Citation Nr: 21075065 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 16-56 987 DATE: December 17, 2021 ORDER Entitlement to service connection for a colon disorder, to include as due to in-service herbicide agent exposure, is denied. FINDING OF FACT The preponderance of the evidence is against finding the Veteran's colon disorder was incurred in or the result of active duty service or due to herbicide agent exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for a colon disorder to include as due to in-service herbicide agent exposure are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(6), 3.309(a)(e). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1967 to November 1975 with subsequent National Guard and/or Reserve service. This appeal is before the Board of Veterans' Appeals (Board) from a January 2016 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claim was previously remanded by the Board in January 2020 and April 2021 and, for the reasons described herein, the Board finds substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In October 2013, the Board inquired to clarify whether the Veteran intended to withdraw this appeal. No response was received, and is therefore assumed that the Veteran desires to continue with the appeal. SERVICE CONNECTION The Veteran seeks entitlement to service connection for a colon disorder to include as due to in-service herbicide agent exposure. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain diseases with a relationship to herbicide agent exposure, a presumption of service connection arises if the disease manifests to a degree of 10 percent or more following service in the Republic of Vietnam any time during the period from January 9, 1962 to May 7, 1975. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Absent a presumption based on service in Vietnam, service connection may be established on a direct basis if the evidence shows that a current disability was, in fact, caused by exposure to herbicide agents or some other incident of service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Board first notes that the Veteran's service treatment records (STRs) are mostly missing during his active service from 1967 to 1974. As such, the Board has a heightened duty to explain its findings and conclusions and to consider the benefit of the doubt. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Board also acknowledges the Veteran's September 2016 inquiry into Combat Related Special Compensation (CRSC). However and notably, VA is not the agency responsible for making the determination of CRSC eligibility in the first instance. The Veteran must apply with his own service department through the Defense Finance and Accounting Service (DFAS). See 10 U.S.C. § 1414. Once a determination on eligibility has been made by DFAS and notice provided to VA, the Veteran's compensation can be adjusted accordingly. Turning to the evidence of record, the STRs indicate that on 16 reports of medical examination and 11 reports of medical history during the Veteran's reserve service from October 1975 to December 1991, he denied experiencing any issues related to a colon disorder or similar symptomatology and none were noted on any form. A record from April 1994 indicates he was diagnosed with diverticulosis. The service personnel records (SPRs) indicate he served in the Republic of Vietnam. Private medical records indicate he received treatment in 2002 for diverticular disease and cholecystis with gallstones and in January 2003 he underwent a partial colectomy. In May 2012 private records indicate he was diagnosed with diverticular disease. In October 2013, private records indicate he had "multiple colonic diverticula" but was not diagnosed with diverticulitis. In a July 2015 letter to the Board he alleged he experienced "bowel problems, which at times were difficult to control and manage during training." He also alleged that during "the last several months" of his active duty period from May 1967 to May 1968 he began experiencing "difficult bowel movements" described as "irregular and painful" but which he did not report. In September 2016 a letter was entered into the claims file indicating that any service treatment records not already associated with the claims file are presumed lost and to further attempt to acquire them would be futile. Attached to his October 2016 VA Form-9, he alleged his colon disorder is the result of consuming foods contaminated by Agent Orange during his first period of active service. In January 2020 the Board remanded the Veteran's claim to acquire outstanding SPRs which were associated with the claims file in February 2020. In April 2021 the Board remanded the Veteran's claim to acquire a VA medical opinion as to the nature and etiology of his colon disorder. In August 2021, the Veteran underwent VA intestinal surgery and conditions examination reports which included reviews of the claims file, a recitation of complaints and medical history, and examination results. The Veteran subjectively reported that when in Vietnam he ate vegetables sprayed with Agent Orange, had intermittent episodes of diarrhea, constipation, bowel discomfort, and since that time has had "fluctuations in constipation with alternating diarrhea with stomach pain, cramping, and bloating." Ultimately, the examiner determined his colon disorder was less likely than not the result of active service or in-service herbicide agent exposure, specifically opining: The Veteran's claimed condition of colon disability while on active duty related to exposure to herbicides cannot be supported by medical literature. Efforts to locate his medical records from during his active duty time have been exhausted, but from 1975 until 1992 there are annual flight physicals since he was a pilot for the ARNG. None of these flight physicals mention abdominal complaints or problems. Years after deployment he was diagnosed with Diverticulosis (1994) and Cholecystitis (2003), there is