Board finds that its remand instructions were substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection 1. Entitlement to service connection for residuals carcinoma of rectosigmoid, with colostomy, to include as due to exposure to herbicide agents, is denied. The Veteran has argued entitlement to service connection for residuals of carcinoma of rectosigmoid, with colostomy, under two theories. The first theory is for direct service connection, arguing that the Veteran’s condition was incurred in or is otherwise related to his active service, including due to his exposure to Agent Orange or other herbicide agents. The second is for presumptive service connection due to exposure to Agent Orange or other herbicide agents. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The evidence of record shows that the Veteran was diagnosed in July 1977 with rectal carcinoma. Specifically, a pathologic examination of ano-rectal tissue yielded a diagnosis of peri-anal condylomata acuminata with focal dysplasia external and internal hemorrhoids. See July 1977 records contained within February 1996 Medical Treatment Record – Non-Government Facility. The record shows a history of treatment for residuals of the Veteran’s rectal carcinoma since that time. Therefore, the Board finds the first Hickson element has been satisfied, as the Veteran has a presently diagnosed disabling condition. Turning to the second Hickson element for direct service connection, the evidence does not support a finding that the Veteran had a rectal carcinoma condition during military service, as the Veteran’s service treatment records do not reflect diagnosis or treatment for such a condition while he was on active duty. However, the Veteran has argued that exposure to Agent Orange or other herbicide agents during his active service may have caused his rectal carcinoma after service. In its decision in August 2017, the Board conceded that the evidence was at least in equipoise that the Veteran was exposed to Agent Orange or other herbicide agents as defined in 38 C.F.R. § 3.307 (a)(6). See August 2017 BVA Decision. Therefore, the Board finds that the second element of service connection is met. Turning to the third element of service connection, a nexus between the Veteran’s disability and service, the Board notes that if a Veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval or air service and manifests certain medical conditions to a degree of 10 percent or more disabling at any time after service, the Veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C. § 1137; 38 C.F.R. § 3.307, 3.309 (e). However, rectal carcinoma and residuals of rectal carcinoma are not among the conditions known by VA to be caused by exposure to Agent Orange and other herbicide agents. See 38 C.F.R. § 3.309 (e). Thus, a grant of presumptive service connection due to herbicide exposure is not appropriate for the Veteran’s condition. This does not, however, preclude the Veteran from establishing service connection for the claimed disorders on a direct basis, to include as due to exposure to herbicides. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In support of the third Hickson element, the Veteran has provided several written statements arguing that Agent Orange or other herbicide agents caused his rectal carcinoma, as well as his own sworn testimony at a Board hearing. The Veteran is competent to report the occurrence of lay-observable events such as symptoms or certain readily-observable disabilities. 38 U.S.C. § 1153 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, a lay person is not competent to answer more complex medical questions regarding diagnosis or etiology of medical conditions, i.e., those which are not capable of lay observation. See Jandreau, 492 F.3d at 1377, n.4 (‘sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer’); 38 C.F.R. § 3.159 (a)(2). While the Veteran is sincere in his belief that his rectal carcinoma was caused by exposure to herbicide agents including Agent Orange during military service, the Board finds the Veteran is not competent to render such a complex medical opinion. The Veteran has not been shown to possess the training, credentials, or other expertise to render an opinion that is of comparable probative value to that of a medical professional. See Jandreau, 492 F.3d at 1377, n.4. Therefore, as to whether a nexus exists between the Veteran’s condition and his conceded exposure to herbicide agents, the Veteran’s lay opinions are not probative. The Veteran has additionally provided numerous news articles, opinion blogs, and copies of internet discussion forums about Agent Orange, other herbicide agents, and contaminated water, which caused medical problems for other veterans. These include: an opinion blog post entitled, “Camp Lejeune: Marine Corps Base Health Survey Flawed,” and associated comments from online readers; an opinion article entitled, “Unlikely cancers shake faith in Corps,” and associated comments from online readers; an opinion article entitled, “McClellan: Vets’ disability, fairness is a thorny issue;” a news article entitled “Toxic woes fester at Camp Pendleton;” a copy of a discussion forum by users of the website AgentOrangeLegacy.com; a copy of a discussion forum by users of the website Military.com; a posting by a veteran on his high school reunion website; a list of internet links to various webpages; and a copy of the EPA webpage about Camp Pendleton Marine Corps Base, which provides general information on past groundwater and soil contamination at Camp Pendleton. This series of lay statements and articles collectively address the health problems faced by a great number of veterans after their military service, as well as the difficulties they faced in bringing those problems to public attention or recognition by the government. The Board is mindful, however, that none of the articles directly address the Veteran’s personal condition and the question of whether it is related to his conceded exposure to Agent Orange or other herbicide agents during his active service. The Board considers these submissions probative only for the purpose of background information. The medical evidence of record has not established a nexus between the Veteran’s rectal carcinoma and his exposure to Agent Orange or other herbicide agents. As noted previously, a pathological examination of the Veteran’s ano-rectal tissue in 1977 yielded a diagnosis of peri-anal condylomata acuminata with marked focal dysplasia external and internal hemorrhoids. See February 1996 Medical Treatment Record – Non-Government Facility. A condyloma acuminata is a type of papilloma usually found on the mucous membrane or skin of the external genitals or in the perianal region, caused by the human papillomavirus (HPV). It is also referred to as a genital or venereal wart. See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY, 32nd Ed., 2012. After the original rectal wart was discovered to be malignant in 1977, the Veteran underwent three surgical procedures on his rectum and anus, and then underwent radiation therapy treatment. See February 1996 Medical Treatment Record – Non-Government Facility. In June 1994, a VA examiner evaluated the Veteran’s rectal carcinoma residuals for a Compensation and Pension (C&P) examination. The examiner personally examined the Veteran and reviewed his medical history. The examiner’s report summarized that the Veteran’s cancerous venereal warts required three surgical procedures, before eventually