Citation Nr: 22001997 Decision Date: 01/13/22 Archive Date: 01/13/22 DOCKET NO. 16-50 340 DATE: January 13, 2022 ORDER Entitlement to service connection for colon cancer as a result of exposure to herbicide agents is denied. REMANDED Entitlement to service connection for hypertension as a result of exposure to herbicide agents is remanded. Entitlement to service connection for dermatitis of the bilateral hands as a result of exposure to herbicide agents is remanded. FINDINGS OF FACT The Veteran first developed colon cancer many years after discharge from service and his colon cancer is unrelated to service, including his presumed exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for colon cancer are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from March 1966 to March 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a Board hearing. The transcript is of record. The claim on appeal has been remanded for medical inquiry three times, in January 2020, April 2021, and July 2021. In response, VA medical opinions have been included in the claims file. Another remand is warranted for issuance of addendum medical opinions for the issues of hypertension and dermatitis of bilateral hands. 1. Entitlement to service connection for colon cancer in denied. The Veteran claims that he is entitled to service connection for colon cancer due to his exposure to herbicide agents. The Board found that the Veteran was exposed to herbicides in service. See Board Hearing. 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). For veterans who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including malignant tumors, if the disability manifested to a compensable degree within one year of discharge from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed to an herbicide agent if a listed chronic disease becomes manifest to a degree of 10 percent disabling or more, unless there is affirmative evidence to the contrary. See 38 C.F.R. § 3.307 (a). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including respiratory cancers, are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service. See 38 U.S.C. § 1116(a); 38 C.F.R. § 3.309(e). The presumption is rebuttable. See 38 C.F.R. § 3.307(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record. 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. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Colon cancer is not included in the list of presumptive diseases based on exposure to herbicides. VA has determined that there is no positive association between exposure to herbicide agents and any other condition for which it has not specifically been determined that a presumption of service connection is warranted. See 59 Fed. Reg. 341-46 (1994); see also 61 Fed. Reg. 57586-89 (1996). Because the Veteran's claimed disability, colon cancer, is not listed under 38 U.S.C. § 1116 or 38 C.F.R. § 3.309(e) as a disease associated with herbicide agent exposure, the presumption of service connection for colon cancer based on herbicide agent exposure is not warranted. 38 C.F.R. §§ 3.307, 3.309(e). The Board acknowledges the lay statements of record and the assertion that the Veteran's colon cancer was related to herbicide exposure. The Veteran is competent to relate symptoms within the realm of their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). To the extent that the Veteran has alleged that his colon cancer is due to his exposure to herbicide agents, this falls outside the realm of common knowledge of a lay person as this is beyond the capability of a lay person to observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Consequently, the Veteran and appellant's statements linking his colon cancer to herbicide agent exposure are of no probative value. Furthermore, there is no medical evidence in the record indicating that the Veteran's colon cancer is related to exposure to herbicide agents. Accordingly, service connection for colon cancer based on exposure to herbicide agents is not warranted. See Combee v. Brown, 34 F. 3d. 1039 (Fed. Cir. 1994). The Veteran's service treatment records are silent as to complaints of, diagnosis of or treatment for colon cancer. The Veteran does not allege that he had colon cancer while on active duty. Additionally, there is no competent evidence of record documenting the presence of colon cancer to a compensable degree within one year of discharge which would allow for the grant of service connection based on for colon cancer as a chronic disease under 38 C.F.R. § 3.307. The earliest mention of the Veteran's colon cancer was in a July 2013 post-operative note regarding the removal of the Veteran's "right colon and terminal ileum." Subsequently, the Veteran's medical records note the Veteran's history of colon cancer. The Veteran submitted a privately completed Disability Benefits Questionnaire (DBQ) that noted the Veteran's "rejection of the large intestine" surgery that was completed in July 2013. The clinician opined that "the above condition is as likely as not to be related to service." The Board finds that this opinion is not enough to support a finding that service connection for colon cancer is warranted. The opinion is not specific and fails to include a rationale for its opinion. In so far as this could be considered a medical opinion on service connection, the Board gives it little probative weight because it provided no rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). In November 2020, a VA examination was completed. The examiner rendered a negative service connection opinion as there were no treatment notes or diagnosis of colon cancer in the Veteran's file. The Board remanded the case for a new opinion. The November 2021 VA examiner rendered another negative opinion finding that it is less likely than not the colon cancer was incurred in or caused by and event, injury or illness during service to include herbicide exposure. The examiner reasoned that the Veteran's service treatment records are silent for signs, symptoms, a diagnosis for or treatment of colon cancer while on active duty. Additionally, the examiner noted that the medical literature does not support a causal relationship that exposure to herbicides cause colon cancer to develop. The Board gives significant weight to the opinion of the November 2021 VA examiner. This opinion was conducted by a health care professional, who reviewed the record and conducted a physical examination and conducted medical research. This opinion is supported by adequate rationale and specific citations to the medical evidence of record. