Citation Nr: 21014544 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 19-05 498 DATE: March 12, 2021 ORDER Service connection for colon cancer, including as the result of asbestos exposure, is granted. FINDING OF FACT Resolving all doubt in favor of the Veteran, currently diagnosed colon cancer is at least as likely as not related to in-service asbestos exposure. CONCLUSION OF LAW The criteria for service connection of colon cancer have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Navy on active service from January 1958 to January 1962. His military occupational specialty was a machinist mate (MM2). and he served on board the USS STORMES (DD-780) from August 1958 to November 1960, and on the USS SIERRA (AD-18) from November 1960 to January 1962. The claim comes before the Board of Veterans Appeals (Board) from an October 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In a March 2019 Remand, the Board acknowledged that there was a current diagnosis of colon cancer, and that the Veteran was exposed to asbestos in service; he is in fact service-connected for asbestosis. The remaining question involved a nexus between the current disability and the in-service injury. A December 2018 VA examination and opinion was inadequate for the purpose of adjudicating the Veteran’s claim. In finding that the Veteran’s colon cancer was less likely due to asbestos exposure, the 2018 VA examiner referenced medical literature from the American Cancer Society and the Mayo Clinic. The VA examiner explained that medical literature acknowledged the potential role of asbestos exposure in causing colon cancer, but the link in most cases was not clear. However, the VA examiner did not explain why, in the Veteran’s specific case, the link between asbestos exposure and colon cancer did not or was less likely to exist. An addendum opinion was secured from an oncologist in December 2020, at the Board’s direction. The 2020 VA examiner offered a negative opinion, but based such on a lack of “convincing” evidence of a link between colon cancer and asbestos. He cited to pages of an unspecified document. He also noted that while some studies showed little evidence of a link, while others “suggest a definitive causer and effect.” It appears that the examiner relied on his own opinion that the Veteran’s asbestos exposure in service was minimal, and that the diagnosis of asbestosis was questionable, rather than complying with the law of the case and established factual findings. Following two examinations, one of which is by an oncologist with specialized knowledge applicable to the claim, the record reflects two opinions asserting that asbestos exposure can potentially play a role in the development of colon cancer. Neither provides an adequate rationale for then finding a nexus does not exist. In fact, the opinion by the oncologist in December 2020 appears to reach a negative conclusion despite the citation of positive, or at least equivocal, evidence. Accordingly, the Board finds that in light of the uncontroverted statements of the examiners that there is no clear conclusion as to the role of asbestos in the etiology of colon cancer, and the reference to “definitive” positive studies, the evidence in this case in in equipoise. Resolving all doubt in favor of the Veteran, service connection is warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bakke, Lila J. 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.