Citation Nr: 20044571 Decision Date: 07/02/20 Archive Date: 07/02/20 DOCKET NO. 15-39 704 DATE: July 2, 2020 ORDER Entitlement to service connection for colon cancer is denied. Entitlement to a temporary total evaluation (TTE) based on treatment for colon cancer necessitating a period of convalescence is denied. Entitlement to an initial rating higher than 30 percent for service-connected unspecified trauma stressor related disorder is denied. FINDINGS OF FACTS 1. The Veteran’s colon cancer is not etiologically related to his military service. 2. The Veteran does not have service-connected disability that led to treatment necessitating a period of convalescence. 3. The Veteran’s unspecified trauma stressor related disorder produces no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSIONS OF LAW 1. The criteria for service connection for colon cancer have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to a TTE due to treatment for a service-connected or other condition subject to compensation have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.30. 3. The criteria for an initial rating higher than 30 percent for unspecified trauma stressor related disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code (DC) 9410. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to January 1970. He served in the Republic of Vietnam and he received the Combat Infantryman Badge. This appeal comes from a February 2014 rating decision, which denied service connection for colon cancer and entitlement to TTE based on treatment for colon cancer necessitating a period of convalescence. The Veteran filed a Notice of Disagreement (NOD) in February 2014, which resulted in an August 2015 Statement of the Case (SOC). The Veteran subsequently filed a substantive appeal in September 2015. The claims came before the Board of Veterans’ Appeals (Board) in September 2018 and it was remanded to obtain outstanding VA treatment records. The identified VA treatment records are now associated with the claims file and the Board may proceed to adjudicate the claims. As to the claim for increased rating for unspecified trauma stressor related disorder, service connection was granted by way of an August 2015 rating decision that assigned an initial 30 percent rating. The Veteran filed a NOD in September 2015 and SOC was issued in March 2017. The Veteran subsequently filed a substantive appeal in March 2017. This claim was also before the Board in September 2018 and remanded to obtain outstanding VA treatment records. The Board recognizes that in September 2018, in addition to the claims noted above, the claims of service connection for entitlement to service connection for bilateral upper and lower extremity peripheral neuropathy were also remanded. Service connection for these claims was granted by way of an October 2018 rating decision. Although the Regional Office (RO) appears to have recertified these claims back to the Board, they are no longer on appeal as service connection has been granted. 1. Entitlement to service connection for colon cancer is denied. The Veteran contends that service connection for colon cancer is warranted because it is etiologically related to his exposure to Agent Orange in service. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, VA treatment records reflect that the Veteran has colon cancer. See e.g. March 2018 VA Primary Care Note. Therefore, the first element of a service connection claim is satisfied. The Veteran served in the Republic of Vietnam from June 1968 to June 1969, thereby he is presumed to have been exposed to herbicide, Agent Orange. See 38 C.F.R. § 3.307 (a)(6)(iii). Thus, the second element of a service connection claim has been satisfied. However, the record does not have evidence that establishes the nexus element of a service connection claim. The earliest the medical evidence of record reflects diagnosis and treatment for colon cancer is 2013—decades after the Veteran’s separation from the military. Thus, his colon cancer was not diagnosed within a year of his separation from the military. Although the Veteran states that his colon cancer is caused by his exposure to Agent Orange, there is no competent medical opinion of record supporting this assertion. His statement alone, without a competent medical opinion that offers an adequate rationale to support its conclusion, does not establish nexus. The issue of whether his current condition is related to exposure to Agent Orange in service is medically complex and requires specialized medical knowledge or training to ascertain. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran has not been shown to have the specialized training necessary to provide competent nexus opinion. The Board recognizes that VA regulations provide that certain diseases associated with exposure to Agent Orange may be presumed to have been incurred in service. 38 C.F.R. §§ 3.307, 3.309. Colon cancer, however, is not among the list of diseases that are presumed to be due to Agent Orange. Therefore, the nexus element cannot be presumptively established. The Board acknowledges that there is no VA medical opinion of record regarding the Veteran’s colon cancer, and it finds that no VA examination is warranted. VA’s duty to provide examination is not limitless and is only triggered when there is some indication of a link between a veteran’s claimed disability and his/her military service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran’s conclusory generalized lay statement that Agent Orange caused colon cancer is insufficient to require an examination under McLendon. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (rejecting appellant’s argument that his “conclusory generalized statement that his service illness caused his present medical problems was enough to entitle him to a medical examination under the standard of [38 U.S.C. § 5103A(d)(2)(B).]”). After sympathetic review of the record in this case, the Board finds that there is no competent evidence of record that indicates that the Veteran’s colon cancer may be associated with his exposure to Agent Orange. Under such circumstances, the low threshold set forth in McLendon is not satisfied and VA is not required to provide an examination. Id. In the absence of any probative evidence supporting the Veteran’s claim, the benefit-of-the-doubt doctrine is not for application, and the claim for service connection for colon cancer must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. 