Citation Nr: 21004083 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 17-29 502 DATE: January 26, 2021 ORDER Entitlement to service connection for tumors, right side of colon is denied. Entitlement to service connection for a lower back condition is denied. REMANDED Entitlement to service connection for arthritis, bilateral feet is remanded. Entitlement to service connection for arthritis, bilateral legs is remanded. Entitlement to service connection for arthritis, bilateral arms is remanded. Entitlement to service connection for arthritis, bilateral hands is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s tumors, right side of colon began during active service or is otherwise related to an in-service injury or disease, to include exposure to herbicide agents. 2. The preponderance of the evidence is against finding that the Veteran’s degenerative back condition began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tumors, right side of colon have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2019). 2. The criteria for entitlement to service connection for a lower back condition have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from October 1958 to October 1962. This matter before the Board of Veterans’ Appeals (Board) is on appeal from a February 2017 rating decision and a March 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico (Agency of Original Jurisdiction (AOJ)). The Veteran testified at a video conference hearing before the undersigned in October 2019. A transcript of the proceeding is of record. This matter was previously before the Board in December 2019. The Board remanded on these issues to seek etiology opinions. A review of the file reflects that new examinations were completed, etiology opinions were rendered, and additional medical records were obtained. The Board thus finds that the AOJ substantially complied with the remand directive in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for a current disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §§ 3.303(d). The requirement that a current disability exist is satisfied if the claimant had a disability at the time the claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay evidence is competent to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature.” Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. §§ 5107(b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. §§ 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). 1. Entitlement to service connection for tumors, right side of colon The Veteran contends that the tumors reportedly present on the right side of his colon are etiologically related to events that occurred during his active duty service. Specifically, he testified during his October 2019 video conference hearing that while he was stationed in Laos, he was injured in his abdomen and what he believes to be the area on the right side of his colon. Though he received treatment and was effectively healed, he reported that there were no x-rays around. Once he returned from service, he began having reflux difficulties and sought medical attention. Years later, he developed a tumor, which he believes to be etiologically related to his in-service injury. The record reflects that he has a current diagnosis for this condition. During his most recent VA examination in February 2020, the examiner recorded that he was diagnosed with intestinal neoplasms (a tumor in his colon) in 2013. Indeed, private treatment records from February 2013 document that he received an extended right hemicolectomy with primary ileocolostomy anastomosis and placement of pain pump due to multiple large polypoid tumors of the right colon and his history of colonic polyposis. The Board therefore accepts this as a current diagnosis related to the Veteran’s colon. As referenced in the previous Board decision, the Veteran’s available service treatment records (STRs) do not include reference to an in-service injury to the Veteran’s colon or abdomen. His STRs include multiple Reports of Medical Examinations and Reports of Medical History throughout his years of active duty service and Reserves service; at no point is an abdominal injury referenced in any of these reports. Nonetheless, the Board has previously determined that there is no evidence of record impeaching the Veteran’s description of this injury. The examiner who performed the February 2020 VA examination, however, opined that it was less likely than not that the Veteran’s tumors, right side of colon were incurred in or caused by his active duty service, to include an abdominal injury. He rationalized that blunt injury to the abdomen does not cause polypoid tumors in colon; additionally, his injury was acute and the condition healed. Additional evidence includes the Veteran’s recollections that his treating physician attributed the etiology of the tumor to a prior trauma. In addition, the Veteran submitted an article suggesting that foreign materials in the body may result in increased risks of cancer later in life. Another article suggests a nexus between colon cancer and exposure to herbicide