no evidence to support any connection to exposure to herbicides as a cause for these disorders. Veteran continues to have known diverticular disease present in his colon, but abdominal symptoms are controlled with OTC pro and prebiotics. The most recent Vietnam Veterans and Agent Orange Exposure report from 2018 states the following conclusion: "On the basis of the evidence reviewed here and in previous VAO reports, the committee concludes that there is inadequate or insufficient evidence to determine whether there is an association between exposure to the COIs and gastrointestinal and digestive diseases." Even without considering exposure to an herbicide, Diverticulosis and Cholecystitis were diagnosed 19+ years after leaving active duty service with no reported complaints or treatment in between those times. Veteran had complaints of abdominal pain and changes to his bowel movements while deployed, that were acute and could have many different likely causes. After review of the claims file in conjunction with the applicable laws and regulations, the Board finds the preponderance of the evidence is against finding the Veteran's colon disorder was incurred in or the result of active duty service or due to in-service herbicide agent exposure. The Board acknowledges the Veteran's claim that he has experienced his colon disorders ever since service and is thus a chronic disability. However, the Federal Circuit has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a) and Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As such, since his colon disorder which has not been shown to involve a malignancy is not listed under 38 C.F.R. § 3.309(a), the Veteran's colon disorder is not subject to presumptive service connection for a chronic disability. As to herbicide agent exposure, the Board acknowledges the Veteran served in the Republic of Vietnam. See SPRs. Thus, the Veteran is entitled to the presumption of exposure to herbicide agents. See 38 C.F.R. § 3.307(a). However, colon disorders are not among the diseases presumed to be associated with in-service Agent Orange and herbicide exposure. See 38 C.F.R. § 3.307(a)(6), 3.309(e). However, when service connection cannot be granted on a presumptive basis, the Veteran may still establish service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). As to direct service connection, the Board is aware it has a heightened duty to explain its findings and conclusions since the Veteran's STRs from his period of active service are missing and presumed lost. See O'Hare, 1 Vet. App. 365. Furthermore, his DD-214 reflects he was awarded the Air Medal with "V "Device and Vietnam Cross of Gallantry with Palm; and is therefore entitled to the combat presumption under which the Board accepts as credible his reports of in-service bowel issues during his active service. See 38 U.S.C. § 1154(b). As such, the first element of service connection, i.e. an in-service incident or injury, is fulfilled. See Shedden, 381 F.3d at 1167. As to the second element, i.e. a current disability, the Veteran is currently diagnosed with multiple colon disorders (See August 2021 VA Examination). As such, the second element of service connection, is fulfilled. Id. However, the evidence of record does not support the finding of the third element required for service connection; specifically, a medical nexus between his current disability and his active duty service. Here, even granting the Veteran the combat presumption that he suffered from in-service intestinal issues, the evidence of record contains 27 instances over 16 years where he denied experiencing any issues and was cleared of any issues. Furthermore, the August 2021 VA examiner determined that any complaints of in-service bowel issues were acute and transitory and likely due to other causes; and specifically opined that "there is no evidence to support any connection to exposure to herbicides as a cause for these disorders." Moreover, he wasn't diagnosed with any intestinal disability until 2003 and 2004; more than 10 years after his reserve service and 28 years after active service. Indeed, it is this length of time and continual denial of issues that was a key factor in the VA examiner determining his colon disorder was less likely than not the result of active service. Additionally, the evidence of record is devoid of any competent and credible medical evidence or opinion to counter the August 2021 VA opinion. Indeed, the only evidence the Veteran's colon disorders are related to in-service herbicide agent exposure or to active duty service are the Veteran's own statements. Lay evidence may be competent to establish medical etiology or nexus (Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009)), but VA can give lay evidence whatever weight to which it concludes the evidence is entitled. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). In this case, although the Veteran may believe his colon disorder is related to herbicide agent exposure or to active duty, he is not competent to make such determinations which are medical in nature. See Jandreau, 492 F.3d at 1372. Such opinions require specialized training and knowledge and are matters which are not capable of lay observation. As such, the Board finds the Veteran's contentions are of little probative value and the August 2021 VA opinion being supported by the evidence of record, medical rationale, and sound service connection principles is thus of greater probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Considering the above, the Board finds the preponderance of the evidence is against finding the Veteran's colon disorder was the result of in-service herbicide agent exposure or is related to active service in anyway. Hence the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Accordingly, the Veteran's claims of entitlement to service connection for a colon disorder to include as due to herbicide agent exposure is denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.