Citation Nr: 22008046 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 17-63 610 DATE: February 11, 2022 ORDER Entitlement to service connection for disability of the distal rectum is denied. FINDING OF FACT The Veteran's rectum disability is not proximately due to or aggravated by his service-connected PTSD, or otherwise related to his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for disability of the distal rectum have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1965 to November 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a February 2018 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In June 2019 and November 2021, the Board remanded the issue on appeal for additional development, and the case has since been returned for further appellate review. A remand by the Board confers on the claimant a legal right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). The Board's November 2021 remand directed the RO to obtain an addendum medical opinion regarding nexus to service and advising the likely etiology of the Veteran's rectal polyps and hemorrhoids. An opinion sufficiently addressing the Board's remands was provided in November 2021 and, as such, substantial compliance has been achieved. Id. at 271. 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 a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists, and (2) that the current disability was either (a) caused by, or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995). Regulation provides that a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309 (e), will be considered to have been incurred in service under the circumstances outlined even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307 (a). Nevertheless, the United States Court of Appeals for the Federal Circuit has determined that a claimant who suffers from a disability that is not listed among those for which presumptive service is afforded based on exposure to herbicide agents is not precluded from establishing service connection for such disability as due to herbicide agent exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. 1. Entitlement to service connection for disability of the distal rectum The Veteran contends he is entitled to service connection for disability of the distal rectum. He asserts his condition is the result of herbicide agent exposure, and alternatively, the result of his service-connected psychiatric disorder. The Veteran was found to have a rectal mass in 2017. Following surgical removal and resection, the Veteran's diagnoses included adenomatous polyp, internal and external hemorrhoids, and rectal polyps. Therefore, the Veteran has a current diagnosis, and the first element of service connection is satisfied. 38 C.F.R. § 3.303 (a). The Veteran asserts that his rectal disability is due to herbicide agent exposure while serving in Vietnam. The Veteran's military personnel record confirms his service in Vietnam from August 1966 to July 1967. He is also the recipient of the Bronze Star and other combat medals and badges. Therefore, the Veteran's exposure to herbicide agents is presumed and the second element of service connection is met. 38 C.F.R. § 3.307 (a)(6)(iii). However, the Veteran's rectal condition is not a disease or disability subject to presumptive service connection based on herbicide agent exposure. 38 C.F.R. § 3.309 (e). Nevertheless, service connection on a direct theory of entitlement may be warranted. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Therefore, the remaining element necessary for a grant of service connection, a nexus between such exposure and service or a service-connected disability, must be established. Several medical opinions have been provided regarding whether a nexus between his disability and in-service herbicide exposure exists. The Veteran was first provided a VA examination in connection with his claim in September 2020. The examiner concluded the Veteran's rectal cancer is less likely than not proximately due to or the result of his military service. The examiner reasoned review of relevant medical literature does not establish herbicide exposure as a cause of colorectal cancer. Rather, he notes the Veteran has several risk factors in developing colorectal cancer that are unrelated to his service including gall bladder removal, family history of cancer, and alcohol use disorder. He was noted to have diverticulosis, small internal hemorrhoid, and small reducible external hemorrhoid. A spot outside the rectum was noted upon physical examination, however laboratory studies produced normal results. The RO requested clarification of the physical findings of the September 2020 examination. A March 2021 examiner completed an intestinal condition disability benefits questionnaire (DBQ) and provided an opinion on the status of the Veteran's rectal disability. He concluded the September 2020 examiner misdiagnosed the Veteran with colorectal cancer as the Veteran did not endorse recurrence of cancer. He further clarified that the Veteran was never formally diagnosed with rectal carcinoma, but rather "intramucosal adenocarcinoma without evidence of invasive adenocarcinoma." Final