Citation Nr: 21003509 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 16-30 380 DATE: January 21, 2021 ORDER Entitlement to service connection for ulcerative colitis, to include as due to exposure to Agent Orange, is granted. Entitlement to service connection for kidney cancer, to include as due to exposure to Agent Orange, is granted. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran’s favor, his ulcerative colitis is due to a disease or injury in service, a specific in-service event, injury, or disease to include exposure to Agent Orange. 2. Resolving all reasonable doubt in the Veteran’s favor, his kidney cancer is due to a disease or injury in service, a specific in-service event, injury, or disease to include exposure to Agent Orange. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for ulcerative colitis have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for kidney cancer have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from November 1966 to August 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is included in the claims file. In December 2019, the Board remanded this matter for additional development and consideration. The issues have now been returned to the Board for further appellate consideration. As is further discussed below, the Board finds that there has been substantial compliance with the directives of the prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection The Veteran is seeking entitlement to service connection for ulcerative colitis and kidney cancer that he contends is due to his military service, to include as due to exposure to Agent Orange. Specifically, the Veteran contends that he was stationed in Da Nang at Camp Tien Sha in the Republic of Vietnam and was in close proximity to the barrels of Agent Orange that came through the region. See August 2019 Board Videoconference; June 2016 Disabled American Veterans (DAV) contentions; March 2016 Notice of Disagreement. Applicable Laws and Regulations In general, in order to prevail on the issue of service connection the evidence must show: (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. See Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established for a chronic disease as enumerated for VA compensation purposes, to include hypertension and arthritis, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for an enumerated “chronic disease” listed under 38 C.F.R. § 3.309(a) can also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In addition, the law provides that 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); 38 C.F.R. § 3.307(a)(6). VA has determined that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined a presumption of service connection is warranted. See Diseases Not Associated with Exposure to Certain Herbicide Agents, 75 Fed. Reg. 81,332 (Dec. 27, 2010); see also Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange, 77 Fed. Reg. 47,924 (Aug. 10, 2012). Factual Background The Veteran’s entrance examination noted seasonal hay fever, ingrown toenail, and 20lb recent weight gain, otherwise he was clinically normal. See May 2015 Service treatment records (STR). The Veteran’s separation examination found him to be clinically normal except for a tattoo. See May 2015 STR. The Veteran presented to a VA Intestinal Surgery (Bowel Resection, Colostomy, Ileostomy) Disability Benefits Questionnaire (DBQ) in December 2019, where he was diagnosed with ulcerative colitis, with a date of onset in 1977. See December 2019 Intestinal Surgery (Bowel Resection, Colostomy, Ileostomy) DBQ. In December 2019, the Veteran attended a VA Kidney Conditions (Nephrology) DBQ, where he was diagnosed with neoplasm of the kidney, beginning approximately in 2013. See December 2019 VA Kidney Conditions (Nephrology) DBQ. In the accompanying December 2019 VA medical opinion in response to the Board’s prior remand, the examiner opined it is “at least as likely as not, 50% or greater probability the diagnosis of ulcerative colitis and kidney cancer are related to active service, including the veteran’s conceded herbicide exposure.” See December 2019 Medical Opinion DBQ. Analysis A. Current Disability Turning to the first element of service connection, the Board finds that the Veteran has a current diagnosis of ulcerative colitis and kidney cancer. See December 2019 Intestinal Surgery (Bowel Resection, Colostomy, Ileostomy) DBQ; December 2019 VA Kidney Conditions (Nephrology) DBQ. Thus, the first element of service connection is met. B. In-Service Incurrence With respect to the second element of service connection, an in-service incurrence or aggravation of a disease or injury, the Veteran’s military personnel records report naval support activity in Da Nang Republic of Vietnam from July 1968 to July 1969. See May 2015 Military Personnel Records. As previously stated by the Board in its prior remand dated December 2019, exposure to Agent Orange is conceded. See December 2019 Board Remand. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994) (noting that a veteran may obtain disability compensation based on in-service herbicide exposure by showing “direct actual causation”); Romanowsky v. Shinseki, 26 Vet. App. at 293 (listing in-service incurrence as an element of a direct service-connection claim). Given such, the second element of service connection has been satisfied. C. Nexus The third element of service connection is a causal relationship between the present disability, and the disease or injury incurred or aggravated during service. Turning first to the theory of presumptive service connection, despite the Veteran’s conceded exposure to Agent Orange as a result of his service in the Republic of Vietnam, the Veteran’s diagnosed ulcerative colitis and kidney cancer are not included in the list of diseases associated with presumptive service connection pursuant to 38 C.F.R. § 3.309(e). Thus, the claims may not be established on this basis. Furthermore, ulcerative colitis and kidney cancer are not chronic diseases listed under 38 C.F.R. §§ 3.307, 3.309(a). Thus, they are not entitled to presumptive service connection on this basis. VA must not only determine whether a veteran had a disability recognized by VA as being etiologically related to herbicide exposure but must also determine whether the disability was otherwise the result of active service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As for direct service connection, the Board finds that the December 2019 VA Medical opinion supports a finding of service connection on a direct incurrence basis. See December 2019 Medical Opinion DBQ. Specifically, the December 2019 VA examiner diagnosed the Veteran with ulcerative colitis and kidney cancer, and opined that his current disabilities are “at least as likely as not, 50% or greater probability the diagnosis of ulcerative colitis and kidney cancer are related to active service, including the veteran’s conceded herbicide exposure.” To support this finding, the examiner explained that: After review of all the provided records and documents, it is my opinion that the veteran likely had underlying ulcerative colitis when he entered the service, which then was discovered when it became clinically significant in service. It may or may not have been diagnosed correctly at first presentation as is often the case with ulcerative colitis. It might also have been misdiagnosed as diverticulitis. Nonetheless, his exposure to herbicide agents may have very well indeed caused progression of this disease or worsening. This then resulted in basically a lifetime of medical illness / cascade and treatment related to the treatment of these diseases. See December 2019 Medical Opinion DBQ. The December 2019 VA examiner considered the nature of the Veteran’s ulcerative colitis and kidney cancer, their history, and relevant longitudinal complaints in proffering the opinion. Thus, this opinion is highly probative, as it was based on medical principles, and applied to the facts of the case. See Nieves Rodriquez v. Peake, 22 Vet. App. 295 (2008). There are no conflicting opinions of record. The appeal is granted. (continued on the next page) YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David B. Scheirich, 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.