Citation Nr: 21030335 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 10-36 162A DATE: May 18, 2021 ORDER Entitlement to service connection for colon cancer, to include as due to herbicide agent exposure or secondary to service-connected diabetes mellitus, type II, is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDING OF FACT Colon cancer is not shown to be causally or etiologically related to any disease, injury or incident during service, to include herbicide agent exposure, and did not manifest to a compensable degree within one year of discharge from active duty. CONCLUSION OF LAW The criteria for service connection for colon cancer have not been met. 38 U.S.C. §§ 101 (24), 1101, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.1 (d), 3.6(a), 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 Army from April 1966 to April 1968, including service in the Republic of Vietnam. He passed away in February 2015, and service connection for his cause of death was granted in a May 2015 rating decision. His surviving spouse has been substituted as the Appellant for the issues on appeal. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The claims were previously before the Board in July 2020, when the Board reopened and remanded the claim for entitlement to service connection for hypertension, and remanded the claims for entitlement to service connection for colon cancer and entitlement to a TDIU. The case was again remanded in January 2021, and it now returns for further appellate review. New evidence added to the file is either not relevant or duplicate of evidence previously of record. 38 C.F.R. 20.1304(c); see Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Entitlement to service connection for colon cancer. The Appellant contends that the Veteran's colon cancer was a result of his service. During his lifetime, in a May 2018 statement, the Veteran asserted that his colon cancer, diagnosed as tubulovillous adenoma with intramucosal carcinoma, was caused by his exposure to herbicide agents during his service in the Republic of Vietnam. The Appellant's representative has also argued that the Veteran's colon cancer could have been caused by his service-connected diabetes mellitus, type II. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 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, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as malignant tumors, 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. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As an initial matter, the Veteran had active service in Vietnam during the period from January 9, 1962, to May 7, 1975. Therefore, he is presumed to have been exposed to an herbicide agent during service. In July 2020, the Board remanded the Veteran's claim in order to obtain a medical opinion evaluating the Veteran's claimed connection between his colon cancer and his service. Accordingly, a VA opinion was obtained in July 2020. The examiner opined that the Veteran's colon cancer was less likely than not incurred in or caused by his service, reasoning that service treatment records were silent for a diagnosis of, or treatment for, colon cancer. The examiner further concluded that the Veteran's colon cancer was less likely than not proximately due to or aggravated beyond its natural progression by the Veteran's service-connected diabetes mellitus. The examiner reasoned that diabetes mellitus and colon cancer "are different condition[s] with different etiologies." The examiner did not address whether the Veteran's colon cancer was caused by his exposure to herbicide agents. The examiner also did not adequately address a medical article provided by the Appellant in February 2020 suggesting that diabetes leads to an increased risk for the development of colon cancer. A new addendum opinion was, therefore, obtained in February 2021. At such time, the examiner considered the medical records and lay statements of the Veteran and the contentions of the Appellant, to include the article submitted in 2020. The examiner concluded that it was less likely than not that the Veteran's colon cancer was due to his service, to include his exposure to herbicide agents. In this regard, the examiner found no supportive evidence of record or medical literature available. Furthermore, the examiner found that no medical evidence even suggested a causal relationship between the Veteran's exposure to herbicide agents and his colon cancer. The examiner cited medical literature reviewed when explaining this finding. Finally, the examiner found no causal relationship between the Veteran's colon cancer and his service-connected diabetes mellitus, type II. In this regard, the examiner found that the article submitted by the Appellant suggested the possibility of a co-morbid relationship between diabetes and colon cancer, but that such correlation was not strong enough to prove causation at even a likelihood of 50 percent. The examiner also found that such was not sufficient to even suggest that the Veteran's diabetes mellitus, type II, even aggravated his colon cancer beyond its natural progression. The Board affords great probative weight to the February 2021 VA examiner's opinion as it considered all of the pertinent evidence of record, to include the Veteran's medical history and relevant medical literature. It specifically considered the NAS 2018 update, plus the article submitted by the Appellant. The examiner also provided a complete rationale, relying on and citing to the records and studies reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Moreover, there is no medical opinion to the contrary of record. The Appellant believes there was a nexus in the Veteran's case. In this regard, the diagnosis and etiology of cancer is a matter not capable of lay observation and requires medical expertise to determine. Specifically, such inquiries involve a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) ("[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). The Appellant's opinion on such matters is not competent. Therefore, the Board finds that colon cancer is not shown to be causally or etiologically related to any disease, injury or incident during service. Thus, service connection for such disorder is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for colon cancer. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 1. Entitlement to service connection for hypertension. In July 2020, the AOJ obtained a VA medical opinion regarding the etiology of the Veteran's hypertension. The examiner concluded that the Veteran's hypertension was less likely than not incurred in or caused by his service, noting an absence of medical evidence documenting symptoms of, or a diagnosis of, hypertension. The examiner also opined that the Veteran's hypertension was less likely than not proximately due to or aggravated beyond its natural progression by the Veteran's service-connected coronary artery disease. The examiner reasoned that the two disorders have different etiologies, and that there was no evidence that coronary artery disease aggravated the hypertension because the last progress note showed a stable blood pressure reading and there were no emergency visits or hospitalizations due to hypertension. However, in the January 2021 remand, the Board found that the examiner did not address the medical article submitted by the Appellant in February 2020, which suggests an association between coronary artery disease and hypertension. Also, the Board noted that in support of the opinion that the Veteran's hypertension was less likely than not proximately due to or the result of the service-connected coronary artery disease, the primary rationale was that the hypertension diagnosis preceded the coronary artery disease diagnosis. Finally, in the direct service connection opinion, the Board found that the examiner failed to address whether the Veteran's hypertension was at least as likely as not caused by his presumed exposure to herbicide agents, as instructed in the prior remand. Accordingly, the Board instructed that an additional medical opinion be obtained to address these inadequacies in the prior opinion. Such opinion was obtained in February 2021, however, the Board finds that the February 2021 examiner also failed to substantially comply with the prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, while the examiner did discuss the lack of evidence linking the Veteran's hypertension and his herbicide agent exposure, he again failed to address the medical article submitted by the Appellant in February 2021 highlighting an association between coronary artery disease and hypertension. Next, the examiner also provided an identical, insufficient rationale regarding the question of whether the Veteran's hypertension was proximately due to or the result of the Veteran's service-connected coronary artery disease. Accordingly, another addendum opinion must be obtained. 2. Entitlement to a TDIU is remanded. The Appellant contends that the Veteran was unable to work due to his service-connected disabilities. Thus, the claim for a TDIU is inextricably intertwined with the claim remanded herein. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). As such, consideration of the Veteran's TDIU claim must be deferred pending the outcome of the service connection claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Additionally, there is no Application for Increased Compensation for Unemployability (VA Form 21-8940) of record. Thus, on remand, the AOJ should request that the Appellant complete such form outlining the Veteran's work history. The matters are REMANDED for the following action: 1. The AOJ should request the Appellant to complete a VA Form 21-8940 to support the claim for a TDIU. 2. Forward the Veteran's claims file to an appropriate clinician to obtain an addendum medical opinion regarding the service connection claim for hypertension. Following a review of the claims file, the clinician should provide the following opinions: Is it at least as likely as not that the Veteran's hypertension was caused (proximately due to) OR aggravated (worsened to any degree) by his service-connected coronary artery disease? The clinician must address the June 2006 medical article (received in February 2020) suggesting an association between coronary artery disease and hypertension. Corey Bosely Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Breckenridge, 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.