requiring installation of a colostomy in 1980. This is consistent with the laboratory diagnosis described above. The examiner did not offer opinions for whether the Veteran’s condition was related to his military service, or whether it was caused by exposure to Agent Orange or other herbicide agents. See document entitled November 2017 VA Examination (containing a full, typed copy of the June 1994 examination report). This examination report is probative, as it is based on thorough in-person examination and analysis. However, the Board is mindful that the report does not provide a conclusive answer to the question of a medical nexus. In September 2017, the Veteran was afforded another C&P examination to address whether the Veteran’s condition was etiologically related to his military service or to his conceded exposure to herbicide agents. The VA examiner personally evaluated the Veteran, reviewed the Veteran’s electronic claims file, and reviewed his medical history. The examiner noted the Veteran’s early history of a rectal wart in 1975, removal in 1977 with a diagnosis of cancer, and bowel incontinence in the 1980s. The examiner offered an opinion that it was less likely than not that the Veteran’s rectal cancer was incurred in or caused by his military service, including his in-service exposure to herbicides. The examiner reasoned that the Veteran’s condition was diagnosed years after his separation from the military and noted that no records showed any similar condition during service. Moreover, the examiner noted that rectal cancer is not a presumptive condition for such exposure under VA guidelines, and stated that even when considering medical data from the American Cancer Society, such data has failed to identify a link between herbicide or Agent Orange exposure and the development of rectal cancer. See September 2017 C&P Examination. This opinion is probative as it is based on thorough consideration of the Veteran’s condition and his complete medical history, and is supported by medical data and knowledge. Weighing the probative evidence of record, the Board finds the evidence does not support a finding that a nexus exists between the Veteran’s rectal cancer and his military service, including his conceded exposure to Agent Orange and other herbicide agents during military service. As the preponderance of the evidence goes against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. The third Hickson element is not satisfied. As a result, the claim must be denied. 2. Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents, is denied. The Veteran has argued entitlement to service connection for hypertension. Veterans are presumed to have been in sound condition upon entry into service, except as to conditions noted on their entrance examinations. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304. If a preexisting disability increases in severity during service, it is considered to have been aggravated by service, absent a specific finding that the increase was due to the natural progress of the disability. See 38 U.S.C. § 1153. Aggravation of a preexisting disability may not be conceded where disability did not increase in severity during service. See 38 C.F.R. § 3.306 (b). The first question before the Board, then, is whether the Veteran’s hypertension is shown to have increased in severity during his active service. At the time of his enlistment physical in June 1971, a military physician noted the Veteran’s pre-service history of hypertension. The Veteran’s service treatment record (STR) shows two blood pressure measurements of 160/88 and 150/78 from that examination. The physician made specific note that the Veteran had a preexisting hypertension condition. See June 1971 STR – Medical. At his separation examination, the Veteran’s blood pressure was recorded at 134/80. No hypertension condition was documented by the physician. The Veteran signed a statement indicating he had informed the medical officer of all defects, illnesses and injuries. See October 1973 STR – Medical. The Veteran’s STRs do not show any evidence of further treatment for hypertension after the notations at his entry examination in 1971. However, the Veteran has provided lay testimony that he began a regimen of blood pressure medication sometime between 1972 and 1973. See March 2017 Hearing Transcript. See March 2017 Hearing Transcript. While the medical record does not show any indication of such a prescription, the Veteran’s testimony is competent and credible as to his continued treatment for his hypertension throughout his period of active service. However, the Veteran did not testify, and the record does not show, that his hypertension worsened during active duty. Id. Notes from a VA examination in June 1994 indicate that the Veteran was treated for hypertension between the years of 1971 and 1984, around which time the Veteran was diagnosed with an irregular heartbeat. However, that examiner did not offer an opinion as to whether the Veteran’s hypertension had worsened during his military service. See June 1994 VA Examination. In September 2017, the Veteran underwent a C&P examination to evaluate his hypertension condition. The examiner reported the Veteran’s assertion of maintaining his hypertension with antihypertensive medication since around 1971 and also noted that the Veteran was without medication due the lack of insurance from around 1985-1995. The examiner noted indication of preexisting condition at the Veteran’s entrance to service in 1971 and observed that his blood pressure readings were within normal limits at separation in 1973. The examiner further observed the first indication of hypertension in the Veteran’s record after 1971 was in 1975—two years after the Veteran’s discharge. Given the evidence of record, the examiner stated that there was no evidence to support that the Veteran’s pre-existent elevated blood pressure or hypertension condition progressed or worsened during his period of active duty, to include as a result of any exposure to Agent Orange in service. See September 2017 C&P Examination. The Board finds that the preponderance of the evidence is against a finding that the Veteran’s hypertension worsened during his active military service. The Veteran received continued treatment for his hypertension during his military service. However, the evidence does not show that the Veteran’s hypertension ever worsened until after he was discharged from active duty. Aggravation of a preexisting disability may not be conceded where disability did not increase in severity during service. See 38 C.F.R. § 3.306 (b). Therefore, the claim cannot be granted. The Board has also considered the Veteran’s assertion that his hypertension condition may have been aggravated due to his conceded exposure to herbicide agents including Agent Orange in service. However, as discussed above, the Veteran’s preexisting hypertension noted on his enlistment examination did not undergo an increase in severity during his active duty service, to include at any time during conceded exposure to Agent Orange in service. (Continued on the next page)   As the Board finds the preponderance of the evidence is against a finding that the Veteran’s preexisting hypertension underwent an increase in severity during service, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. The claim must be denied. J. TUNIS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hermsdorfer, 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.