Citation Nr: 21066116 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 18-41 880 DATE: October 28, 2021 ORDER Service connection for colon cancer, to include as secondary to service-connected diabetes mellitus, type II, and/or as presumptively related to herbicide exposure, is denied. FINDING OF FACT The evidence does not establish that the Veteran's colon cancer onset during service, is directly related to service, is the result of his presumed herbicide exposure, or is proximately related to a service-connected disability. CONCLUSION OF LAW The criteria for service connection for colon cancer have not been met. 38 U.S.C. §§ 1110, 1113, 1116, 1131, 5107; 38 C.F.R. §§ 3.4, 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from February 1963 to February 1967, to include service at Korat Royal Thai Air Force Base (RTAFB). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2018 decision by the Agency of Original Jurisdiction (AOJ). In August 2019, January 2021, and July 2021, the Board remanded the appeal for additional development and it now returns for further appellate review. At various points during the pendency of his appeal the Veteran and his representative have asserted that the Veteran's colon cancer is either directly related to military service, proximately related (caused or aggravated by) a service-connected disability, specifically his service-connected diabetes, or presumptively related to his in-service herbicide exposure while stationed in Thailand. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be also granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. If a veteran were exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected on a presumptive basis if the requirements of section 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 section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). To benefit from the presumption of service connection for diseases associated with herbicide-agent exposure, the Veteran must have one of the diseases set forth in 38 C.F.R. § 3.309(e). However, when diseases do not appear under the regulation, a veteran can still proceed to establish service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1045 (Fed. Cir. 1994). Direct Service Connection Review of the Veteran's service treatment records does not show a diagnosis of colon cancer in service. He was treated for an upper respiratory infection, cold sores, and a rash on his neck while stationed in Thailand; his December 1966 service separation examination do not reflect any history or current gastrointestinal or genitourinary illnesses or diagnoses. After service, review of the Veteran's VA outpatient treatment records beginning in 2000 reflect that the Veteran underwent a colonoscopy in August 2013 which was concerning for colon cancer; further workup was deferred due to more immediate concerns regarding the Veteran's cardiac conditions. In July 2017, the Veteran went to the emergency room for rectal bleeding; a colonoscopy was completed which showed a mass that turned out to be malignant. He underwent an open right hemicolectomy in August 2017 at a VA facility; a November 2017 VA treatment record noted that he did not require post-surgical chemotherapy, radiation therapy, or other subsequent treatment. These records do not reflect an opinion by a treating provider that the Veteran's colon cancer onset during or is otherwise related to his military service. Moreover, the competent evidence of record does not relate the Veteran's colon cancer to his military service. Review of the Veteran's VA outpatient treatment records does not reveal a competent medical opinion connecting the Veteran's colon cancer directly to his military service. In November 2020, a VA examiner noted that evidence in medical record of chronic condition and or ongoing issues in service as opposed to acute and resolved pathology is needed to show that a current pathology is a continuum of an in service issue, and the in-service treatment records and separation examination showed no clear evidence of chronic and ongoing issues suggestive of the presence of colon cancer in service. As such, it was less likely than not colon cancer diagnosed 5 decades after separation was caused by colon cancer in service. Secondary Service Connection The Veteran's representative has argued that the Veteran's colon cancer was caused or aggravated by his service-connected diabetes mellitus, type II. However, the competent medical evidence does not reflect such a nexus. The VA opinion obtained in August 2021 addressed this issue. The VA examiner noted that the medical journal article cited by the Veteran's representative had been reviewed, but that "increased risks and associations do not rise to the level of causation needed in order to connect two conditions together;" the examiner also noted that review of the VA outpatient treatment records between 2018 and 2020 did not support causation between the two conditions. Thus, it was less likely than not that the Veteran's colon cancer was caused by his diabetes. The VA examiner also concluded that there was insufficient clinical evidence that the Veteran's diabetes worsened and/or aggravated his colon cancer. Citing to a July 2021 VA outpatient record, the VA examiner concluded that the Veteran was doing well; therefore, it was less than likely than not that the claimed colon cancer was aggravated by the Veteran's service-connected diabetes. The Veteran's representative has expressed his opinion that the Veteran's colon cancer is proximately due to or the result of the service-connected diabetes mellitus. However, the issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Therefore, it is outside the competence of the representative in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Presumptive Service Connection Herbicides Veterans serving during the Vietnam era may have been exposed to herbicides during in-country service, to include Vietnam and Thailand. Specifically, VA has determined that veterans who served on Royal Thai Air Force (RTAF) bases at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, near the air base perimeter anytime between February 28, 1961 and May 7, 1975, may have been exposed to herbicides. In its August 2019 decision, the Board found that the Veteran was exposed to herbicide agents while serving near the perimeter of Korat RTAF Base in Thailand during the Vietnam era. Based on the authority granted by the Agent Orange Act of 1991, a presumption of service connection conditions that VA has found to have a statistically significant association with in-service herbicide exposure. See 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). The Secretary of VA has also determined that there is no positive association between exposure to herbicide agents and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. While colon cancer is not along those conditions listed, service connection based on herbicide exposure for a non-presumptive disease may still be granted on a direct basis if the medical evidence supports a relationship between that disease and exposure to an herbicide agent. See Combee, supra. Unfortunately, the evidence does not establish that the Veteran's colon cancer is related to his presumed herbicide exposure. Review of the Veteran's VA outpatient treatment records do not reflect an opinion connecting the Veteran's colon cancer to his herbicide exposure. A VA opinion was obtained in November 2020, but as noted in a previous Board remand, the examiner addressed whether the Veteran's colon cancer was related to his service in Vietnam. Being that the Veteran did not have service in Vietnam, the Board finds this opinion (with respect to the connection between the Veteran's colon cancer and his herbicide exposure) to be of little to no probative value; it is not clear that his service details were reviewed before an opinion was obtained. An opinion based on an inaccurate factual premise holds no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) In May 2021, VA obtained a medical nexus opinion as to whether there was a connection between the Veteran's herbicide exposure and his colon cancer. After review of the record, the VA examiner pointed out that colon cancer is a common cancer with many known risk factors. The medical community has not established a positive link between colon cancer and Agent Orange Exposure. A medical journal article, titled "Veterans and Agent Orange: Health Effects of Herbicides Used in Vietnam" from the Institute of Medicine (IOM), noted that the IOM's committee found limited/suggestive evidence of no association between certain cancers (including gastrointestinal tumors of the colon) and the herbicides studied. As such, it is less than likely than not that the claimed Veteran's colon cancer was incurred in or is otherwise related to his time in service, to include his conceded exposure to herbicide agents while serving in Thailand. The Veteran's representative has expressed his opinion that the Veteran's colon cancer is still the result of herbicide exposure, despite not being among the conditions listed in 38 C.F.R. § 3.309. However, the issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Therefore, it is outside the competence of the representative in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau; see also Kahana. For these reasons and bases, the preponderance of the evidence is against finding that the Veteran's colon cancer is the direct result of his service, to include presumed herbicide exposure, to caused or aggravated by a service-connected disability. As the preponderance of the evidence is against his claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Thus, his claim is denied. J. M. Kirby Veterans Law Judge Board of Veterans' Appeals 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.