Citation Nr: 21001383 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 17-38 963 DATE: January 7, 2021 ORDER Entitlement to service connection for colon cancer and residuals, status post-laparoscopic hemicolectomy, is denied. FINDING OF FACT There is no competent evidence of record that the Veteran suffered from colon cancer during his active service, or that his current disability is related to his active service or to herbicide agent exposure therein. CONCLUSION OF LAW The criteria for service connection for colon cancer and residuals, status post-laparoscopic hemicolectomy, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309,3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1967 to September 1970, and February 1981 to December 1998, with service in Vietnam. For his meritorious service, the Veteran was awarded (among other decorations) the Bronze Star Medal, the Army Commendation Medal, and the Vietnam Service Medal with three bronze service stars. This matter is before the Board of Veterans’ Appeal (Board) on appeal from an August 2014 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing in November 2018. A transcript of that hearing has been added to the Veteran’s file. The Board previously remanded the appeal in July 2019, and the matter has been returned for appellate consideration. Entitlement to service connection for colon cancer and residuals, status post-laparoscopic hemicolectomy. The Veteran is seeking service connection for colon cancer. the Veteran contends his colon cancer and/or residuals are due to (1) exposure to an herbicide agent, (2) liver flukes, and (3) the in-service removal of colon polyps in 1997. Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) The existence of a current 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 in or aggravated by service. See 38 C.F.R. §§ 3.303 (a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). VA has also established a presumption of service connection for certain diseases found to be associated with exposure to an herbicide agent. See 38 U.S.C. § 1116, 38 C.F.R. § 3.309(e). Absent affirmative evidence to the contrary, such diseases will be service connected even if there is no evidence of the disease during service, provided that herbicide exposure is established. Id.; 38 C.F.R. § 3.307(d). The term “herbicide agent” means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975 (the Vietnam Era). 38 C.F.R. § 3.307(a)(6). A veteran who, during active military service, served in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed to such herbicide agents. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6). As the Veteran did serve in Vietnam during the presumptive period of January 9, 1962 to May 7, 1975, the Veteran is presumed to have been exposed to an herbicide agent during his service. 38 C.F.R. § 3.307. That said, colon cancer is not on the list of diseases enumerated in 38 C.F.R. § 3.309(e) for which presumptive service connection is warranted based on herbicide exposure. This does not, however, preclude a claimant from establishing service connection for the claimed disorders on direct basis, to include as due to exposure to herbicide agents. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The question for the Board is whether the Veteran’s colon cancer is etiologically linked to the Veteran’s active duty service. The Veteran was afforded an August 2014 VA examination to determine to the nature and etiology of his colon cancer. The VA examiner opined that the Veteran’s colon cancer was not related to his active duty service. The VA examiner highlighted that the Veteran’s service treatment records (STRs) were silent for liver flukes and the review of the appropriate medical literature presents to link between liver flukes and colon cancer. The VA examiner also noted that the Veteran had colon polyps removed during his active service, but not near where the Veteran’s adenocarcinoma was detected. The polyps were not considered adenomatous and no polyps were found 2005 to 2013. Moreover, the VA examiner provided that the development of colon polyps are not always accompanied by the development of cancer. The VA examiner stated that development of polyps could be due to age, certain health conditions (inflammatory bowel disease and type II diabetes), obesity, fatty diet, lack of exercise, smoking, and alcohol consumption. In July 2019, the Board remanded the Veteran’s claim for a medical opinion addressing whether the Veteran’s colon cancer was related to the Veteran’s exposure to herbicide agents. To that end, a January 2020 VA medical opinion was obtained. The VA examiner opined that the Veteran’s colon cancer was less likely than not due to the Veteran’s military service, to include herbicide exposure, or had its onset during service. The VA examiner cited medical literature that indicated that age, personal or family history of sporadic CRC, inflammatory bowel disease, and a history of abdominal irradiation as the major risk factors of colon cancer. The medical literature also highlighted clinical environmental and lifestyle factors that have an association with colon cancer, which include obesity, diabetes, tobacco use, excess consumption of alcohol, excessive consumption of processed meat, and the lack of physical activity. The examiner stressed that a causal association between herbicide exposure and the development of colon cancer was not established in the cumulative medical literature to date. The VA examiner acknowledged that Agent Orange exposure has been linked to other forms of cancer but was “found to have inadequate or insufficient evidence to determine whether an association exists in relation to colorectal cancer.” In this case, as to the issue of whether the Veteran’s colon cancer is related to his active duty service to include exposure to Agent Orange, the Board finds that the August 2014 and July 2019 VA examination reports are the most probative evidence of record as it was definitive, based upon a complete review of the Veteran’s entire claims file, in consideration of the Veteran’s reported history, prior physical evaluation of the Veteran, and pursuant to the Board’s remand instructions. Furthermore, the August 2014 and July 2019 VA examiners provided a complete and thorough rationale in support of their opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges the statements provided by the Veteran regarding colon cancer. The Veteran is competent to report the symptoms related to his colon cancer, he is not competent to opine as to whether his colon cancer is related to his active duty service to include (1) exposure to an herbicide agent, (2) liver flukes, and (3) the in-service removal of colon polyps in 1997. As the Veteran’s statements are not competent as to the question of nexus, they are assigned no probative weight. Therefore, the issue of whether the Veteran’s colon cancer is related to his active duty service must be decided based on the competent evidence of record. Although the Veteran has established a current disability and in-service injury, the preponderance of the evidence weighs against finding that the Veteran’s colon cancer is causally related to his service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, service connection for colon cancer and residuals, status post-laparoscopic hemicolectomy, will therefore be denied. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.R. Higgins, 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.