surgical pathology indicated there was no evidence of malignancy or high-grade dysplasia and he did not receive radiation or chemotherapy treatment. Following surgery, the Veteran's diagnosis was rectal polyp and adenomatous polyp. The March 2021 examiner explained that the Veteran's hemorrhoids noted in the September 2020 exam are considered a separate condition and unrelated to his rectal condition. The examiner notes that the Veteran also has diagnoses of IBS and diverticulosis which are also considered separate conditions and unrelated to rectal carcinoma and hemorrhoids. An additional notation indicates the Veteran has separate diagnoses of ulcerative colitis and Crohn's disease. The examiner opined the Veteran's disability, rectal polyp and adenomatous polyp, was less likely than not incurred in or caused by his service. He concludes current medical research does not indicate a causal relationship between herbicide exposure, including Agent Orange, and the development of rectal polyps. He further concludes the Veteran's hemorrhoids are unrelated as there is a lack of initial clinical manifestations of hemorrhoids or rectal polyps during service. Following the Board's remand, an addendum opinion was provided in November 2021. The examiner similarly concludes the Veteran's rectal disability is less likely than not incurred in, caused by, or otherwise etiologically related to his service, to include environmental exposures. The examiner cites medical literature in support and instead points to the Veteran's personal risk factors for developing colorectal cancer, a 50-year difference since his exposure and diagnosis, a lack of objective evidence of related symptoms or complaints during service, and the Veteran's additional but unrelated intestinal conditions. The Veteran also contends his rectal disability is related to his service-connected PTSD with major depressive disorder. See 38 C.F.R. § 3.310. Specifically, the Veteran asserts an alcohol use disorder associated with his PTSD caused or aggravated his rectal disability. On this, there are conflicting opinions on the issue. An addendum opinion regarding a secondary theory of entitlement was provided in January 2021. The examiner concluded the Veteran's carcinoma of the distal rectum is at least as likely as not secondary to his alcoholism due to his PTSD. The examiner indicates alcohol use has been linked with a higher risk of cancers of the colon and rectum. He cites medical literature stating that alcohol and its byproducts act as an irritant of the mouth and throat, may damage the liver, can lead to inflammation and scarring, and may damage DNA. He reasons that damaged DNA could lead to cancer. The examiner concludes, "with the prominent family history of cancer, the Veteran has increased chances of being diagnosed with cancer" and therefore his distal rectum carcinoma is secondary to his alcoholism. A new addendum opinion on the issue was obtained in November 2021. There the examiner concluded the Veteran's rectal polyps, adenomatous polyps, and hemorrhoids are less likely than not proximately due to or the result of the Veteran's service-connected psychiatric disorder and associated conditions. She also concluded the Veteran's rectal disability was less likely than not aggravated beyond its natural progression by his PTSD with major depressive disorder. The examiner reasoned, although PTSD can cause digestive issues, there is no medical correlation to his rectal disability. She cites medical literature supporting that PTSD is shown to be associated with an increased allostatic load that results in chronic musculoskeletal pain, hypertension, obesity, and cardiovascular disease. She additionally notes other risk factors relevant to the Veteran, including a family history of cancer, prior gall bladder removal, and the 50-year gap from military separation to diagnosis. She notes the Veteran did not report symptoms consistent with digestive or hemorrhoid flare-up at the time he was diagnosed with PTSD and his service record did not indicate associated symptoms during active duty. The examiner provides an overview of factors demonstrated by the Veteran that are the likely etiology of his rectal/adenomatous polyps and hemorrhoids. She first notes age, as most people with colon polyps are 50 and older. She indicates intestinal conditions such as ulcerative colitis and Crohn's disease, two conditions the Veteran is noted to have, increases the overall risk of colon polyps, as well as cancer. She next notes a high risk of developing colon polyps or cancer if family members also have them, though notes it may not be hereditary. She also indicates smoking and excess alcohol use increase the risk, as well as obesity, fat intake, and race. The examiner notes the Veteran's alcohol use disorder and acknowledges it is a risk factor for developing colorectal cancer, but concludes it is not possible to speculate if ethanol caused or aggravated the Veteran polyp disability as he has several risk factors and a notable family history of cancer. The Board concludes the cumulative evidence is not in relative equipoise, and the evidence supports finding