Citation Nr: 21070798 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 17-13 667 DATE: November 26, 2021 ORDER Entitlement to service connection for colon cancer, to include as due to exposure to herbicide agents, or as secondary to service-connected bladder cancer, is denied. FINDING OF FACT The Veteran's colon cancer was not shown in service or for many years thereafter and is not otherwise etiologically related to service, to include as due to herbicide agent exposure, or as secondary to service-connected bladder cancer. CONCLUSION OF LAW The criteria for entitlement to service connection for colon cancer, to include as due to exposure to herbicide agents, or as secondary to service-connected bladder cancer, have not been met. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from May 1967 to February 1971. This matter was previously denied by the Board of Veterans' Appeals (Board) in January 2019 and the Veteran timely appealed to the Court of Appeals for Veterans Claims (the Court). In a September 2019 Joint Motion for Remand, the Court remanded the matter for further adjudication after it was determined that the Board provided inadequate reasons and bases for its denial and did not ensure that the VA examination report was adequate. Specifically, the VA examiner based their opinion on inadequate facts concerning the Veteran's medical history and did not consider whether the Veteran's colon cancer could be due to exposure to Agent Orange or related to his in-service treatment for urethritis with symptoms including urethral discharge and burning upon urination. The Board subsequently remanded the matter in April 2020 to obtain a new VA examination and opinion and to obtain additional medical records, including private treatment records. The Board then remanded the matter again in April 2021 after it was determined that relevant private treatment records were still outstanding. In an April 2021 brief, the Veteran's representative also contended that the VA should address whether the Veteran's now-service-connected bladder cancer could have caused or aggravated the Veteran's colon cancer. As such, the Board also instructed the Regional Office (RO) to obtain treatment records and an addendum medical opinion. The Board finds that the RO has adequately performed the remand directives, as the Veteran's updated private medical records have been obtained, and an addendum medical opinion was obtained. The requested development has been completed, and the appeal has returned to the Board for further appellate consideration. The Board is now satisfied there was substantial compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection is warranted for a veteran who has been exposed to a toxic herbicide agent during active military service (subject to the requirements of 38 C.F.R. § 3.307(a)) for diseases such as chloracne or other acneform diseases consistent with ischemic heart disease, Type 2 diabetes, Hodgkin's disease, non-Hodgkin's lymphoma, porphyria cutanea tarda, multiple myeloma, prostate cancer, soft-tissue sarcomas, early-onset peripheral neuropathy, Parkinson's disease, chloracne and respiratory cancers, and B-cell leukemias. 38 C.F.R. § 3.309(e). To determine whether a Veteran was exposed to herbicide agents, VA regulations state that a veteran who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975 shall be presumed to have been exposed during such service to certain toxic herbicide agents, with the most common being "Agent Orange," unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). Therefore, if a Veteran served in-country in Vietnam, they are entitled to a presumption of herbicide exposure, and need not prove actual exposure to herbicides. The Veteran served in Vietnam during this time and is presumed to have been exposed to herbicide agents. In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Entitlement to service connection for colon cancer, to include as due to exposure to herbicide agents, or as secondary to service-connected bladder cancer The Veteran contends that his colon cancer is related to his active duty service. Specifically, he contends that his colon cancer is related to exposure to Agent Orange while serving in Vietnam, or it is related to his service-connected bladder cancer. After reviewing all the evidence of record, the Board determines that service connection for colon cancer is not warranted. As an initial matter, the Board finds that the Veteran is not entitled to service connection for colon cancer on a presumptive basis due to herbicide agent exposure per 38 C.F.R. §§ 3.307(a)(6)(ii) and 3.309(e). Although the Veteran is presumed to have been exposed to herbicide agents, colon cancer is not listed as a condition under 38 C.F.R. § 3.309(e) as a disease associated with exposure to certain herbicide agents. Next, although the Veteran is not entitled to presumptive service connection for colon cancer due to herbicide agent exposure per 38 C.F.R. §§ 3.307 and 3.309, he is not precluded from demonstrating that his colon cancer was proximately due to, the result of, or aggravated by his Agent Orange exposure or other in-service illness, event, or injury. See Combee v. Brown, 43 F.3d 1039, 1041-42 (Fed. Cir. 1994). However, the competent evidence fails to establish a relationship between active duty and the Veteran's colon cancer. First, colon cancer was not shown in service. Specifically, the Veteran's service treatment records fail to demonstrate complaints or symptoms of, treatment for, or