Citation Nr: 21007094 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 15-15 461 DATE: February 8, 2021 ORDER Entitlement to service connection for colon polyps to include as due to herbicide exposure is denied. REMANDED Entitlement to service connection for hypertension to include as due to herbicide exposure and/or service-connected disabilities is remanded. Entitlement to service connection for stroke to include as due to herbicide exposure and/or service-connected disabilities is remanded. Entitlement to special monthly compensation (SMC) based on housebound is remanded. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s colon polyps is related to active duty service to include as due to herbicide exposure. CONCLUSION OF LAW The criteria for service connection for colon polyps have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active duty service with the Navy from October 1972 to September 1974. The Veteran died in August 2016 while the above claim was pending; the Veteran’s surviving spouse, the appellant, was properly substituted as the claimant for his pending claim. This matter is on appeal from a December 2011 rating decision. The Veteran testified in February 2014 before a Decision Review Officer (DRO). The appellant was afforded a February 2020 hearing before the undersigned Judge. A transcript of the hearings has been associated with the claims record. The Board remanded this appeal in April 2020 for further development. Service Connection 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 may also be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (b). A veteran who, during active 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 a veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6), (d); 3.309(e). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309 (e), to include early-onset peripheral neuropathy, if manifested to a compensable degree within one year of the last date a veteran was exposed to an herbicide agent during active service. 38 U.S.C, § 1116 (a)(1); 38 C.F.R. § 3.307 (a)(6)(ii). The list of diseases associated with exposure to certain herbicide agents is as follows: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin’s disease, 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), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309 (e). A veteran may also establish service connection based on exposure to Agent Orange with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). That is, a veteran may still establish service connection for the disease by (1) showing that the disease actually occurred in service; or (2) by submitting evidence of a nexus between the disease and his exposure to herbicides during military service. Combee, 34 F.3d at 1043-1044. The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. 38 U.S.C. § 5107 (b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Colon polyps The appellant asserts that the Veteran’s colon polyps were related to his active duty service to include as due to herbicide exposure. Review of the medical treatment record shows treatment for colon polyps. In August 1997 the treating provider assessed the Veteran with adenomatous colonic polyp and later colonoscopy tests showed findings of rectal polyps or diminutive hyperplastic polyps. As such, the Board finds the Veteran had a current disability. Review of the Veteran’s service treatment records do not show any complaints, treatment or diagnosis for colon polyps. As noted in an April 2020 Board decision, the Board found an April 2020 Herbicide Exposure Verification Memorandum conceded herbicide exposure to the Veteran. The Veteran’s colon polyps are not on the presumptive lists for exposure to herbicide. However, the absence of a disease from the presumptive list does not preclude a Veteran from otherwise proving that his disability resulted from exposure to herbicides. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Service connection may still be granted on a direct basis. Review of the medical treatment record shows in June 1997 the Veteran was seen for intermittent abdominal pain for the past 3 years with increased pain in the past month. The Veteran noted that his father died at an early age due to colon cancer. The Veteran was assessed with intermittent but escalating abdominal pain. In August 1997 following review of colonoscopy, the treating provider noted that a singular tubular adenoma polyp was removed. The provider also noted there was marginal colonic preparation and therefore difficult to review the base of cecum. The provider assessed the Veteran with adenomatous colonic polyp and request a followup examination. In September 1998, a colonoscopy noted findings of diminutive rectal polyps and a provider gave an impression of tubulovillous adenoma polyps. In December 2009 the treating provider noted that review of the Veteran’s private preoperative history and physical report indicated the Veteran’s colonoscopy revealed diminutive hyperplastic polyps. At the February 2020 hearing, the appellant testified that whenever the Veteran had a colonoscopy, his colon polyps would be removed. The Board remanded this appeal in April 2020 for a medical opinion. In an October 2020 opinion, the VA examiner found it was less likely than not that the Veteran’s colon polyps were related to his active duty service to include herbicide exposure. The examiner noted that review of the Veteran’s STRs were silent for any symptoms, medical care, or diagnosis for colon polyps. The examiner next noted that a June 1997 medical record showed a diagnosis for adenomatous polyps in the cecum and sigmoid colon and the Veteran reported a family history of colon polyps and cancer. The examiner stated: “Adenomas are the most prevalent neoplastic polyps in the colon… [review of medical literature] shows that increasing age is a risk factor for the development of colonic adenomas as well as family polyp history.” The examiner found the preponderance of medical literature including citations to two different studies did not support any association between exposure to herbicides and the development of colonic polyps. As the October 2020 VA examiner provided a detailed review and examination of the Veteran’s claims file, made repeated references to pertinent