Citation Nr: 21074010 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-00 391 DATE: December 14, 2021 ORDER Service connection for colon cancer is denied. FINDING OF FACT The preponderance of the evidence shows that the Veteran's colon cancer did not have an in-service onset, and is not otherwise related to service, to include as due to in-service exposure to Agent Orange. CONCLUSION OF LAW The criteria for service connection for colon cancer have not been met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1964 to June 1967, to include in the Republic of Vietnam during the Vietnam War Era. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In a December 2016 VA Form 9, the Veteran requested a hearing before a Veterans Law Judge (VLJ) at the Board. In May 2019, the Veteran through his representative, requested to withdraw the hearing request. As indicated in the January 2020 Board decision, the request was deemed withdrawn. 38 C.F.R. § 20.704(e). In January 2020 and July 2021, the Board remanded the case for additional evidentiary development. The Board finds that there has been substantial compliance with the remand directives, and the case has been properly returned to the Board for further appellate action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Claim Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran contends that he is entitled to service connection for colon cancer, which he contends is related to in-service exposure to Agent Orange. The Veteran has a current diagnosis of colon cancer; a February 2014 VA pathology report, prepared following a February 2014 colonoscopy, reflects a diagnosis of invasive adenocarcinoma per endoscopic biopsy of the rectum. Thus, the first element of the service connection claim (a current disability) is met. Concerning the second, "in-service" element of the service connection claim, the Veteran's sole contention is that his colon cancer is related to in-service Agent Orange exposure. As noted above, the Veteran served in Vietnam during service; as a result, he is presumed to have been exposed to Agent Orange during service. See 38 U.S.C. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). With consideration for the Veteran's presumed in-service Agent Orange exposure, VA laws and regulations provide that, if a veteran was exposed to Agent Orange during service, certain listed diseases are presumed to be due to in-service herbicide exposure, and service connection is warranted on a presumptive basis. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). Colon cancer is not within the list of diseases for which service connection is warranted on a presumptive basis if the Veteran had in-service Agent Orange exposure. However, the Veteran is not precluded from establishing service connection on a direct basis with competent medical evidence linking the Veteran's in-service Agent Orange exposure to his current disability. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service Treatment Records (STRs) are silent for any indication of colon cancer. Rather, the record reflects that the Veteran was first diagnosed with colon cancer in February 2014, as noted above. In July 2014 the Veteran submitted pages of a document prepared under the supervision of Admiral E.R. Zumwalt, Jr (hereinafter, "Zumwalt Report"). The report discusses whether a relationship exists between certain types of cancer, and concludes, in pertinent part, that: After reviewing the scientific literature related to the health effects of Vietnam Veterans exposed to Agent Orange as well as other studies concerning the health hazards of civilian exposure to dioxin contaminants, I conclude that there is adequate evidence for the Secretary [of VA] to reasonably conclude that it is at least as likely as not that there is a relationship between exposure to Agent Orange and the following health problems: non-Hodgkin's lymphoma, chloracne and other skin disorders, lip cancer, bone cancer, soft tissue sarcoma, birth defects, skin cancer, porphyria cutanea tarda and other liver disorders, hodgkin's disease, hematopoietic diseases, multiple myeloma, neurological defects, autoimmune diseases and disorders, leukemia, lung cancer, kidney cancer, malignant Melanoma, pancreatic cancer, stomach cancer, colon cancer, nasal/pharyngeal/esophageal cancers, prostate cancer, testicular cancer, liver cancer, brain cancer, psychosocial effects and gastrointestinal diseases. [sic] The Veteran had a VA intestinal surgery (bowel resection, colostomy, ileostomy) examination in April 2020. The examiner noted a diagnosis of abdominoperineal resection of a colorectal mass. The examiner noted the prior resection procedure, and noted complications requiring bilateral nephrostomy tubes to be placed in September 2014. After the procedure, the Veteran underwent chemotherapy and radiation. The examiner discussed the various current symptoms related to the resection procedure. The examiner reviewed the Veteran's medical records, and opined that the colon cancer was less likely than not related to service, to include in-service Agent Orange exposure. The rationale was as follows: Medical literature currently notes no association between herbicide agents and colon cancer. There is limited/suggestive evidence of no association between exposure to herbicides* (2.4-D; 2.4.5-T and its contaminant TCDD; cacodylic acid; and picloram) and gastrointestinal cancers (stomach, pancreatic, rectal, and colon cancers)." https://www.ncbi.nlm.nih.gov/books/NBK236361/ In July 2021 a VA examiner was again asked to opine as to whether the colon cancer was related to service. In opining, the examiner was directed to addresses the findings of the Zumwalt Report. The examiner acknowledged the diagnosis of adenocarcinoma of the rectum, and discussed the history of the disease since first diagnosed