Citation Nr: 21077289
Decision Date: 12/29/21	Archive Date: 12/29/21

DOCKET NO. 13-09 311
DATE: December 29, 2021

ORDER

Entitlement to service connection for colon cancer, including as due to herbicide exposure, is denied.

Entitlement to service connection for a psychiatric disorder is denied.

Entitlement to service connection for liver cancer, secondary to service-connected colon cancer, is denied.

Entitlement to service connection for the cause of the Veteran's death is denied.

FINDINGS OF FACT

1. The preponderance of the evidence is against finding that the Veteran's colon cancer disorder was incurred in or related to service.

2. The preponderance of the evidence is against finding that the Veteran's psychiatric disorder was incurred in or related to service.

3. The Veteran's liver cancer was a metastasis from his nonservice-connected colon cancer.

4. The Veteran died in April 2010 with the death certificate indicating that the immediate cause of death was metastatic colon cancer, which is not service-connected.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for colon cancer, including as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310.

2. The criteria for entitlement to service connection for a psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.

3. The criteria for entitlement to service connection for liver cancer, secondary to service-connected colon cancer, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

4. The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.312(a).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from May 1962 to May 1965 and from February 1969 to April 1972. Unfortunately, the Veteran passed away in April 2010, and the Appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2008, April 2010, and September 2011 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The matters were previously before the Board in June 2017, February 2021, and June 2021 but were remanded for additional development. The Veteran is entitled to substantial compliance with all previous remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). As to the issues regarding the Veteran's right foot disability, the Board concludes that the Agency of Original Jurisdiction (AOJ) has supplied substantial compliance to the Veteran.

In May 2011, the Appellant submitted a request to be substituted in the Veteran's pending appeals. In a May 2017 letter, the RO acknowledged the Appellant as an eligible substitute claimant. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010.

In her March 2013 substantive appeal, the Appellant requested a videoconference hearing before the Board. However, in August 2016, she withdrew her request. 38 C.F.R. § 20.704(e).

Neither the Appellant nor her representative has raised any other issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Service Connection

Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. §§ 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). 

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 service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). There is a one-year presumption for calculi of the kidneys, malignant tumors, cardio-vascular renal disease (including hypertension), and other organic diseases of the nervous system. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. In this case, the Veteran did not manifest any of the claimed disabilities within one year of separation from service and, as such, no further consideration of the foregoing is warranted.

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). 

A "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Such diseases include ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina). 38 C.F.R. § 3.309(e).

A claimant is not precluded from establishing service connection for a disease averred to be related to herbicide exposure, as long as there is proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). 

Service connection is also warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. 38 C.F.R. § 3.310(b). 

Section 8052 of the Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388- 91, prohibits payment of compensation for a disability that is a result of a Veteran's alcohol or drug abuse. Section 8052 additionally amended 38 U.S.C. § 105(a) to provide that an injury or disease incurred during active service will not be deemed to have been incurred in line of duty if the injury or disease was a result of the person's willful misconduct, including abuse of alcohol or drugs. 38 U.S.C. § 105; 38 C.F.R. §§ 3.1(m), 3.301(d). However, the United States Court of Appeals for the Federal Circuit has held that there can be service connection for compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a service-connected disability. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Veterans may only recover if they can "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder." Id. at 1381.

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); 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). 

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469.  Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007).  Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. 

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 

1. Entitlement to service connection for colon cancer, including as due to herbicide exposure.

The Appellant contends that the Veteran's colon cancer was related to his service.

Colon cancer is not listed in 38 C.F.R. § 3.309(e) and thus not eligible for presumptive service connection due to herbicide exposure. The Veteran's colon cancer is eligible for direct service connection. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994).

The Board finds the first element of direct service connection is met as the evidence of record shows the Veteran was diagnosed with colon cancer. See January 2008 VA treatment records. The Board finds the second element of direct service connection is met as the Veteran served in the Republic of Vietnam from April 1969 to April 1970, and as such herbicide exposure is presumed. See DD 214; 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307 (a)(6)(iii). The question that remains before the Board is whether there is a causal relationship between the Veteran's service and current disability.

