Citation Nr: 21010512 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-28 983 DATE: February 25, 2021 ORDER Service connection for colon cancer, to include as due to herbicide exposure, is denied. FINDING OF FACT Colon cancer was not first shown in service or within the first post-service year; and it is not otherwise shown to be related to service. CONCLUSION OF LAW The criteria for service connection for colon cancer have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1969 to November 1970. In August 2019, the Veteran testified at a Video Conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In December 2019, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. Service Connection 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 service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) 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) 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); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 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). Where a veteran served for at least 90 days during a period of war and manifests a malignant tumor to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In addition, VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307 (a)(6) are met. See 38 C.F.R. § 3.309 (e). The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. In addition, a veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ, in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such serve to an herbicide agent, unless there is affirmative evidence to establish that a veteran was not exposed to any such agent during that service. See also 38 C.F.R. § 3.814(c)(2). 38 C.F.R. § 3.307 (a)(6)(iv). In order to benefit from the presumption of service connection for diseases associated with herbicide exposure, a veteran must have one of the diseases enumerated in section 3.309(e). Colon cancer is not among the diseases specified in 38 U.S.C. § 1116(a). When a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), (citing Gilbert, 1 Vet. App. At 54). Service connection for colon cancer, to include as due to herbicide exposure The Veteran contends that his colon cancer is related to herbicide exposure during active duty. Because the Veteran served in Vietnam, his exposure to herbicides is presumed. 38 C.F.R. § 3.307(a)(6)(iii). However, VA regulations do not provide for presumptive service connection for colon cancer as a result of exposure to herbicides. Service treatment records show no complaint or manifestation of colon cancer during active duty or at discharge. Post-service private treatment records show that the Veteran was diagnosed with colon cancer in August 2016, many years after his discharge. The medical evidence shows that the Veteran had been having periodic screening colonoscopies. In 2013 it was normal. In August 2016, a suspicious lesion was found in the right colon. Pathology returned positive for adenocarcinoma of the colon; stage II-III. He underwent right hemicolectomy in Oct 2016. He had complications of a perforated bowel and abscess formation, which kept him in the hospital for about 2 months. He did not require any radiation or chemotherapy. Serial check-ups since then have not shown any recurrence or metastasis of the cancer. The evidence does not indicate that the colon cancer or its treatment is due to any event or incident of the Veteran's period of active duty. There is no evidence otherwise linking the current disability to service. In this regard, in accordance with the Board’s October 2019 remand directives, the Veteran was afforded a VA examination and medical opinion in January 2020. The examiner opined that the claimed colon cancer was less likely than not incurred in or caused by the claimed in-service injury, event or illness. In essence, the examiner found that, as the Veteran was not diagnosed with colon cancer for approximately 45 years after discharge, and the current scientific research, including the latest update of the "Veterans and Agent Orange" (2018), does not indicate that colon cancer is related to herbicide exposure, there is no clear medical nexus to service. The examiner also noted that the known currently medically accepted risk factors for colon cancer that the Veteran has include positive family history, smoking history, obesity, being male, increasing age, lack of exercise (which the veteran had much of his life) and diet. In addition, the examiner noted that review of other recent literature does not support any change in the current VA policy that colon cancer is significantly, not scientifically supported to be a presumptive condition of Agent Orange exposure. Therefore, the examiner concluded that, in this Veteran’s case, the most likely causes of his colon cancer are simply the same risk factors as the vast number of other unfortunate individuals who are diagnosed with colon cancer. There is no contrary medical opinion of record. Moreover, there is no other evidence, VA or private, indicating that the current colon cancer may be related to service. There is no evidence of record, besides the Veteran's lay statements, otherwise linking his colon cancer to service. The Veteran has not specifically reported a continuity of symptomatology beginning in service and there is no other evidence, VA or private, which indicates that the Veteran's colon cancer or treatment for such may be related to his active military service. Accordingly, the Board finds that service connection is not warranted on a direct or presumptive basis. The Board acknowledges the Veteran's assertion that his colon cancer is due to herbicide exposure in service. The Veteran is competent to report the observable symptoms of a disability, and in certain situations a lay person may be competent to establish the etiology of a disability. However, the Board finds that in the present case, the Veteran is not competent to provide a nexus between his colon cancer and his active service or events therein, as it would require medical expertise to say that the colon cancer, identified after service, is the result of an in-service disease or injury. The Veteran, as a layperson, is not qualified to render an opinion concerning the medical cause of his colon cancer. 38 C.F.R. § 3.159 (a)(1), (2) (2019). There is no competent evidence relating the Veteran's colon cancer to any event in his active service. Absent such evidence, the Veteran's claim must be denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. (Continued on the next page)   For the reasons and basis stated above, the Board finds that service connection for colon cancer, is not warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Yankey, 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.