Citation Nr: 21062840 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 20-24 531 DATE: October 12, 2021 ORDER As new and material evidence has been received, the Veteran's claim for entitlement to service connection for post-operative residuals, right radical hemicolectomy, adenocarcinoma of the cecum is reopened. Entitlement to service connection for colon cancer and residuals thereof is granted. Entitlement to service connection to erectile dysfunction is granted. FINDINGS OF FACT 1. A September 2012 rating decision denied entitlement to service connection for post-operative residuals, right radical hemicolectomy, adenocarcinoma of the cecum. The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of the notice of that rating decision. 2. Some of the evidence received since September 2012, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for post-operative residuals, right radical hemicolectomy, adenocarcinoma of the cecum. 3. The evidence shows that the Veteran's colon cancer and residuals thereof was caused by events during his active-duty military service. 4. The evidence shows that the Veteran's service-connected disabilities caused and aggravated his erectile dysfunction. CONCLUSIONS OF LAW 1. The September 2012 rating decision, which denied the Veteran's claims of entitlement to service connection for post-operative residuals, right radical hemicolectomy, adenocarcinoma of the cecum, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103. 2. The evidence received since the September 2012 rating decision is new and material, and the claim of entitlement to service connection for post-operative residuals, right radical hemicolectomy, adenocarcinoma of the cecum is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156. 3. The criteria for service connection for colon cancer and residuals thereof are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for erectile dysfunction are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from January 1965 to January 1969. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a February 2021 hearing. 1. As new and material evidence has been received, the Veteran's claim for entitlement to service connection for post-operative residuals, right radical hemicolectomy, adenocarcinoma of the cecum is reopened. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108 (2012). New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the "credibility" of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In this case, a September 2012 rating decision denied entitlement to service connection for post-operative residuals, right radical hemicolectomy, adenocarcinoma of the cecum. The RO denied the claim in part because there was insufficient evidence that the Veteran's exposure to chemicals (e.g. herbicides and water contaminants at Camp Lejeune) during his military service caused his cancer. The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of the notice of that rating decision. Accordingly, the Board finds the September 2012 rating decision is final. See 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103. However, the Board finds some of the evidence received since September 2012 relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of service connection for post-operative residuals, right radical hemicolectomy, adenocarcinoma of the cecum. This evidence includes medical literature VA received in March 2020 indicating that in-service exposure to microwave radiation may have caused the cancer. It also includes a February 2020 opinion from the Veteran's treating physician, S.F., indicating it's at least as likely as not that the cancer is related to his exposure to contaminants at Camp Lejeune. The Board presumes this evidence to be credible for the purpose of reopening the Veteran's claim. The Board finds this evidence would trigger VA's duty to provide an examination in adjudicating a non-final claim. The Board finds this evidence raises a reasonable possibility of substantiating that the Veteran's exposure to chemicals during his military service cause his cancer, which was not established at the time of the prior decision. As new and material evidence has been received, the Veteran's claim for entitlement to service connection for post-operative residuals, right radical hemicolectomy, adenocarcinoma of the cecum (i.e. colon cancer and residuals thereof) is reopened. 2. Entitlement to service connection for colon cancer and residuals thereof is granted. Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310. This includes disability made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In Ward v. Wilkie, 31 Vet. App. 233 (2019), the CAVC clarified that incremental increase in disability (any additional impairment of earning capacity) in non-service-connected disabilities resulting from a service-connected condition regardless of its permanence may be a basis for secondary service connection under 38 C.F.R. § 3.310. 38 C.F.R. § 3.307(a)(6)(iii) provides that a veteran who, during active military, naval, or air service, served 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)(7)(iii) provides that a veteran, or former reservist or member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987, shall be presumed to have been exposed during such service to the contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. After reviewing the totality of the evidence including the new and material evidence cited above, the Board finds that the evidence supports a finding that the Veteran's colon cancer was caused by events during his military service. VA examinations confirm the Veteran experiences residuals of colon cancer. See April 2020 VA Colon Cancer examination; March 2020 VA Colon Cancer examination. The Veteran's service personnel records indicate he was exposed to herbicides during his service in the Republic of Vietnam and to contaminants at Camp Lejeune. See, e.g., Veteran's Certificate of Release of Discharge. The Board finds no compelling affirmative evidence to the contrary. The service records also indicate the Veteran may have been exposed to some radiation in his military occupational specialty as a Radio Telegraph Operator. See id. Therefore, the Board finds the current disability and in-service event elements for service connection are met. The Board affords less probative value to the negative nexus opinions from VA examiners in the record. As the Veteran has noted on appeal, the negative opinions identify a range of risk factors for colon cancer and indicate the Veteran's colon cancer was less likely than not caused by his exposure to Camp Lejeune contaminants as they are not clearly identified as a risk factor in medical literature. See April 2020 VA Colon Cancer examination; March 2020 VA Colon Cancer examination. However, the examiners did not include adequate discussion of the specific herbicides and other contaminants the Veteran was exposed to as well as medical literature in the record indicating such substances are carcinogenic. See, e.g., medical articles received in March 2020 and June 2011. Moreover, the examiners discounted positive opinions from the Veteran's treating physician without acknowledging additional letters including more rationale in the context of the treating provider's familiarity with the patient and the claims file. The examiners also did not adequately discuss the Veteran's contentions about radiation exposure with reference to pertinent literature in the record. See, e.g., medical articles received in March 2020 and June 2011. However, the March 2020 examiner did indicate the Veteran's service-connected diabetes is a risk factor for colon cancer, which could support granting the claim on a secondary basis under 38 C.F.R. § 3.310. The Board ultimately affords more probative value to the positive nexus opinions from the Veteran's treating physician. The treating physician offers multiple letters that cite a familiarity with the Veteran's medical history, in-service exposures to carcinogens, and pertinent medical experience as bases to conclude it is at least as likely as not that the Veteran's in-service exposures caused his colon cancer. See, e.g., February 2020, July 2012, and November 2011 letters from S.F., M.D. The Board affords some probative value to the opinions and finds them more probative than the negative opinions. Accordingly, the Board grants the Veteran's claim for entitlement to service connection for colon cancer and residuals thereof. 3. Entitlement to service connection to erectile dysfunction secondary to service-connected disabilities is granted. After reviewing the evidence of record, the Board finds that the evidence shows that the Veteran's erectile dysfunction has been caused and aggravated by his service-connected disabilities. The Veteran is service connected for many conditions including a psychiatric disorder, diabetes mellitus, and residuals of a stroke associated with diabetes. A May 2021 VA Central Nervous System and Neuromuscular Diseases Examiner indicated that the Veteran's erectile dysfunction is at least as likely as not attributable to the service-connected diabetes residuals including the Veteran's stroke. A prior VA examiner from February 2017 indicated that the erectile dysfunction was not caused by the service-connected diabetes, the stroke, and residuals thereof in part because the record indicates the Veteran experienced erectile dysfunction prior to the stroke. However, the opinion does not address the effects of the diabetes mellitus and other service-conditions generally and the extent to which the service-connected conditions aggravate the erectile dysfunction. The older opinion also is not based on more recent evidence about the condition including physical examinations, which the May 2021 examiner was able to consider. Accordingly, the Board affords more probative value to the newer opinion and finds that the Veteran's erectile dysfunction has been caused and aggravated by the Veteran's service-connected disabilities. Accordingly, the Board grants entitlement to service connection to erectile dysfunction secondary to service-connected disabilities. 38 C.F.R. § 3.310. C. TRUEBA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Duffy 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.