agents. Overall, the Board finds that the preponderance of the evidence weighs against the claim. In this respect, the VA examiner specifically reviewed the Veteran’s history of trauma in light of the type of colon tumor he manifested and found no medical link between trauma and this type of tumor. This opinion holds significant probative value. On the other hand, the Veteran’s recollections of what his physician hold him holds some probative value, but such value is limited. In this respect, the record does not disclose any rationale supporting this opinion nor the level of certainty for attributing a prior trauma to the tumor development. Similarly, the article suggesting a correlation between foreign materials in the body may result in increased risks of cancer later in life speaks to exposure to uranium from the foreign bodies; moreover, prolonged exposure to foreign materials in the body were found to create this increased risk. There is no evidence to suggest the Veteran’s injury involved either uranium or prolonged exposure to the foreign material in his body. Furthermore, there is also no evidence that the Veteran was exposed to herbicides. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, and has one of the diseases enumerated under 38 C.F.R. § 3.309(e), that disease shall be service-connected (provided the requirements of 38 C.F.R. § 3.307(a)(6) have been met) even though there is no record of such disease during service. 38 U.S.C. §§ 1113, 1116; 38 C.F.R. §§ 3.307, 3.309. The diseases listed under 38 C.F.R. § 3.309(e) shall have become manifest to a degree of ten percent or more at any time after service, with some exceptions. 38 U.S.C. §§ 1116; 38 C.F.R. § 3.307(a)(6)(ii). Veterans who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 are presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. §§ 1116; 38 C.F.R. §§ 3.307(a)(6)(iii). Here, the Veteran was not in Vietnam during the time when herbicide agents were used. Indeed, his personnel records do not reflect he was in Vietnam during 1962, and a lay statement from the Veteran states he was in Barstow, California during that time. The Veteran has not presented any valid theory of potential herbicide exposure. As such, his claim fails under the theory of entitlement to presumptive service connection based on herbicide agent exposure, too. The Board further notes that there is no competent evidence that the Veteran’s colon tumor manifested to a compensable degree within one year of service discharge. As such, the provisions of 38 C.F.R. § 3.309(a) are not applicable. Additionally, the Veteran is not competent to attribute any specific symptoms as the manifestation of a chronic colon tumor being present since service discharge. As such, the provisions of 38 C.F.R. § 3.303(b) are not applicable. The Veteran himself is not shown to be competent to self-diagnose the onset and/or etiology of his colon tumor. Based on the aggregate evidence of record, the Board must deny the Veteran’s claim for entitlement to service connection for tumors, right side of colon. 2. Entitlement to service connection for a lower back condition The Veteran contends that he suffers from a lower back condition as a result of his active duty military service. Specifically, he cites to his military occupational specialty (MOS) performing infantry assault and the duties affiliated with that as the cause of his lower back condition. He testified during his October 2019 video conference hearing that he was required to carry heavy equipment including machine guns, rocket launchers, and rocket rounds through the jungle. Notably, the rocket rounds weighed approximately 25 pounds each and he was often required to carry four rounds at a time in addition to his personal gear. He speculates that his lower back problems developed as a result of carrying these devices combined with the damp environment. The record reflects that the Veteran has a current diagnosis for his back condition. A radiology report from January 2018 documented “very mild degenerative changes” in the Veteran’s spine. In February 2020, the Veteran received a VA examination, whereby the examiner diagnosed him with degenerative arthritis of the spine. The Board therefore accepts degenerative arthritis as a current diagnosis for the Veteran’s back. The Veteran’s STRs are silent for complaints, treatment, or diagnoses relating to his back. His multiple Reports of Medical Examinations and Reports of Medical History throughout his years of active duty service and Reserves service are largely silent for reference to any ailment of his back. Nonetheless, the Board finds that his descriptions of rigorous military duties – specifically carrying heavy equipment through the jungle – are consistent with the places, types, and circumstances of his active duty, and accepts it as an in-service event. 