a diagnosis of colon cancer. Of particular note, his February 1971 separation examination was normal and does not indicate a diagnosis or symptoms related to colon cancer. Furthermore, the evidence of record does not contain a diagnosis of colon cancer until 2006, which is approximately 35 years after separating from service. Therefore, continuity of symptoms since service is not shown. Indeed, the Veteran has not asserted that he has had colon cancer since service. Next, service connection may be granted if the evidence otherwise reflects that the Veteran's current residuals of colon cancer, diagnosed as recently as October 2020, are related to service. However, after a review of all available evidence, service connection is not warranted on this basis. Specifically, a VA examiner reviewed the evidence of record in February 2017 and opined that the Veteran's colon cancer was less likely than not caused by the Veteran's exposure to degreasing agents and solvents during service. The examiner stated: "[t]he Veteran's most important risk factors for developing colon cancer are his increasing age, genetic[s], obesity and history of cigarette smoking. This incidence of colon cancer increases significantly between 40 and 50 with age specific increases for each decade after that." The examiner noted that the Veteran's father had colon cancer and inherited susceptibility is a major risk factor. Furthermore, they stated that the Veteran's body mass index (BMI) is 35, and he had a 15+ year history of smoking. Lastly, the examiner noted that environmental exposures to grease and solvents is not found in the risk factor list for colon cancer. The examiner incorrectly stated that the Veteran had a history of over 15 years of smoking, but the Joint Motion for Remand pointed out that the Veteran smoked for only 13 years. Furthermore, the examiner did not opine whether the Veteran's colon cancer was related to exposure to Agent Orange. As such, a new opinion was obtained. Next, in October 2020, a VA examiner opined that it is less likely than not that the Veteran's colon cancer is related to exposure to Agent Orange because the American Cancer Society is silent regarding any association between colon cancer and Agent Orange exposure. Furthermore, the examiner noted that, according to medical literature, family history is the most common risk factor for colorectal cancer next to age. The examiner also agreed with the opinion of the previous VA examiner that increasing age, genetics, obesity, a history of cigarette smoking, and the Veteran's father's history of colon cancer are more likely the cause of the Veteran's colon cancer, and that a 13-year history of smoking, as opposed to a 15-year history of smoking would have essentially the same level of risk for development of colon cancer. Because the examiner examined the Veteran, reviewed the evidence of record, and considered the Veteran's contentions, and their opinion was supported with thorough rationale consistent with the Veteran's medical history and the medical literature, the Board finds this opinion highly probative. Next, the Veteran underwent a September 2021 VA examination, and the examiner opined that it is less likely than not that his colon cancer was related to or aggravated by his service-connected bladder cancer. Specifically, the examiner noted that the Veteran had polyps identified in a 2006 colonoscopy that were precancerous and became malignant, stating that these adenomatous polyps caused the cancer. The examiner also noted that they found no evidence in either medical literature or in the entire claims file that the Veteran's colon cancer was in any way caused or aggravated by his service-connected urothelial cell carcinoma, which is exclusive to the bladder and urethral walls, nor is there any evidence that he Veteran's colon cancer is metastatic in nature. Because the examiner examined the Veteran, reviewed the evidence of record, and considered the Veteran's contentions, and their opinion was supported with thorough rationale consistent with the Veteran's medical history and the medical literature, the Board finds this opinion highly probative. Finally, there is no other evidence in the medical records to support that the Veteran's colon cancer was related to active duty service, to include as due to herbicide agent exposure or his service-connected bladder cancer. In arriving at these conclusions, the Board has considered, in addition to the entire evidence of record, the statements made by the Veteran relating his colon cancer to active duty service. While the Board finds the Veteran's statements credible, in this case, he is not competent to provide testimony regarding the etiology of colon cancer because this disorder is not diagnosed by unique and readily identifiable features. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). He is a lay person without medical training and expertise, and thus, is not able to make an etiological conclusion regarding the cause of his colon cancer, especially given that the evidence fails to demonstrate the onset of colon cancer in service, or any other in-service incident, illness, or injury to which such a condition may be presently linked. The Board concludes that the weight of the evidence is against the claim for service connection and there is no other doubt to be otherwise resolved. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The appeal is denied. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Veltri, Associate Counsel