in February 2014. Having reviewed the Veteran's medical records, the examiner opined that the colon cancer was less likely than not related to service, to include in-service Agent Orange exposure. The rationale was as follows: The Veteran was diagnosed with Stage III adenocarcinoma of the rectum [in August 2014]. [VA] does not currently recognize adenocarcinoma of the rectum due to herbicide exposure. There is no evidence that this Veteran's adenocarcinoma of the rectum had its onset during service. In September 2021 the July 2021 examiner provided an addendum opinion. The examiner reviewed the Zumwalt Report. The examiner identified a number of "Key Quotes," which read as follows: "Without exception, the experts who reviewed the work of the Advisory Committee disagreed with its findings and further questioned the validity of the Advisory Committee's review of studies on non-Hodgkin's lymphomas." "a decision which should have been based on scientific data was reduced to vague impressions" [One impartial review team's results were] "a stunning indictment of the Advisory Committee's scientific interpretation and policy judgments" "The work of the Veterans' Advisory Committee on Environmental Hazards, as documented in their November 2, 1989 transcript, has little or no scientific merit, and should not serve as a basis for compensation or regulatory decisions of any sort." "Shamefully, the deception, fraud and political interference that has characterized government sponsored studies on the health effects of exposure to Agent Orange and/or dioxin has not escaped studies ostensibly conducted by independent reviewers, a factor that has only further compounded the erroneous conclusions reached by the government." Finally, the examiner found it less likely than not that the Veteran's colon cancer was related to in-service Agent Orange exposure; specifically, the examiner stated: To date, there is no conclusive evidence linking prior herbicide exposure in Southwest Asia to a subsequent diagnosis of colorectal carcinoma. See Evidence Comments section above. Based on the foregoing, the analysis turns to whether the Veteran's colon cancer is related to his in-service Agent Orange exposure. On that issue, the record contains (i) the Zumwalt Report, as well as the opinions of the (ii) April 2020 VA examiner the (iii) July 2021 examiner, and the (iv) [July 2021 examiner's] September 2021 addendum opinion. Concerning the Zumwalt report, the language purports to support a finding that colon cancer, in a Veteran who was exposed to Agent Orange, is as likely as not related to such exposure. However, the September 2021 addendum opinion contains a VA examiner's refutation of the probative value of that report. Specifically, the examiner noted that the finding of a link between colon cancer and Agent Orange was made by a layperson, Admiral Zumwalt. The examiner suggested that Admiral Zumwalt did not have the expertise necessary to opine on such an issue, which is medically complex and which requires specialized medical expertise, training, and skills. This finding is supported by the record, which is absent as to any evidence that Admiral Zumwalt had the medical expertise to opinion on such a complex medical issue. In light of the September 2021 opinion, and when considering that Admiral Zumwalt did not have the expertise to render an opinion on the issue of whether a link exists between colon cancer and Agent Orange, the Zumwalt report carries no probative weight on that issue. With the above in mind, the April 2020 and July 2021 opinions are not devoid of probative value simply because the examiner did not address the Zumwalt Report. Rather, the April 2020 examiner cited the chemical nature of tactical herbicide, such as Agent Orange, and consulted the medical research to find that the current science does not support a link between exposure to such chemicals and colon cancer. The opinion considered the specific nature of the Veteran's colon cancer, and was formed following consultation to the relevant medical literature. As a result, the opinion carries significant probative weight. Then, in the September 2021 opinion the examiner again noted that there is "no conclusive evidence" to support a link between colon cancer and Agent Orange exposure. While the evidence need not be "conclusive" in the Veteran's favor for a grant of service connection to be warranted, the opinion can be reasonably read to reflect the examiner's intent to convey the notion that the scientific evidence does not support a link between colon cancer and service. When read as so, and without any probative evidence in the record to dispute the examiner's findings, the opinion carries significant probative weight on the issue of whether the medical literature supports a link between the Veteran's colon cancer is related to in-service Agent Orange exposure. Lastly, the Veteran appears sincere in his belief of a link between the colon cancer and in-service Agent Orange exposure. However, the record does not show that the Veteran has the requisite medical expertise to provide such an opinion, because the issue is complex in nature and requires specialized medical expertise, training, and skills. As a result, the Veteran's lay belief that a link exists which would satisfy the "nexus" requirement of the service connection claim carries no probative value. Based on the foregoing, the weight of the evidence is against finding that the Veteran's colon cancer is related to service, including in-service Agent Orange exposure. As so, the "nexus" element of the service connection claim is not met. There is no reasonable doubt to resolve in the Veteran's favor, and the claim must be denied. R. M. KELLY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. KAYS HUKILL 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.