that the Veteran's rectal disability is not due to in-service herbicide exposure, and the disability is not proximately due to or aggravated by his service-connected PTSD with alcohol abuse disorder. Regarding a medical nexus to herbicide exposure, the Board finds the opinions of the above VA examiners highly probative. The negative nexus opinions of the September 2020, March 2021, and November 2021 examiners are consistent with each other and the conclusions are supported by relevant facts of the Veteran's medical history. The examiners support their conclusions with several medical treatises, with each examiner citing different sources. Further, the examiners also conducted the Veteran's intestinal examinations and, therefore, provided an opinion with consideration of the Veteran's overall disability picture based on review of the claims file and relevant facts. Combined, the opinions provide a thorough assessment of the Veteran's disability and potential relationship to herbicide agent exposure. Additionally, the record does not contain a contrary medical opinion and there is no evidence in the alternative. Regarding the issue of service connection secondary to the Veteran's PTSD and associated alcohol abuse disorder, the Board does not find the evidence in equipoise. Upon thorough consideration, the Board concludes the evidence of record persuasively weighs against finding that the Veteran's rectal disability, is proximately due to, the result of, or aggravated beyond its natural progression by a service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). First, the Board notes the diagnosis clarification provided by the March 2021 examiner. He specifies the Veteran's rectal mass was biopsied following surgical removal and there was no evidence of malignancy. Therefore, he was given the diagnoses rectal polyp and adenomatous polyp per the final pathology report. The examiner also clarified the Veteran did not have a current diagnosis of colorectal cancer as the physical findings at the September 2020 VA examination were in reference to the Veteran's hemorrhoids, which he specified is a separate condition. While the January 2021 examiner indicated it is at least as likely as not the Veteran's disability is proximately due to his PTSD, the examiner's opinion is contradictory and lacking in analysis. See Thompson v. Gober, 14 Vet. App. 187, 188 (2000) (per curiam). The examiner's rationale is a conclusory sentence with no discussion or analysis linking medical principles to the Veteran's rectal disability. The examiner cites one source that presents medical findings related to alcohol use and cancer; for example, alcohol can lead to DNA changes in the cells and possible liver damage. However, he does not connect that information to the Veteran's rectal polyps or provide analysis with consideration of facts specific to this Veteran. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The examiner also notes the Veteran's family history of cancer as Further, based on the prior clarification of the Veteran's diagnosis, medical opinions regarding the Veteran's polyp condition, as opposed to cancer, are most probative for adjudication. To the contrary, the November 2021 VA opinion discusses the Veteran's disability with specificity and gives focus to the Veteran's clarified diagnosis. The examiner provides three separate discussions regarding the Veteran's rectal disability, including an opinion on etiology and assessment of his hemorrhoid condition. She cites several medical treatises and studies from varied sources that support her conclusions. The examiner indicated full review of the record and the Veteran's medical history with notation to relevant evidence. She acknowledges the Veteran's alcohol use disorder, but instead emphasizes etiology based on non-service connected conditions and other relevant risk factors the Veteran is shown to have. She additionally notes the Veteran's family medical history and gall bladder removal, as well as ulcerative colitis and Crohn's disease. The November 2021 examiner does not discount the medical information cited by the March 2021 examiner regarding the effects of alcohol on the body but draws a different conclusion with a more reasoned and persuasive discussion and rationale. See Prejean v. West, 13 Vet. App. 444 (2000). As such, the opinion of the November 2021 examiner is afforded more probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, the January and November 2021 VA opinions are not in approximate balance and a casual nexus to a service-connected disability is not established. While the Veteran believes his rectal disability is proximately due to a service-connected disability, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body, pathology, and diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Accordingly, the Board concludes that the evidence of record persuasively weighs against finding that the Veteran's rectal disability, is proximately due to, the result of, or aggravated beyond its natural progression by a service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.N. Chapman 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.