Citation Nr: 21076213 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 14-38 162 DATE: December 22, 2021 ORDER Entitlement to service connection for colon cancer is granted. REMANDED Entitlement to nonservice-connected pension benefits is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his colon cancer is at least as likely as not related to in-service herbicide agent exposure. CONCLUSION OF LAW The criteria for service connection for colon cancer are met. 38 U.S.C. §§ 1110, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1970 to December 1973, with additional service in the Reserves. These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision which denied service connection for a skin disability and colon cancer and denied entitlement to nonservice-connected pension benefits. In October 2020, the Board remanded these matters for further development, to include obtaining VA examinations and medical opinions and information on the Veteran's income and medical expenses. In an October 2021 rating decision, VA granted service connection for a skin disability. As the grant of service connection represents a maximum grant of the benefit sought on appeal, the issue is no longer before the Board. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of a "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With a chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. A veteran who, during active military, naval or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during his or her service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C.§ 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). 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). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Entitlement to service connection for colon cancer. The Veteran contends that service connection is warranted for colon cancer. Specifically, he contends that his colon cancer is due to in-service herbicide agent exposure while serving in Vietnam. The Veteran's service records reflect that he served in the Republic of Vietnam in 1971, during the Vietnam War era; therefore, he is presumed to have been exposed to an herbicide agent during that service. 38 U.S.C. § 1116, 38 C.F.R. § 3.307(a)(6)(iii). However, colon cancer is not a condition which has been deemed associated with herbicide exposure under current VA law. Therefore, service connection cannot be awarded under the laws governing presumptive service connection based on exposure to herbicides. 38 U.S.C. § 1116(f); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). Although presumptive service connection based on herbicide agent exposure has not been satisfied, service connection for colon cancer may still be granted on a direct basis. The Board concludes that the Veteran's colon cancer is related to in-service herbicide agent exposure. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran's service treatment records are silent for complaints of, treatment for, or diagnosis of colon cancer. Post-service treatment records reflect that the Veteran was diagnosed with colon adenocarcinoma in October 2010. He denied a family history of such. A May 2021 VA examination report notes a diagnosis of colon cancer in 2010. After examining the Veteran and reviewing the Veteran's electronic claims file, the examiner issued an August 2021 opinion in which the examiner indicated that evidence in the electronic claims file supported that the Veteran's colon cancer was caused by herbicide agent exposure and that it was at least as likely as not that the Veteran's colon cancer was caused by in-service herbicide agent exposure. In an October 2021 addendum opinion, the examiner noted that the Veteran was exposed to herbicides during service and had developed other conditions due to herbicide agent exposure. The examiner indicated that the Veteran's medical record confirmed and was consistent with colon cancer due to herbicide agent exposure. Thus, the examiner again opined that the Veteran's colon cancer was at least as likely as not related to in-service herbicide agent exposure. The Board finds examiner's August and October 2021 opinions probative, as they are based on an in-person examination, thorough review of the claims file and medical records, and medical expertise. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges that there may be deficiencies in the VA medical opinions but resolves reasonable doubt in the Veteran's favor and notes that there are no opinions of record to the contrary. At this point, the Board declines to remand for an additional opinion as such would resemble a fishing expedition for negative evidence, which, in view of the available medical evidence, is not necessary. Indeed, obtaining such additional evidentiary development in this instance would only result in additional delay with no benefit to the Veteran. Sabonis v. Brown, 6 Vet. App. 426 (1994). Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current colon cancer is related to in-service herbicide agent exposure. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for colon cancer is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to nonservice-connected pension benefits is remanded. The Veteran contends that he is entitled to nonservice-connected pension benefits. In June 2013, VA denied nonservice-connected pension benefits as the Veteran did not meet the basic eligibility requirements. Subsequent readjudication during the appeal period continued to deny nonservice-connected pension benefits on the basis of excessive income. In October 2020, the Board remanded the matter so that information on the Veteran's income and medical expenses could be obtained for each year since July 2012 to the present. In November 2020 and December 2020 letters, VA requested that the Veteran provide this information. To date, no response has been received. The Board finds that remand is warranted for an additional attempt to obtain this information. However, the Board emphasizes that VA's duty to assist is a two-way street and if the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting the duty to assist is a two-way street that requires a claimant's active participation in a claim for VA benefits). The matter is REMANDED for the following actions: 1. For each year from July 2012 to the present, ask the Veteran to provide information as to his income and any unreimbursed medical expenses, including insurance premiums and doctor/prescription copays, that he and his spouse have paid from July 2012 to the present, that may offset the amount of his countable income. 2. After completing the above, and any other development as may be indicated, the Veteran's claim should be readjudicated based on the entirety of the evidence. (Continued on next page) If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, Counsel 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.