The only evidence of record addressing a nexus between the Veteran's herbicide exposure and his colon cancer is a March 2021 VA examination. The examiner opined that it was less likely than not that the Veteran's colon cancer was incurred in or caused by the Veteran's service. In the rationale, the clinician noted that there were no mentions of intestinal problems or cancer during or after service until 2008 when the Veteran was diagnosed with colon cancer. A review of risk factors for colon cancer led the clinician to find that the Veteran's previous history of cigarette smoking, and heavy alcohol consumption represented his most significant risk factor for developing colon cancer. The Board finds this opinion, competent, credible, and weighty. As such, and with no other nexus evidence of record, the Board finds that the criteria for service connection for colon cancer have not been met.

2. Entitlement to service connection for a psychiatric disorder.

The Appellant contends that the Veteran's psychiatric disorder was related to his service.

The Board notes that secondary service connection is only available when the Veteran has a service-connected disability. With the above finding that the Veteran's colon cancer is not service connected, the Veteran has no other service-connected disabilities and is thus ineligible for secondary service connection to colon cancer.

The Veteran's file was afforded several VA examinations regarding his psychiatric disorders. The first examination occurred in December 2012. While the examiner stated that the Veteran did not meet the full criteria for posttraumatic stress disorder (PTSD) at the time of his passing in April 2010, the Veteran was diagnosed with Major Depressive Disorder (MDD). The clinician opined that the Veteran's MDD was less likely than not related to his service as it was more likely than not that the Veteran's depression and alcohol dependence pre-dated his service.

An additional VA opinion was provided in August 2020. The Veteran was diagnosed with MDD and alcohol use disorder. The examiner opined it was less likely than not that the Veteran's MDD or alcohol use disorder was directly related to or developed within one year of separation from service. In support of that finding, the examiner highlighted medical records indicating symptoms of MDD and alcohol use disorder prior to entering active duty. The clinician also opined that the Veteran's MDD may have been exacerbated during his service and is related to service via aggravation of a pre-existing condition.

A November 2020 VA addendum clarified the August 2020 opinion. The clinician opined that the Veteran's MDD was less than 50 percent likely related to his service or psychosis within a year of separation; the Veteran's alcohol use disorder was at least as likely as not related to his service; and the Veteran's adjustment disorder with anxiety was less than 50 percent likely related to his service or related to psychosis within a year of separation.

In a June 2021 VA medical opinion, the examiner diagnosed the Veteran with unspecified depressive disorder and alcohol use disorder, mild. The clinician opined that the Veteran's depression and alcohol use disorder were at least as likely as not incurred in or caused by service. In support of this finding, the clinician noted statements from the Veteran's spouse and buddy statements demonstrating a change in his mental health and alcohol use since service. An addendum to the June 2021 medical opinion was provided in August 2021, as the RO determined the June 2021 medical opinion was without sufficient explanation and thus conclusory. The August 2021 addendum opinion reiterated the finding that the Veteran's depression and alcohol use disorder was at least as likely as not incurred in or caused by service. This finding was based on statements from friends and the spouse of the Veteran noting a change in the Veteran's mental health since service. Additionally, the clinician stated the Veteran's mental health symptoms started during his military service but did not provide specific evidence substantiating that determination.

Direct service connection is established with 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). 

The Board finds the first element of Holton met as the evidence of record shows the Veteran diagnosed with MDD, alcohol use disorder, adjustment disorder with anxiety, and unspecified depressive disorder. See December 2012 VA medical opinion, August 2020 VA medical opinion, June 2021 VA medical opinion. The Board finds the second element of Holton is met as the Veteran alleged the onset of his symptoms began while in service. See May 2007 statement in support of claim. The question that remains before the Board is whether there is a causal relationship between the Veteran's service and current disability.

As there are several opinions in the record, the Board will analyze their respective competency, credibility, and weight in chronological order. As to the December 2012 VA medical opinion, the Board finds it competent and credible but lacking in weight. The examiner concluded that the Veteran's MDD was less likely than not due to his service and more likely than not due to his childhood. Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. §§ 1111; 38 C.F.R. § 3.304(b). Service treatment records do not note any mental health conditions in the Veteran's entrance examination. See May 1962 enlistment examination. As such, the Veteran is presumed sound and the December 2012 VA opinion is inapplicable.

