Citation Nr: 21028297 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 13-34 547 DATE: May 10, 2021 ORDER Service connection for residuals of colon cancer is denied. FINDING OF FACT The most probative evidence is against finding that the Veteran's residuals of colon cancer began during active service or is otherwise related to active service, to include in-service exposure to ionizing radiation. CONCLUSION OF LAW The criteria for service connection for colon cancer residuals are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.311. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1967 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office. In March 2017, the Veteran testified via videoconference hearing before the undersigned Veterans Law Judge (VLJ). The appeal was previously remanded in September 2017 and has since been returned for further appellate review. There has been substantial compliance with the directives of those remands. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall v. West, 11 Vet. App. 268, 271 (1998).); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 1. Service connection for residuals of colon cancer The Veteran contends his colon cancer is related to in-service radiation exposure during active service. Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. § 3.303(d). Service connection for a disability that is claimed to be caused by exposure to ionizing radiation can be established by several alternative methods. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are certain types of cancer (including cancer of the colon) that are presumptively service connected in radiation-exposed veterans, so long as the cancer manifests to a degree of 10 percent or more within one year. 38 U.S.C. § 1112 (c); 38 C.F.R. § 3.309 (d). Second, "radiogenic diseases" (including colon cancer) may be service-connected pursuant to consideration of the factors listed in 38 C.F.R. § 3.311 (e). Third, service connection may be granted under 38 C.F.R. § 3.303 (d) when it is established that the disease diagnosed after discharge is the result of exposure to ionizing radiation during active service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Factual Background The Veteran's primary military occupational specialty (MOS) was Herc Fire Control Mechanic and Radar Equipment Foreman. His June 1970 separation examination report of medical history indicates the worked with radioactive substances as a radar technician. He states that he was exposed to electromagnetic radiation and high-powered radar as a radar mechanic in Chatsworth, California. A February 2004 private treatment record documents the Veteran had a polyp removed which was diagnosed as fragments of villo-adenomatous polyp with focal severe dysplasia/carcinoma in situ, colon clinically rectum. VA treatment record showed continued follow-up for surveillance of his colon. A February 2011 VA treatment record noted a visit for assessment of a cancerous colon polyp and noted the Veteran needed to repeat a colonoscopy scope in three to five years, with annual stool studies. In a November 2013 statement the Veteran wrote that his physician told him colon cancer was primarily a genetic disorder. However, he states that he is the only person, to his knowledge, in his family to have been diagnosed with colon cancer. Also, he wrote that when he got colon cancer he wondered if the exposure to the high energy RF radar scatter could have done something to his colon that over time led to cancer. The Veteran testified during the March 2017 Board hearing that no other person in his family that has ever had colon cancer. He testified he currently has no polyps. In December 2020, the Director of Compensation Service referred the case to the VA Under Secretary for Health for preparation of a dose estimate and opinion as to "whether it is likely, unlikely, or as likely as not" that the Veteran's colon cancer resulted from exposure to radiation in service. In January 2021, a response was provided by a health physicist examiner. The examiner noted review of the Veteran's report of exposure and of the Veteran's service treatment records. The physicist noted the Veteran was not monitored by the US Army for occupational exposure to ionizing radiation. He was not in a duty position where monitoring was required. The radiation dose as provided by the Army is 0.00 rem. For this reason, he assigned the ionizing radiation dose as 0.00 rem. The examiner further noted the Veteran was approximately 19 years old at the time of initial exposure to ionizing radiation, that he is a Caucasian male with a history of smoking. Also, medical records showed the Veteran had a poly a polyp removed which was diagnosed as fragments of villo-adenomatous polyp with focal severe dysplasia/carcinoma in situ, colon, clinically rectum in February 2004, approximately 36 years after exposure to ionizing radiation. The physicist opined since the Veterans' estimated lifetime total radiation dose (0,00) did not exceed 100mSV (10 rem) above natural background; therefore, it is unlikely that colon cancer was caused by exposure to ionizing radiation and/or ionizing radiation (RFR) during military service. In a subsequent January 2021 VA Advisory Opinion Radiation Review Under C.F.R. § 3.311 the Executive Director Compensation Service opined based on the scientific evidence referenced in the VA memorandum there is no reasonable possibility that colon cancer can be attributed to radiation exposure during military service. Analysis The Board finds there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303 (d). The Veteran has a diagnosis of fragments of villo-adenomatous polyp with focal severe dysplasia/carcinoma. Accordingly, the first element of service connection is met. However, the Board finds that the probative medical evidence of record weighs against finding that his disability is more likely than not related to his service, to include exposure to ionizing radiation. The Board finds the examiner's dose estimate constitutes sound scientific and medical evidence. The health physicist is particularly qualified to provide statements as to environmental levels of radiation and as to the way in which radiation interacts with matter and living systems. The physicist's dose estimate therefore is consistent with current medical knowledge and based on the particular facts of the Veteran's case. The Board may therefore rely on that dose estimate and the examiner's opinion to make a decision about the claim. See 38 C.F.R. § 3.311(c); see also Skaar v. Wilkie, 32 Vet. App. 156 (2020). The Board acknowledges the Veteran's lay argument that his colon cancer was caused by his in-service exposure to radiation. Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). A lay person may speak to causality in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See, Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence about more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis in these cases. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Thus, the Board finds the Veteran's lay statements are not competent evidence of a causal relationship between colon cancer and exposure to ionized radiation while in service. [CONTINUED ON NEXT PAGE] In summary, the competent (i.e., in this case, medical) evidence of record is against the claim. Therefore, the Board finds that the preponderance of the evidence is against granting service connection for residuals of colon cancer. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Braxton, 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.