Citation Nr: 21062076 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 15-03 420 DATE: October 6, 2021 ORDER Entitlement to service connection for colon cancer, to include as due to herbicide exposure is denied. FINDING OF FACT The Veteran's colon cancer was not shown as chronic in service; did not manifest to a compensable degree within the applicable presumptive period; and is not otherwise etiologically related to active service, to include as due to herbicide exposure therein. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for colon cancer, to include as due to herbicide exposure have not been met. 38U.S.C. §§1110, 1131, 5107 (2012); 38C.F.R. §§3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1968 to June 1971, to include service in the Republic of Vietnam. For his exemplary service, he was awarded multiple medals including the Vietnam service medal, Vietnam campaign medal, National Defense medal, and Sharpshooter medal. The case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in July 2013 and August 2016 by a Department of Veterans Affairs (VA) Regional Office. Pursuant to a July 2020 Board decision, this matter was remanded for additional development to include scheduling the Veteran for a new VA examination. As the requested development is now complete, this matter has been returned to the Board for appellate consideration. Duty to Assist and to Notify VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2020). Copies of compliant VCAA notices were located in the claim's file. VA's duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Thus, upon careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Presumptive Service Connection - Herbicide Exposure VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307 (a)(6) are met. 38 C.F.R. § 3.309 (e). A Veteran who had a period of active service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be 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 C.F.R. § 3.307 (a). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. A Veteran who had a period of active service between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicide agents are known to have been applied during that period, shall be 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. The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. If a Veteran was exposed to an herbicide agent during active service, the diseases enumerated at 38 C.F.R. § 3.309 (e) shall be service connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied. The diseases listed at 38 C.F.R. § 3.309 (e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307 (a)(6)(ii). Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has held that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). That is to say, the Agent Orange presumption does not preclude a veteran from establishing direct service connection with proof of actual direct causation. Service connection may be granted on a secondary basis for a disability which is "proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310 (a). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, regarding the Veteran's claim on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). 1. Entitlement to service connection for colon cancer, to include as due to herbicide exposure The Veteran asserts that service connection for colon cancer is causally related to active service, to include as due to herbicide exposure in the Republic of Vietnam. As discussed in more detail below, the preponderance of the evidence is against his claim. In analyzing the Veteran's claim, the threshold inquiry before the Board is whether the Veteran's current diagnosis was incurred in or otherwise casually related to active service, to include as due to an in-service injury or disease. While the Board recognizes that the Veteran's medical history includes a diagnosis of colon cancer, the evidence of record does not establish a causal linkage to active service, to include as due to herbicide exposure therein. According to military personnel records, the Veteran's official military occupation was listed as an aircraft mechanic and aircraft powertrain repairman. Service records also confirm the award of multiple medals for service in the Republic of Vietnam. Therefore, exposure to herbicides is conceded. Service treatment records document treatment for digestive symptoms. On multiple occasions in March 1969, progress notes show complaints of stomach cramps over a period of several days, tenderness in epigastric region with abdominal softness and rebound tenderness in same area. At separation, a medical examination report was silent for any complaints of digestive symptoms nor any related abnormality in February 1971. Post-service treatment records show that the Veteran has a current diagnosis of colon cancer. A primary care physician's assessment, dated December 2014, indicated that the Veteran underwent a new patient evaluation. Current conditions included a history of diabetes mellitus, type II. Prescribed treatments included oral medication, Metformin, and insulin. A stool sample was positive for occult blood and a colonoscopy was requested. In July 2015, the Veteran was diagnosed with colon cancer. Thereafter, he underwent a hemicolectomy with colostomy. His treating physician noted that the procedure was complicated by sepsis. Post-surgical chemotherapy treatments were not deemed necessary. Six months later, a primary care physician's note listed a history of treatment for conditions including diabetes (diagnosed in 2005), hypertension, hyperlipidemia, diabetic peripheral