past records and statements consistent with the evidence of record, the Board finds that the VA examination report and medical records documenting the nature and extent of the Veteran’s claimed colon polyps, to be the most probative evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board acknowledges the Veteran and appellant’s assertions and statements that the Veteran’s colon polyps are related to his active duty service to include herbicide exposure. However, as lay persons, the Veteran and appellant do not have the training or expertise to render a competent opinion which is more probative than the VA examiner’s opinion on this issue, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Here, the VA examiner considered the medical record and the Veteran’s report of symptomatology. The examiner still found that it was unlikely that the Veteran’s diagnoses were related to his active duty service or herbicide exposure. The Board finds that the Veteran’s opinion is outweighed by the competent opinion of the VA examiner. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Based on the above, the Board finds that the competent evidence on record is against a finding of service connection for the Veteran’s colon polyps. The Veteran’s STRs show no complaints, treatments or diagnoses for colon polyps. Review of the Veteran’s medical treatment record shows the Veteran received treatment for colon polyps; however, the earliest documentation of record relating to colon polyps was in 1997, many years after the Veteran’s separation from service. The only probative medical opinion of record made by the October 2020 VA examiner considered the Veteran’s report of symptoms during intervening years but provided reasoned analysis of the case to support their opinion that the Veteran’s colon polyps was not related to or the Veteran’s active duty service to include herbicide exposure. The Board thus finds that the weight of the competent and probative evidence is against a finding of service connection for the Veteran’s colon polyps. In reaching this conclusion, the Board has considered the applicability of the benefit- of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND The Board finds that remand is warranted for additional development. At the February 2020 hearing, it was noted that the Veteran’s diabetes mellitus could contribute to the Veteran’s hypertension; in turn, the hypertension could also contribute to the Veteran’s claimed stroke. The Board remanded this appeal in April 2020 for a medical opinion. In an October 2020 medical opinion, the VA examiner found it was less likely than not that the Veteran’s hypertension was related to his active duty service to include exposure to herbicides. The examiner noted the Veteran’s STRs did not show any complaints, treatments or diagnosis for hypertension. The examiner stated that medical literature found that “numerous genetic and environmental factors” contributed to causing hypertension to include “age, obesity, family history, race…high-sodium diet, excessive alcohol consumption, [and] physical inactivity.” However, the Board notes that while the examiner listed relevant risk factors, the examiner did not provide specific rationale on how the listed risk factors specifically applied to in relation to the facts of the Veteran’s case. The Board noted that the October 2020 examiner also discussed secondary service connection to the Veteran’s service-connected disabilities to include diabetes mellitus, a heart disability, and posttraumatic stress disorder (PTSD) and noted the Veteran with a history of hyperlipidemia, obesity, smoking, and family history risk factors; however there was no discussion on whether this applied or specifically affected his hypertension. As such, the Board finds the opinion inadequate and remand warranted for an addendum opinion. The Board notes that the Veteran’s issues of entitlement to service connection for a stroke as well as entitlement to SMC based on housebound and aid and attendance are inextricably intertwined with the Veteran’s claim for entitlement to service connection for hypertension. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). Therefore, the Board finds that these issues must also be remanded. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated and outstanding treatment records. 2. After all outstanding records have been associated with the claims file, return the claims file to the VA examiner who provided the October 2020 medical opinion on the Veteran’s hypertension. The record and a copy of this remand must be made available to the examiner. The VA examiner should opine as to the following: (a.) Is it as least as likely as not (a 50 percent or greater probability) the Veteran’s hypertension arose in service or is etiologically related to his military service to include herbicide exposure? (b.) Is it at least as likely as not (50 percent probability or more) that the Veteran’s hypertension is aggravated by his service-connected disabilities? “Aggravation” is defined as any worsening beyond the natural progression of the disability. The examiner should establish a baseline level of disability prior to aggravation. (c.) The opinions should include a discussion of any pertinent studies or medical literature, as well as pertinent evidence on file to include the Veteran and appellant testimony as well as the November 2018, the National Academies of Science, Engineering and Medicine issued Veterans and Agent Orange: Update 11 (2018), discussing whether there is an association between exposure to an herbicide agent and hypertension. (d.) The examiner is also advised that the Veteran is competent to report in-service events and treatment, and his symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. (e.) The examiner should provide a complete rationale for any opinions provided with discussion of the facts particular to the Veteran’s case. If the examiner is unable to provide any opinion request, then the examiner should state so and why. (f.) If the VA examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner’s medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. A clearly stated rationale for any opinion offered should be provided. 3. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.