2. Entitlement to a TTE based on treatment for colon cancer necessitating a period of convalescence is denied. The Veteran maintains that he is entitled to a temporary total disability rating due to a September 2013 surgical procedure for colon cancer that required convalescence. Pursuant to 38 C.F.R. § 4.30, a total disability rating will be granted following hospital discharge when “treatment of a service-connected disability” results in surgery necessitating at least one month of convalescence. Here, as discussed in detail above, the Veteran’s colon cancer is not etiologically related to his military service, and thereby not service-connected. As the Veteran’s colon cancer is not service-connected, a temporary total rating based on convalescence following the September 2013 surgery to treat this condition cannot be granted as the threshold requirement is not met. The Board therefore finds that a temporary total rating for surgery on a service-connected disability necessitating convalescence is not warranted and the claim is denied. 3. Entitlement to an initial rating higher than 30 percent for service-connected unspecified trauma stressor related disorder is denied. The Veteran is seeking an initial higher rating for unspecified trauma stressor related disorder. A 30 percent rating has been in effect for the entire appeal period, beginning September 16, 2013, the date of claim. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate DCs identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In this case the 30 percent rating was assigned pursuant to 38 C.F.R. § 4.130 ’s General Rating Formula for Mental Disorders. Under that formula, a 30 percent rating is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Higher ratings under this DC require more severe symptomatology. A 70 percent disability rating is warranted when the Veteran experiences occupational and social impairment, with deficiencies in most area, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work like setting); inability to establish and maintain effective relationships.  A 100 percent disability rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130.  The “such symptoms as” language means “for example,” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the DC. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. Therefore, VA must consider all symptoms of a veteran’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-5. Id.  Here, after evaluating the evidence of record in light most favorable to the Veteran, the Board concludes that the Veteran is not entitled to an initial rating higher than 30 percent throughout the appeal period. The only evidence provided discussing the Veteran’s psychiatric symptoms during the appeal period is the April 2015 VA examination. The Veteran has not identified any relevant treatment records, VA or private, for this disability. Nor has the Veteran provided any lay testimony regarding his symptoms, outside of the VA examination. To that end, the Veteran’s condition is manifested by impaired sleep, irritability and anxiety. See April 2015 VA examination. While he reported that sleep problems caused his wife to sleep in a separate room, overall the April 2015 examination does not reflect that his condition affects his relationship with his family to the point that has difficulty maintaining those relationships. In fact, during the exam, the Veteran reported that he has been married for forty years with two children, and he described his relationship with his family as being good. He sees and talks to his adult children often. Although he stated that he avoids crowds in general, he attends American Legion meeting and church. Therefore, he has some social life. At the time of the examination, the Veteran was not working (he retired in 2001 when his employed closed), but he described having good relationships with his co-workers when he did work. He stated that had been “written up at various jobs” but did not elaborate. This had happened particularly at the Chicago Transit Authority, but even then he drove a bus for them until 1982 when he and his wife moved to another city. Taken as a whole, the evidence does not show the difficulty in establishing and maintaining effective work and social relationships that is consistent with the social impairment of a 50 percent rating. The examiner found that the Veteran was alert and fully oriented. In addition, the Veteran had normal speech, mildly dysthymic with congruent affect, organized goal directed thought process, as well as intact cognitive functioning and memory. The Veteran did not have suicidal or homicidal ideation. Nor did he have delusions or hallucinations. Thus, the symptoms do not show the severity, frequency, or duration of impairment at the 50 percent level, which would be characterized by circumstantial, circumlocutory, or stereotyped speech; difficulty in understanding complex commands; impairment of short-and long-term memory; impaired judgment; and impaired abstract thinking. The Veteran’s symptoms of anxiety and chronic sleep impairment are fully contemplated by the 30 percent disability rating assigned. His sleep disturbance appears to be in part manifested by anxiety and hypervigilance (looking around the home and outside) and the Veteran self-medicates with alcohol to calm his nerves. The Veteran stated that these symptoms have become more severe since he retired. He also endorsed intrusive thoughts of Vietnam. As to the irritability he reported, it does not appear to rise to the level contemplated by 70 percent rating as he does not describe it leading to violence. Nor does it rise to the level of causing disturbances of motivation and mood as contemplated by a 50 percent rating. His anxiety is not shown to produce panic attacks more than once a week. In general, the medical evidence of record does not reflect a disability picture that reflects occupational and social impairment resulting in reduced reliability and productivity to warrant a 50 percent rating. On the contrary, the April 2015 examiner concluded that the Veteran’s symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. In summary, the symptoms of the Veteran’s unspecified trauma stressor related disorder are consistent with no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Thus, a rating in excess of 30 percent is not warranted. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Solomon 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.