neuropathy, and obesity in January 2016. A private physician's statement, dated December 2015, suggested that it was not possible to determine the date of onset of the Veteran's colon cancer as the condition could persist for years before becoming symptomatic. Nevertheless, the physician acknowledged a possibility that the condition could have been caused or aggravated by the Veteran's active service. On examination in July 2016, the Veteran was afforded a VA examination. A diagnosis of status post (s/p) resection of large intestine and colostomy for colon cancer s/p colon cancer was indicated. The Veteran described a functional impact as difficulty lifting, bending, or carrying heavy objects. Following the clinical evaluation, the examiner opined that it was less likely than not that the Veteran's colon cancer was incurred in or caused by an in-service injury, event, or disease. In support of the stated conclusion, the examiner noted that there is no medical evidence or supportive case study findings which link a higher risk of colon cancer due to exposure to carcinogen exposure during military service. In a September 2019 appellant's brief, the Veteran's representative suggested that inadequate consideration was given to the Veteran's private physician opinion regarding a possible service-related etiology of his colon cancer. Pursuant to a July 2020 Board Remand decision, the Board found the July 2016 VA opinion inadequate. Specifically, the decision noted that the examiner's opinion failed to address service treatment records which confirm complaints of abdominal symptoms in service and the possible onset of a digestive condition therein. Further, there was no discussion of the Veteran's private physician's opinion which noted that colon cancer could be present for years before becoming symptomatic. In October 2020, an addendum opinion was prepared. Following a review of the record, to include conflicting medical evidence, the examiner opined that there was no objective medical evidence to support an association between the Veteran's colon cancer and other possible causes suggested in the record. Any physician or provider opining that the colon cancer is due to active service or herbicide exposure is purely speculating. Review of the medical evidence confirms that the Veteran has a history of very significant tobacco use, to include an approximately 80-packs per year habit. VA medical center records also indicate that the Veteran is morbidly obese. A history of excessive smoking and obesity are very significant risk factors. Considering the above, the examiner reported an inability to attribute the Veteran's colon cancer to any particular cause without resorting to speculating. Colorectal cancer is a multifactorial disease process. Genetic factors, environmental exposures (including diet), and inflammatory conditions of digestive tract are all involved in the development of colorectal cancer. Current research indicates that genetic factors have the greatest correlation to colorectal cancer. Epidemiologic studies have also linked increased risk of colorectal cancer with a diet high in red meat and animal fat, low-fiber diets, and low overall intake of fruits and vegetables. The risk was especially high in overweight and obese men and, paradoxically, in lean women. The noted risk was also increased in men and women who do not drink alcohol. Factors associated with lower risk include folate intake, calcium intake, and estrogen replacement therapy. Obesity and lifestyle choices such as cigarette smoking, alcohol consumption, and sedentary habits have also been associated with increased risk for colorectal cancer. In making all determinations, the Board has fully considered all medical evidence and lay assertions of record. Generally, the Veteran is presumed competent to report on the onset of current symptoms, their impact on daily living and employment, and such reporting is deemed credible. However, as to the etiology of a particular claimed disability, the issue of causation of a medical condition is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the instant case, there is no evidence that Veteran possesses the required training to diagnose color cancer or opine as to its etiology. To the extent his statements may be competent, the Board ultimately assigns greater probative weight to the medical evidence of record, to include opinions rendered by trained medical professionals based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. The Board observes that the VA examiners noted an inability to offer a definitive opinion regarding the possibility of an etiological linkage between the Veteran's colon cancer and in service exposure to agent orange. However, the opinions all note the Veteran's extensive history of risk factors to include genetic factors, comorbidities, and inflammatory conditions are more likely related to his diagnosis of colon cancer than his exposure to herbicides, which concluded decades prior to his initial diagnosis. While the Board notes the Veteran's assertion that his colon cancer is due to herbicide exposure in service, the medical evidence does not support his assertion. Accordingly, the Board finds that service connection is not warranted on a direct or presumptive basis. Therefore, as the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The claim of entitlement to service connection for colon cancer as due to Agent Orange exposure must be denied. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Whitaker, 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.