38 U.S.C. § 1154(a). An etiology opinion regarding the Veteran’s lower back condition was provided following the February 2020 VA examination. The examiner opined it was less likely than not that the Veteran’s lower back condition was incurred in or caused by his active duty service. Acknowledging the Veteran’s suggestion that his back arthritis developed as a result of carrying heavy equipment in service, the examiner rationalized his position by noting the lack of complaints, treatment, or diagnoses of back problems in his STRs and at separation, stating: “Degenerative changes seen on the x-ray reflects natural progression of degenerative process. The prevalence of osteoarthritis increases with age such that 30 to 50 percent of adults over the age of 65 years suffer from this condition.” The evidence of record does not support the finding that the Veteran’s present-day degenerative arthritis of the back is etiologically related to his MOS duties. Notably, there is no credible evidence to establish that he has had problems with his back since separation. In fact, the Veteran specifically denied recurrent back pain on military examinations in December 1982, December 1986, February 19991 and October 1996. At those times, the spine was clinically evaluated as normal. The treatment records affiliated with the file do not contain references to a back problem until 2018, and his STRs were silent for complaints or treatment for back problems. Moreover, the VA examiner determined there was no nexus between the in-service event and the Veteran’s current condition because his condition was reflective of the “natural progression of degenerative process.” The Board assigns great probative value to this opinion as it is based upon an accurate review of the lay and medical history. The Board has considered the Veteran’s claim under the provisions of 38 C.F.R. §§ 3.303(b) and 3.309(a) pertaining to continuity of symptomatology. As noted above, the Veteran specifically denied recurrent back pain on military examinations in December 1982, December 1986, February 19991 and October 1996. The Board has no reason to doubt the accuracy of his statements at those times which are consistent with the normal clinical findings of the spine on each of those occasions. Thus, the credible lay evidence reflects no chronicity of symptoms since service discharge or the manifestation of arthritis within one year of service discharge. There is no doubt of material fact to be resolved in the Veteran’s favor. 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to service connection for arthritis, bilateral feet 2. Entitlement to service connection for arthritis, bilateral legs 3. Entitlement to service connection for arthritis, bilateral arms 4. Entitlement to service connection for arthritis, bilateral hands The Veteran contends that he suffers from arthritis of the feet, legs, arms, and hands as a result of his active duty military service. As he did with his claim for service connection for a back condition, he cites to his MOS performing infantry assault and the duties affiliated with that as the cause of his conditions. He testified during his October 2019 video conference hearing that he was required to carry heavy equipment including machine guns, rocket launchers, and rocket rounds through the jungle. Notably, the rocket rounds weighed approximately 25 pounds each and he was often required to carry four rounds at a time in addition to his personal gear. He speculates that his arthritis developed as a result of carrying these devices combined with the damp environment. The record reflects that the Veteran has a current diagnosis for his feet, legs, arms, and hands. VA CAPRI treatment records substantiate that he suffers from arthritis, notably in his arms, hands, and legs. In February 2020, the Veteran received a VA examination for each of these areas. The examiner diagnosed him with the following conditions at that time: bilateral knee tendonitis/tendinosis, bilateral shoulder strain, and bilateral erosive osteoarthritis of the hands. The Board therefore accepts these as current diagnoses for the Veteran’s legs, arms, and hands. As it pertains to the Veteran’s feet, however, the evidence of record does not appear to support the finding that he has a current diagnosis of arthritis for his left foot. An October 2009 radiology report documented that the Veteran had severe degenerative changes of the first MTP joint and mild hammertoe deformities of the right foot, but did not include any findings for his left foot. The Veteran’s main contention regarding his feet appears to be numbness, as reported in his CAPRI VA treatment records. Indeed, during the February 2020 VA examination, the Veteran complained of weakness and soreness in his feet, believing it to be related to his diabetes mellitus type II for which he is not service-connected. As such, the Veteran’s claim for entitlement to service connection for arthritis, bilateral feet shall be considered as amended to entitlement to service connection for arthritis, right foot. The Veteran’s STRs are silent for complaints, treatment, or diagnoses relating to his legs, feet, arms, and/or hands. His multiple Reports of Medical Examinations and Reports of Medical History throughout his years of active duty service and Reserves service are largely silent for reference to any ailment of these body parts. The only mention comes in the form of the Veteran marking “yes” when asked if he has foot trouble on his October 1996 Report of Medical History; he did not elaborate on the extent of his condition though. Nonetheless, the Board finds that his descriptions of rigorous military duties – specifically carrying heavy equipment through the jungle – are consistent with the places, types, and circumstances of his active duty, and accepts it as an in-service event. 