Citation Nr: 21051100 Decision Date: 08/18/21 Archive Date: 08/18/21 DOCKET NO. 16-02 467 DATE: August 18, 2021 ORDER Entitlement to service connection for diverticulosis, including as secondary to prostate cancer and colon cancer, is denied. Entitlement to service connection for gastroesophageal reflux disease (GERD), including as secondary to prostate cancer and colon cancer, is denied. REMANDED Entitlement to service connection for peripheral vascular disease (PVD), right lower extremity, including as secondary to coronary artery disease (CAD), is remanded. Entitlement to service connection for PVD, left lower extremity, including as secondary to CAD, is remanded. Entitlement to service connection for CAD is remanded. Entitlement to service connection for colon cancer is remanded. Entitlement to service connection for prostate cancer is remanded. Entitlement to service connection for vertigo, including as secondary to service-connected hearing loss and tinnitus, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran was exposed to herbicides while in service. 2. The preponderance of the evidence is against finding that the Veteran's diverticulosis is secondary to his prostate cancer or colon cancer or is otherwise related to his service. 3. The preponderance of the evidence is against finding that the Veteran's GERD is secondary to his prostate cancer or colon cancer or is otherwise related to his service. CONCLUSIONS OF LAW 1. The criteria for service connection for diverticulosis, including as secondary to prostate cancer and colon cancer, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for GERD, including as secondary to prostate cancer and colon cancer, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1963 to November 1967. These issues come before the Board of Veterans' Appeals (Board) from October 2014 and July 2016 rating decisions issued by a United States Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was provided with an optional Board hearing before the undersigned Veterans Law Judge for the issues of entitlement to service connection for diverticulosis, GERD, peripheral vascular disease of the lower extremities, CAD, colon cancer, and prostate cancer in September 2020. A transcript of the hearing has been associated with the claims file. The issue of entitlement to service connection for vertigo was remanded by the Board in August 2018, July 2020, and January 2021 for further development. Additionally, the Board acknowledges that the VA received additional evidence after the May 2018 Statement of the Case. However, in May 2021, the Veteran submitted a waiver of initial RO consideration for any new evidence submitted. Thus, a remand for consideration of this evidence is not necessary. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for: (1) a disability that is proximately due to or the result of a service-connected disease or injury; or, (2) any increase in the 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. 38 C.F.R. § 3.310(a)-(b). 1. Entitlement to service connection for diverticulosis, including as secondary to prostate cancer and colon cancer 2. Entitlement to service connection for GERD, including as secondary to prostate cancer and colon cancer The Veteran contends that he has diverticulosis and GERD as a result of exposure to asbestos and inhaling toxic fumes while serving aboard the USS Sampson. In the alternative, the Veteran contends that he was exposed to herbicides while in service, which led to his current gastrointestinal issues. The Veteran also claims that his diverticulosis and GERD are secondary to his prostate and colon cancers. The Veteran claims that he was exposed to asbestos while in service due to his duties onboard the ship, which included dispensing paint to the crew for daily use. He contends that while doing this, he inhaled and breathed in toxic paint fumes and came into contact with other hazardous chemicals as well. The Board notes that in a May 2020 rating decision, the RO granted service connection for COPD and bronchitis based on the Veteran's reported exposure to asbestos while in service. As such, the VA has acknowledged the Veteran's exposure to asbestos while in service. See October 2019 VA medical opinion. The Veteran has also claimed that he was exposed to herbicides while in service. The Veteran contends that while in service, the USS Sampson would sometimes dock next to other ships at port, which included World War II destroyers. The Veteran contends that these war ships may have been deployed to Vietnam, and he may have been exposed to herbicides while crossing over the ships in order to go on shore. See September 2017 VA Form-9. However, the Board notes that the Veteran's personnel records, including his DD Form 214, do not show any service in Vietnam. His DD 214 also does not show any decorations or medals indicative of Vietnam service. Additionally, the VA issued a memorandum in April 2016 noting that the JSRRC reviewed the Veteran's personnel and service treatment records and found negative results for exposure to herbicides. The VA Agent Orange ship list did not show the USS Sampson as being in-country in Vietnam and the JSRRC found no other evidence indicating that the Veteran was exposed to herbicides. As such, exposure to herbicides based on service in the Republic of Vietnam may not be presumed. The Board also notes that there is no other evidence of record indicating that the Veteran had direct exposure to tactical herbicides while on active duty. His statements that he was near destroyers that may have been deployed to Vietnam and may have been exposed to herbicides is speculative. The record does not indicate that the Veteran has actual exposure to tactical herbicides. Accordingly, the Board finds that the evidence of record does not support the Veteran's claim that he was exposed to herbicides while in service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis for diverticulosis and GERD, the preponderance of the evidence is against finding that they began during active service, or are otherwise related to an in-service injury, event, or disease. The Veteran's service treatment records are silent for any signs or symptoms of diverticulosis or GERD. He denied having frequent indigestion, stomach troubles, or rectal disease during a self-report of medical history completed at the time of his separation from service. A clinical examination conducted during his separation examination indicated that his gastrointestinal system was clinically normal. The evidence of record includes VA treatment records from March 2003 showing a past medical history of diverticulosis of sigmoid. An assessment of GERD symptoms was also noted at the time. The Board notes that there is no competent and credible evidence in the record that links the Veteran's post-service diverticulosis or GERD to his service or to his prostate and colon cancers. The Board has considered the Veteran's assertion that his diverticulosis and GERD is related to his active duty service or to his prostate and colon cancers. However, he does not have the specialized knowledge to attribute his diverticulosis or GERD to a specific incident versus other, later, incidents, and/or other disabilities. This is because the etiology of diverticulosis and GERD are complex medical questions that require expertise to determine, unlike disorders such as flat feet, varicose veins, and ringing in the ears which are capable of lay