Citation Nr: 22012986 Decision Date: 03/08/22 Archive Date: 03/08/22 DOCKET NO. 16-39 517 DATE: March 8, 2022 ORDER Service connection for colon cancer is denied. FINDING OF FACT The evidence is not in approximate balance but persuasively establishes that the Veteran's colon cancer was not incurred during service and is not causally related to service. CONCLUSION OF LAW The criteria for service connection for colon cancer have not been met. 38 U.S.C. §§ 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served in the U.S. Air Force from March 1962 to January 1968 and from December 1990 to July 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision. The Board remanded this matter for further development in November 2019, April 2021, and August 2021. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). Service connection for colon cancer Generally, to establish service connection a Veteran must 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). A "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Likewise, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be more persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b) (2012). The Veteran's general contention is that his colon cancer is causally related to his service. Medical treatment records show that the Veteran was diagnosed with colon cancer in January 1995 after a colonoscopy revealed a two-centimeter tumor in the lower rectum after several months of bloody stools and abdominal pain. A July 1991 Report of Medical Examination service treatment record (STR) reflect that the Veteran had a negative guaiac fecal occult blood test (FOBT) result which tests for trace amounts of blood in the stool suggestive of colorectal cancer. The Veteran attended a VA examination in January 2020. The examiner opined that colon cancer was less likely than not incurred in or caused by service as the Veteran was diagnosed in 1995 and there is no evidence of colon cancer or related symptoms in the service records. Additionally, he noted that the 2018 update to "Veterans and Agent Orange" concluded that the available evidence does not support an association between herbicides and colon cancer. Thus, the examiner concluded that as he found no other evidence to support an association, there is no evidence of a link between colon cancer and service and/or exposure to herbicides. A June 2021 VA medical examiner opined that the colon cancer was less likely than not caused by the Veteran's conceded exposure to the herbicide Agent Orange while on active military duty. The June 2021 VA examiner further found it less likely than not that the Veteran's colon cancer is related to military service, including due to herbicide exposure. In an October 2021 VA medical opinion, a clinician opined that it is less likely than not that the Veteran's colorectal cancer was incurred in or caused by service. The examiner explained that the Veteran's age and gender placed him at a heightened risk for developing colon cancer and that there are no factors related to his service that increased this risk or caused this disability to progress more rapidly than in the general population with a similar profile of non-modifiable genetic risk factors and personally modifiable lifestyle risk factors. The examiner cited to multiple peer-reviewed medical studies to support their findings. Initially, the Veteran's active duty included service in the Republic of Vietnam, and he is thus presumed to have been exposed to Agent Orange. 38 U.S.C. § 1116 (f) and 38 C.F.R. § 3.307 (a)(6)(iii). While colon cancer is not on the list of presumptive disabilities due to exposure to Agent Orange as listed under 38 C.F.R. §§ 3.307 (a), 3.309(e), and presumptive service connection for colon cancer as a chronic disease under 38 C.F.R. §§ 3.307 (a), 3.309(a) is not applicable since the disability was not diagnosed within a year of service, the Veteran can still establish service connection for this disability on a direct basis. In that regard, after a thorough review of the evidence, the Board finds that the competent medical evidence of record persuasively weighs against finding that the Veteran's colon cancer was incurred in or is causally related to his service. The October 2021 VA medical opinion was authored by a qualified medical professional with experience and expertise in assessing the pathophysiology of colon cancer. Moreover, their negative nexus finding was well-supported by citation to nine separate medical studies. Further, the negative July 1991 FOBT at separation from service and absence of any reports or treatment for any rectal or abdominal symptoms associated with colon cancer is an indication that this disability did not manifest during service. There is no medical evidence of record suggesting that the Veteran's colon cancer is causally related to any in-service factors or first manifested during his active-duty service. In addition, the Veteran has not been shown to have the experience, training, or education necessary to give a probative etiology opinion for colon cancer. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issues in this case considering the education and training necessary to make a finding about the complexities of colon cancer, to include the Veteran's age-related and genetic risk factors. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In sum, the evidence of record is persuasively against a finding that the Veteran's colon cancer began in service, within one year of service or is related to any incident of service to include Agent Orange exposure. The elements of service connection therefore have not been met and the claim must be denied. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kyle McKone 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.