Citation Nr: 21025075 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-34 481 DATE: April 27, 2021 ORDER Entitlement to service connection for colon cancer, to include as due to exposure to tactical herbicide agents, is denied. FINDING OF FACT The preponderance of the evidence is against finding that colon cancer began during active service, or is otherwise related to an in-service injury or disease, to include exposure to tactical herbicide agents. CONCLUSION OF LAW The criteria for entitlement to service connection for colon cancer, to include as due to exposure to tactical herbicide agents, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from February 1967 to February 1971, to include service in the Republic of Vietnam from September 1967 to September 1968. This matter is on appeal before the Board of Veterans’ Appeals from an April 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, this matter was last before the Board at which time it was remanded for further development. That development has been completed. In August 2020, the Veteran submitted a VA Form 21-22a, Appointment of Individual as Claimant’s Representative in favor of J. Michael Woods, Attorney. VA accepted this appointment. However, in September 2020, Attorney Woods filed a Motion to Withdraw as the as the Veteran’s representative. In a February 2021 letter, the Board accepted the withdrawal. Accordingly, the Veteran is now unrepresented. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Entitlement to service connection for colon cancer, to include as due to exposure to tactical herbicide agents. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service” - the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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. The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the Vietnam era. “Service in the Republic of Vietnam” includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). Soft-tissue sarcomas are deemed associated with herbicide exposure under VA law. See 38 C.F.R. § 3.309(e). Soft-tissue sarcomas shall be service connected if a Veteran was exposed to a herbicide agent during active military, naval, or air service, if the requirements of 38 U.S.C. § 1116, 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. The term “soft - tissue sarcoma” includes the following: 1) Adult fibrosarcoma; 2) Dermatofibrosarcoma protuberans; 3) Malignant fibrous histiocytoma; 4) Liposarcoma; 5) Leiomyosarcoma; 6) Epithelioid leiomyosarcoma (malignant leiomyoblastoma); 7) Rhabdomyosarcoma; 8) Ectomesenchymoma; 9) Angiosarcoma (hemangiosarcoma and lymphangiosarcoma); 10) Proliferating (systemic) angioendotheliomatosis; 11) Malignant glomus tumor; 12) Malignant hemangiopericytoma; 13) Synovial sarcoma (malignant synovioma); 14) Malignant giant cell tumor of tendon sheath; 15) Malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas; 16) Malignant mesenchymoma; 17) Malignant granular cell tumor; 18) Alveolar soft part sarcoma; 19) Epithelioid sarcoma; 20) Clear cell sarcoma of tendons and aponeuroses; 21) Extraskeletal Ewing’s sarcoma; 22) Congenital and infantile fibrosarcoma; and 23) Malignant ganglioneuroma. See 38 C.F.R. § 3.309(e), Note 1. Even if the statutory presumptions are inapplicable, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Veterans Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98- 542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In addition, the law provides that, where a veteran served ninety days or more of active military service and malignant tumors become manifest 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 in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. 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. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran asserts that his colon cancer is attributable to service. He particularly claims that his colon cancer is attributable to exposure to Agent Orange, i.e. tactical herbicide agents. Initially, the Board notes that a review of the Veteran’s DD Form 214 and service treatment records confirm that he served in Vietnam. He is therefore presumed to have been exposed to tactical herbicide agents. The service records document an impression of a small non-incarcerated umbilical hernia in October 1967. However, the Veteran denied stomach trouble at that time. In December 1967, the Veteran had a growth on the right side of his chest. A capillary hemangioma, strawberry-shaped, non-cancerous tumor was assessed and excised. In May 1970, the Veteran was diagnosed as having appendicitis. Appendicitis was apparently surgically treated at that time. At separation examination in January 1971, examination of anus and rectum and genitourinary system was normal. Examination of the abdomen and viscera was abnormal only to the extent that there was a 3-inch surgical scar of the right lower quadrant, apparently related to the appendectomy. The Veteran denied a history of frequent indigestion, well as stomach, liver, or intestinal trouble. Following service, the Veteran presented for private medical treatment in October 2015 with complaints of nausea, weight loss and lower abdominal right-sided pain for the past 6 months. A CT scan reflected thickening in the terminal ileum and cecum, and a possible mass was suspected at that time. A colonoscopy in November 2015 resulted in assessment of moderately differentiated adenocarcinoma of the cecum, tubular adenoma of the sigmoid colon, tubular adenoma consistent with advanced adenoma of the sigmoid colon. The Veteran underwent intestinal resection at that time for treatment of the assessed cancers. In December 2019, VA afforded the Veteran VA intestinal surgery and intestinal conditions examinations. The physical examination reports document an assessment of intestinal neoplasm in November 2015 and diagnosis of resection of the large intestine in December 2015, following the assessment of colon cancer. The December 2019 examiner, offered a negative etiological opinion, concluding that the Veteran’s colon cancer was less likely than not incurred in service or caused by the claimed in-service injury, event, or illness. The examiner specifically explained that there is no correlation between exposure to herbicides and the development of colorectal cancer. He explained that the current data did not support an association. Otherwise, the examiner noted environmental and lifestyle risk factors, such as high fat intake, fried foods, frequent use of tobacco and alcohol, obesity, and inactivity. Initially, the Board notes that the presumptive regulations pertaining to service connection for chronic diseases (malignant tumors) and soft tissue sarcomas, i.e. those pertaining to presumptive service connection for exposure to herbicides, do not yield a positive outcome in this case. The Veteran was first diagnosed as having moderately differentiated adenocarcinoma of the cecum, tubular adenoma of the sigmoid colon, tubular adenoma consistent with advanced adenoma of the sigmoid colon in November 2015, well after the first post-service year and there appears no evidence pertaining to metastatic cancer within that period, or any other period. It is thus impossible for the Board to ascertain if this disease manifested to a compensable degree in this time frame. 38 C.F.R. §§ 3.307, 3.309. Moreover, there is no evidence that the Veteran has a soft tissue sarcoma subject to the herbicide regulation. Moderately differentiated adenocarcinoma of the cecum, tubular adenoma of the sigmoid colon, tubular adenoma consistent with advanced adenoma of the sigmoid colon are not listed listed in the applicable regulation as soft-tissue sarcomas. 38 C.F.R. § 3.309(e), Note 1. Accordingly, under the presumptive regulations these claims cannot be granted. Likewise, the Board does not find that the Veteran’s colon cancer was incurred in service. A review of the record discloses no competent and probative evidence attributing this disease to service, and particularly the Veteran’s presumed exposure to herbicides. The service records document no complaints or assessments regarding colon cancer. The only in-service treatment of the abdomen pertains to appendicitis and an umbilical hernia, and there is no indication that colon cancer is related to these assessments. Moreover, the Veteran denied any intestinal trouble at discharge, and it is not until decades after service that colon cancer manifested in 2015. Moreover, the December 2019 VA examiner competently concluded that the Veteran’s colon cancer was less likely than not related to exposure to herbicides. The examiner explained that there is no evidence or data of an association between the Veteran’s colon cancer and exposure to herbicide agents. The examiner, rather, highlighted other specific post-service risk factors, including diet, use of tobacco and alcohol, obesity, and inactivity. The Board sympathizes with the Veteran, but notes that as a lay person, he is not competent to attribute colon cancer to his presumed exposure to herbicides. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2007) (holding that a layperson may provide competent evidence to establish a diagnosis where the lay person is “competent to identify the medical condition”). Accordingly, the preponderance of the evidence is against this claim and it must be denied. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph R. Keselyak, 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.