As to the August 2020 VA medical opinion, the Board also finds the opinion competent and credible, but lacking weight. It stated that, as the Veteran's depression and alcohol abuse existed prior to service, the Veteran's MDD or alcohol use disorder were less likely than not related to service. The Veteran was sound upon entry into active service, without any noted pre-existing mental health issues, thus making the August 2020 opinion based upon pre-existence of the Veteran's disability inapplicable.

As to the November 2020 VA medical opinion, the Board finds the examination competent, credible, and weighty. The examiner found the Veteran's MDD was less than 50 percent likely related to service or to psychosis within a year after separation because the records show a nexus between the Veteran's depression and his medical problems after service, including a cancer diagnosis. The Veteran's alcohol use disorder was found to be at least as likely as not related to the Veteran's service because the Veteran's spouse reported the onset of alcohol abuse during the Veteran's service in 1970. The Veteran's adjustment disorder with anxiety was found to be less than 50 percent likely related to service or psychosis within a year after service, instead finding the onset of the disability to be the Veteran's emotional concerns about starting chemotherapy after service. The Board notes that finding a nexus between the Veteran's alcohol use disorder and his service is insufficient for service connection because an injury or disease incurred during active service will not be deemed to have been incurred in the line of duty if the injury or disease was a result of the person's own willful misconduct. 38 U.S.C. § 105; 38 C.F.R. § 3.1(m).

As to the June 2021 VA medical opinion, the Board finds the examination competent and credible, but lacking weight. The examination found that the Veteran's unspecified depressive disorder and alcohol use disorder were at least as likely as not due to service because the Veteran's spouse and buddy statements indicated a change in the Veteran's mental health and alcohol use after service. The Board finds this opinion of little weight as it does not explain how evidence of a change in behavior after service indicates an onset within service. The August 2021 addendum opinion was requested to have the examiner explain this finding. The only addition provided to the opinion was the sentence "these symptoms started during military service." Again, no specific evidence or explanation was provided for that conclusion. As such, the Board also finds the August 2021 addendum opinion of little weight.

As illustrated above, the Board finds the November 2020 VA medical opinion to be of greater probative weight than the other medical opinion of record. The November 2020 opinion provides findings that do not conflict with the Veteran's presumption of soundness and offers sufficient evidence to substantiate the opinions. The remaining opinions either contradict the presumption of soundness, find service connection of a disease that was a result of a person's own willful misconduct, or offer little evidence to substantiate the finding.

In sum, the Board finds that the criteria for service connection for a psychiatric disorder have not been met.

3. Entitlement to service connection for liver cancer, secondary to service-connected colon cancer.

The Appellant contends that the Veteran's liver cancer was related to his service.

The Veteran's medical records indicate the Veteran's liver cancer was a metastasis of his colon cancer. See March 2009 VA treatment record, March 2010 VA treatment record. Secondary service connection is only available when the Veteran has a service-connected disability. With the above finding that the Veteran's colon cancer is not service-connected, the Veteran liver cancer in ineligible to be secondarily service connected to his colon cancer.

With respect to direct service connection, there is no evidence of record that connects the Veteran's diagnosed liver cancer with a disease or injury in service.  As such, the claim fails to meet the requirements for entitlement to service connection on a direct basis.  See Combee, supra.

4. Entitlement to service connection for the cause of the Veteran's death

Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5(a)(1). A veteran's death will be considered as being due to a service-connected disability when the evidence establishes that the service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d).

The Appellant contends that the Veteran's cause of death was related to his service.

As mentioned above, a veteran's death will be considered as being due to a service-connected disability when the evidence establishes that the service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). The record contains the Veteran's death certificate listing his immediate cause of death as metastatic colon cancer. As the Veteran's colon cancer has been found not service-connected, the Board finds that the criteria for service connection for the cause of the Veteran's death has not been met. 

 

K.A. KENNERLY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Lee Feldman, Associate 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.