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The report of the examination is probative of the issue on appeal. The Veteran's service treatment records do not include treatment for colon cancer symptoms and a diagnosis was not received until years post-service. Additionally, the Veteran has asserted throughout the period on appeal that his colon cancer is due to herbicide exposure, which the examiner considered, noting that medical literature does not support a causal relationship between herbicides and colon cancer. There is no competent evidence of record which links colon cancer directly to the Veteran's active-duty service. The probative evidence of record does not establish that the Veteran's claimed disability manifested during service or is related to service. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for colon cancer and that service connection is not warranted. REASONS FOR REMAND 1. Service connection for hypertension as a result of exposure to herbicides is remanded. In November 2021, a VA opinion was completed for service connection for hypertension. See November 2021 VA Examination. The examiner found that it is less likely than not that the Veteran's hypertension is related to service, to include his presumed exposure to herbicides. The examiner stated that there were no treatment notes that included a diagnosis of hypertension. The examiner also considered the National Academy of Sciences (NAS) article which opined a possible association between herbicide exposure and hypertension. However, he or she determined that medical literature is silent to support a true causal relationship that exposure to herbicide later causes hypertension to develop. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. The VA also has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist including providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A review of the Veteran's service treatment records (STRs) reveals that the Veteran had a number of elevated blood pressure readings during service. Diastolic blood pressures were recorded in the high and mid-70's and systolic blood pressures were recorded in the low and mid-120's. The examiner failed to consider the Veteran's elevated in-service blood pressure readings in rendering his or her opinion. Any etiology opinion must take into account the Veteran's medical history. Regrettably, as these readings were not addressed and considered in the prior opinion, the Board finds that there has not been substantial compliance with its previous remand directives. As such, this matter must be remanded for an addendum VA medical opinion that complies with the Board's remand directives and considers all the evidence of record. 2. Service connection for dermatitis of the bilateral hands as a result of exposure to herbicides is remanded. In November 2021, a VA opinion was completed for service connection for dermatitis of the bilateral hands. See November 2021 VA Examination. The examiner found that it is less likely than not that the Veteran's skin condition is related to service, to include his presumed exposure to herbicides. He or she stated that there were no treatment notes available that included a diagnosis of dermatitis. Additionally, the examiner noted that service treatment records are silent for signs, symptoms, diagnosis or treatment of chronic dermatitis while on active duty. Finally, medical literature does not support a causal relationship that exposure to herbicides such as "agent orange" later cause dermatitis of the hands to develop. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. The VA also has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist including providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds the November 2021 VA medical opinion inadequate. The Veteran testified that his hands started itching and flaking during military service and his skin condition has worsened to the present. See Hearing Transcript.. He shared that he worked with solvents during service, which may have impacted his condition. He further testified that he did not have any problems with his hands prior to service. The examiner failed to address the Veteran's contentions that he has experienced hand trouble since military service in rendering his or her opinion regarding the Veteran's acquired dermatitis of bilateral hands. Notably, the Veteran was found credible at his hearing and is competent to report observable symptoms, such as skin rashes on his hands during service. Any etiology opinion must take into account the Veteran's medical history. Regrettably, for the above reasons the Board finds that there has not been substantial compliance with its previous remand directives. As such, this matter must be remanded for an addendum VA medical opinion that complies with the Board's remand directives and considers all the evidence of record. The matters are REMANDED for the following action: 1. Obtain updated VA and/or private treatment records to the extent possible. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Once the above has been completed to the extent possible, obtain an addendum opinion from the VA examiner who conducted the November 2021 VA opinions regarding the nature and etiology of the Veteran's hypertension and dermatitis of bilateral hands. The electronic claims file must be made available to the examiner. The examiner should note in the examination report that the claims file has been reviewed. If the November 2021 VA examiner(s) is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. If the examiner determines that another VA examination is necessary, one should be scheduled. Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension is related to service, to include his presumed exposure to herbicides? The Veteran must comment on the Veteran's elevated blood pressure readings in service. See Service Treatment Records. The examiner also must specifically address the recent NAS study regarding hypertension. (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's skin condition is related to service, to include his presumed exposure to herbicides? The examiner must comment on the Veteran's contentions that his hand conditions began in service and has worsened to the present. See Board Hearing Transcript. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. The examiner is reminded that an opinion that is based solely on the lack of any current presumptive relationship is not adequate. In rendering the requested opinion, the examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. In all opinions rendered, the examiner is advised that the Veteran is competent to report his symptoms and treatment history including his reports of elevated blood pressure and bilateral hand issues due to his alleged in-service injury with continued symptoms to the present. If there is a medical basis to doubt the history provided by the Veteran, the examiner should indicate this in the examination report and provide a rationale for that determination. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Schmidt 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.