observation. The Board is cognizant that the issues of service connection for prostate cancer and colon cancer are being remanded for further development in this decision. However, as there is no indication of a competent or credible link between the Veteran's diverticulosis or GERD and his prostate and colon cancers, the Board finds no prejudice in deciding the claims at this time. Accordingly, the Board finds that service connection for diverticulosis and GERD have not been established on a direct or secondary basis and the claims must be denied. In denying such rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5170; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to service connection for PVD, right lower extremity, including as secondary to CAD 2. Entitlement to service connection for PVD, left lower extremity, including as secondary to CAD The Veteran contends that he has PVD of the bilateral lower extremities that is due to his service, to include his acknowledged exposure to asbestos and his alleged exposure to toxic fumes and other hazardous chemicals while in service. In the alternative, the Veteran claims that his PVD of the lower extremities is secondary to his CAD. Upon separation from service, the Veteran checked "Yes" for "Cramps in your legs" on his November 1967 Report of Medical history. The evidence of record includes VA treatment records from September 2008 showing a diagnosis for PVD. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for PVD of the bilateral lower extremities because no VA examiner has opined whether this is related to his service. 3. Entitlement to service connection for CAD 4. Entitlement to service connection for colon cancer 5. Entitlement to service connection for prostate cancer The Veteran contends that he has CAD, colon cancer, and prostate cancer as a result of his service, to include his acknowledged exposure to asbestos and his alleged exposure to toxic fumes and other hazardous chemicals. The Veteran's service treatment records indicate treatment for urethritis in October 1964, September 1966, and February 1967. He also complained of urethral discharge in August 1966. In a May 2017 VA opinion, a VA examiner opined that the Veteran's CAD, colon cancer, and prostate cancer were less likely than not due to his service because "there is no medical evidence that the Veteran had any significant exposure to asbestos in the service and there is no medical evidence that the Veteran has any asbestos related disease." As the May 2017 VA opinion is based on the lack of asbestos exposure in service, and the VA has since acknowledged such exposure, the Board finds that an addendum opinion is required prior to adjudication of these issues. 6. Entitlement to service connection for vertigo, including as secondary to hearing loss and tinnitus The Veteran contends that he has vertigo as a result of his service, to include his acknowledged exposure to asbestos and his alleged exposure to toxic fumes and other hazardous chemicals. In the alternative, he claims that his vertigo is secondary to his service-connected hearing loss and tinnitus. The Veteran was treated for sea sickness while in service in August 1964. In a November 2020 statement, the Veteran indicated that he has "had bouts or episodes with vertigo since my discharge from active duty." The Veteran was most recently provided with a VA medical opinion in May 2021 where the VA examiner opined that the Veteran's vertigo was less likely than not caused by his service partially because he was noted to have sea sickness in 1967 and then was diagnosed with BPPV in April 2015, almost 45 years later. The examiner also noted that he had "no symptoms while he worked at delta airlines." The Board finds that the May 2021 opinion does not provide an adequate rationale regarding whether the Veteran's vertigo is due to his service. As noted above, the Veteran claims that he has endured symptoms of vertigo since his separation from service. The Board notes that the Veteran is competent to report symptoms of vertigo. As the May 2021 opinion was partially based on the lack of symptoms following service, without a discussion on whether there was a medical reason to doubt the Veteran's statements, the Board finds that an addendum medical opinion is required prior to adjudication of this issue. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his PVD of the bilateral lower extremities. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosis of PVD of the bilateral lower extremities had its onset in service or is otherwise etiologically related to any in-service disease, injury, or event, including acknowledged exposure to asbestos or to his alleged exposure to toxic fumes and other hazardous chemicals? The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. A fully articulated rationale for each opinion requested must be set forth in the medical report. The examiner must discuss the particulars of this Veteran's medical history and the relevant medical science applicable to this case, which may reasonably make clear the medical guidance in the study of this case. 2. Obtain a medical opinion to determine the nature and etiology of the Veteran's CAD, colon cancer, prostate cancer, and vertigo. Examination of the Veteran is not required unless the examiner determines that an examination is necessary to provide a reliable opinion. Following a review of the claims file, the examiner should address the following: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosis of CAD had its onset in service or is otherwise etiologically related to any in-service disease, injury, or event, including acknowledged exposure to asbestos or to his alleged exposure to toxic fumes and other hazardous chemicals? In so opining, the examiner should consider the Veteran's November 1967 Report of Medical History showing an affirmative answer for "Pain or pressure in chest." b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosis of colon cancer had its onset in service or is otherwise etiologically related to any in-service disease, injury, or event, including acknowledged exposure to asbestos or to his alleged exposure to toxic fumes and other hazardous chemicals? c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosis of prostate cancer had its onset in service or is otherwise etiologically related to any in-service disease, injury, or event, including acknowledged exposure to asbestos or to his alleged exposure to toxic fumes and other hazardous chemicals? In so opining, the examiner should consider treatment for urethritis in October 1964, September 1966, and February 1967, including treatment for urethral discharge in August 1966. d) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosis of vertigo had its onset in service or is otherwise etiologically related to any in-service disease, injury, or event, including acknowledged exposure to asbestos or to his alleged exposure to toxic fumes and other hazardous chemicals? The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. A fully articulated rationale for each opinion requested must be set forth in the medical report. The examiner must discuss the particulars of this Veteran's medical history and the relevant medical science applicable to this case, which may reasonably make clear the medical guidance in the study of this case. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morrad, 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.