Citation Nr: 21029277 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 11-31 442 DATE: May 13, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran died in April 2009. The death certificate reflects the immediate cause of death as metastatic colon cancer. 2. At the time of his death the Veteran was service-connected for inflammatory bowel syndrome (IBS) and posttraumatic stress disorder (PTSD). 3. A service-connected disability was not the immediate or underlying cause of the Veteran's death, nor was a service-connected disability related to the cause of the Veteran's death. 4. The fatal disease processes were not manifest during service and were not attributable to service. CONCLUSION OF LAW A disability incurred in or aggravated by service did not cause or contribute substantially or materially to the cause of the Veteran's death. 38 U.S.C. §§ 1110, 1310; 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1966 to April 1968, from April 1969 to May 1973, and from August 1979 to June 1988. This matter was previously before the Board in April 2015. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2017 memorandum decision, the Court remanded the case to the Board for action consistent with the decision. The matter was remanded by the Board in August 2017 and again in December 2020. 1. Entitlement to service connection for the cause of the Veteran's death The Veteran died in April 2009. The death certificate lists the cause of death as metastatic colon cancer. No other causes or contributing factors are noted. Under 38 U.S.C. § 1310, when a veteran dies from a service related disability, VA will pay dependency and indemnity compensation (DIC) to the veteran's surviving spouse. To establish that a veteran died from a service related disability, i.e., service connection for the cause of death, the evidence must show that a disability that was incurred in or aggravated by service was either a principal or contributory cause of death. 38 C.F.R. § 3.312. To establish service connection a Veteran must generally 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." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including malignant tumors, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307 (a), 3.309(a). If the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a), see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Section § 3.307(a)(7) provides that a veteran, or former reservist or member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987, shall be presumed to have been exposed during such service to the contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. 38 C.F.R. § 3.307 (a)(7)(iii). Specifically, VA has acknowledged that persons residing or working at the U.S. Marine Corps Base Camp Lejeune from August 1953 through December 1987 were potentially exposed to drinking water contaminated with volatile organic compounds (VOCs). See Veterans Benefits Administration (VBA) Fast Letter 11-03 (last updated January 28, 2013). In the early 1980s, it was discovered that two on-base water-supply systems were contaminated with the VOCs trichloroethylene (TCE), a metal degreaser, and perchloroethylene (PCE), a dry-cleaning agent. Benzene, vinyl chloride, and other VOCs were also found to be contaminating the water-supply systems. See VBA Training Letter 11-03 (Revised) (November 29, 2011) (citing the National Academy of Sciences' National Research Council (NRC)'s report, "Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects.") Until scientific evidence shows otherwise, it will be assumed by VA that any given Veteran-claimant who served at Camp Lejeune was potentially exposed in some manner to the full range of chemicals known to have contaminated the water there between 1957 and 1987. Id. at pg. 6. Fourteen diseases have been placed into the category of limited/suggestive evidence of an association with the contaminating water-supply system at Camp Lejeune. These fourteen diseases are: esophageal cancer, lung cancer, breast cancer, bladder cancer, kidney cancer, adult leukemia, multiple myeloma, myelodysplastic syndromes, renal toxicity, hepatic steatosis, female infertility, miscarriage with exposure during pregnancy, scleroderma, and neurobehavioral effects. Service connection is also warranted for disability which is proximately due to or the result of a service-connected disease or injury. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). The appellant claims that the Veteran's metastatic colon cancer was due to his exposure to Agent Orange during service in Vietnam or to solvent exposure in his duties as a mechanic. She has also raised the issue of association with exposure to contaminated water at Camp Lejeune. Service treatment records do not show treatment or symptoms of colon cancer. In March 1988, the Veteran had a radiologic consult which noted "possible polyps or retained feces." The Veteran had a colonoscopy in 2002 which found no colon cancer or significant polyp. He was diagnosed with colon cancer in 2006. A VA medical opinion was obtained in April 2014. The clinician opined that the Veteran's colon cancer was less likely than not proximately due to or aggravated by the Veteran's service-connected IBS. Likewise, he opined that the colon cancer was less likely than not related to his exposure to herbicide agents. The stated rationales were that medical evidence does not show either a causal or associated (aggravation) link between IBS and colon cancer. The clinician did note that inflammatory bowel disease (IBD) is a risk factor for colon cancer. However, this is distinct from inflammatory bowel syndrome (IBS), which the Veteran had. With regard to herbicide exposure, the clinician stated that colon cancer is not one of the listed diseases associated with such exposure. He stated that he could not provide an opinion regarding direct service connection without resorting to mere speculation, as the March 1988 records indicated possible polyps, and polyps are slow growing and can take a decade or more to present with symptoms. In a February 2017 memorandum decision, the Court of Appeals for Veterans Claims (Court) identified three aspects of the April 2014 medical opinion which rendered it inadequate. Namely, the opinion regarding herbicide exposure was based solely on the National Academy of Sciences (NAS) report finding insufficient evidence to support a categorical association, the opinion failed entirely to address exposure to solvents, and insufficient explanation regarding the potential relationship between the Veteran's colon cancer and the noted possible polyps in service. Another medical opinion was obtained in March 2018. The opinion stated that it was less likely than not that the Veteran's colon cancer was due to herbicide agent exposure because there is no link shown between the two. Again, the opinion relied on the NAS report to support this conclusion. The AOJ requested an additional opinion due to similar inadequacies in the March 2018 opinion. A new opinion was provided in September 2020. The opinion stated that the Veteran's colon cancer was less likely than not due to his service-connected IBS, exposure to herbicide agents, or exposure to solvents. Regarding IBS, the opinion stated that IBS is not a risk factor for colon cancer, and many studies show it may be a protective factor. The clinician again relied on the NAS report stating insufficient evidence to declare a link between colon cancer and herbicide exposure. He further stated that there is no other medical evidence to the contrary, so there is no basis on which to disregard that report. With regard to exposure to solvents, the opinion stated that there is no specific solvent or amount of exposure reported and that therefore there is no basis on which to opine on the potential carcinogenic effects of an unspecified amount of exposure to an unspecified solvent. In December 2020, the Board remanded the matter again, as the opinions still failed to address the report of possible polyps found in March 1988. An opinion was obtained in January 2021. The opinion provided that the Veteran's colon cancer was less likely than not related to service, to include the March 1988 findings. The rationale was that no cancer was found in the 2002 colonoscopy, so it is clear that the March 1988 polyps did not result in the Veteran's colon cancer diagnosed in 2006. An addendum was provided in March 2021, in which the clinician clarified that if there had been polyps present in March 1988, even benign polyps would have grown substantially between that time and the 2002 colonoscopy. Malignant tumors would have grown much more quickly and been obvious at the 2002 colonoscopy. As the 2002 colonoscopy did not find any evidence of such, there cannot be a link between the colon cancer diagnosed in 2006 and the findings on the March 1988 report. After review of the record, the Board finds that service connection for the cause of the Veteran's death is not warranted. Colon cancer was not manifest in service or within one year, as the January and March 2021 medical opinions together indicate that the March 1988 finding of "possible polyps" could not be related to the Veteran's eventual development of colon cancer. The Board notes that when the Veteran was diagnosed with colon cancer in 2006 he reported symptoms that had manifest several years prior. However, there is no indication that the symptoms were present during service or within one year. Further, colon cancer is not proximately due to or aggravated by a service-connected disease or injury. Multiple medical opinions have related that IBS is a protective factor, not a risk factor, for colon cancer, so the evidence does not support a finding that colon cancer is secondary to IBS. With regard to possible links to in-service exposures to herbicide agents or solvents, the medical evidence weighs against such a finding. The Veteran has confirmed service in Vietnam, so exposure to herbicide agents is presumed. However, there is no reported medical link between herbicide agents and colon cancer, and the evidence of record regarding solvent exposure is insufficient to support a finding of nexus on this basis. The Board acknowledges the appellant's assertions regarding these links; however, we find the medical opinions of record to be of greater probative value as they are based on review of medical literature and expertise. Finally, the Board notes the appellant's assertion that the Veteran's colon cancer may be associated with exposure to contaminated drinking water at Camp Lejeune. However, there is no medical evidence, or evidence of any kind, of record suggesting any such link. Lastly, there is no evidence that a service connected disease caused or materially influenced the cause of death. The preponderance of the evidence is against the claim, and there is no doubt to be resolved. Service connection for the Veteran's cause of death is denied.] H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Creegan 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.