38 U.S.C. § 1154(a). The Board finds, however, that the etiology opinions for these conditions are inadequate for adjudication purposes. As it pertains to the Veteran’s feet, the examiner stated that the Veteran does not currently have a bilateral foot condition that would relate to service, noting his negative separation examination and the absence of diagnosis in his CAPRI VA treatment records. However, the examiner did not appear to consider the Veteran’s right foot first MTP joint severe degenerative changes or hammertoe deformity, nor did he acknowledge the Veteran’s complaints of foot trouble on his Report of Medical History when formulating his opinion. Similarly, the examiner provided as follows when opining that the Veteran’s bilateral leg condition was less likely than not incurred in or caused by his active duty service: “Veteran believes his present-day knee pain was caused by his active duty service. Specifically, he stated that his [MOS] required him to carry heavy equipment…through the jungle…He believes that bilateral knee pain developed as a result of carrying these devices combined, he however did not see medical provider during service and several years after separation. Currently no treatment other than physical therapy. [STRs] do not contain complaints, treatment, or diagnosis for knee condition. Clinical evaluation on separation examination normal lower extremities. The evidence does not show that disease developed within the specified time period after release from service.” Here, the examiner provided an opinion regarding chronicity; however, he did not consider whether it is medically likely that his bilateral knee tendonitis/tendinosis developed as a result of the duties of his MOS years later. The opinions provided for the Veteran’s bilateral arms and hands reported it is less likely than not that either condition was incurred in or caused by the in-service event. When asked for a rationalization regarding his opinion for the Veteran’s arms, he stated that the Veteran did not seek medical treatment before, during, or after service because he was young and “tried to live with it.” He separated from the service and went into inactive duty, performing all the duties of his rate at sea and in the field.” The examiner made similar conclusions regarding the Veteran’s hand condition; he observed STRs silent for complaints, treatment, or diagnoses for any hand condition throughout his service and at separation, and noted he performed satisfactorily on inactive duty. He further concluded erosive osteoarthritis is a progressive disease affecting the interphalangeal joints of the hand, with a mean age of onset around 50 years old (the youngest being 36 years); he recorded that the Veteran was 17-21 years old during service. The examiner relies on the fact the Veteran’s STRs are silent for complaints instead of taking his statements attesting to chronic pain since service at face value. To that end, the Board finds an addendum opinion is warranted for these conditions so the examiner can consider their etiologies. The matters are REMANDED for the following action: 1. The AOJ shall associate the Veteran’s most recent outstanding VA medical treatment records with his file, specifically those records from April 2016 to the present. 2. Then, the AOJ should seek addendum opinions for the etiologies of the Veteran’s bilateral arthritis of the arms, feet, hands, and legs. The claims file must be made available to and be reviewed by the examiner. The examiner should specifically indicate whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s arthritis of the arms, feet, hands, and/or legs occurred in or is otherwise etiologically related to the Veteran’s military service, to include carrying heavy equipment sometimes weighing over 100 pounds through the jungle. The examiner should accept as fact that the Veteran has endorsed pain since service. The examiner should consider the following: • the Veteran’s STRs, noting the lack of complaints of joint pain; • imaging reports associated with the record in January 2017 and March 2017; • CAPRI VA treatment records, noting osteoarthritis; • testimony from the October 2019 video conference hearing; • the Veteran’s correspondence and literature received in November 2019; and • the February 2020 VA examinations and opinions. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Thereafter, readjudicate the claims. If any benefit sought on appeal remains denied, furnish the Veteran and his representative, if any, a supplemental statement of the case and an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Victoria A. Banis, 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.