Citation Nr: 22015351 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 17-32 028 DATE: March 17, 2022 ORDER Service connection for rectal cancer is granted. FINDING OF FACT The Veteran's rectal cancer is related to his service-connected diabetes. CONCLUSION OF LAW The criteria are met for service connection for rectal cancer. 38 U.S.C. §§ 1110, 5103, 5103A; 5107; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1967 to January 1970. This appeal is from an August 2016 rating decision. In August 2021, the Board remanded this appeal for additional development. 1. Service connection for rectal cancer is granted. Service connection is granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The record shows the Veteran served in the Republic of Vietnam, and he is presumed to have been exposed to herbicide agents during that service. 38 C.F.R. § 3.307(a)(6). Rectal cancer is not listed among the disabilities for which service connection is presumed from such exposure. 38 C.F.R. § 3.309(e). However, service connection may still be shown on a direct basis if the evidence favorably shows a relationship, and this theory of service connection has been investigated. See 38 C.F.R. § 3.301; Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection is available on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. To prevail on the issue of entitlement to secondary service connection, there must be showing: (1) existence of a current disability; (2) a service-connected disability; and, (3) a nexus establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Here, the assertion is that the Veteran's exposure to herbicides or his service-connected diabetes caused or aggravated his rectal cancer. The Board observes that the AOJ (agency of original jurisdiction) drafted a rating decision in October 2021 that granted service connection for rectal cancer as related to diabetes. The decision noted it was based on the evidence of record, including specifically the January and October 2021 VA examination reports. However, the decision was never sent to the Veteran, and therefore the issue remains pending. Subsequent to the rating decision, a supplemental statement of the case (SSOC) was issued that continued to deny service connection, and the case was transferred back to the Board. Turning to the evidence, the January 2021 VA examination notes that there is some limited medical literature that shows a relationship between herbicide exposure and the development of rectal cancer, but that rectal cancer is not listed in 38 C.F.R. § 3.309(e) as a presumptive disease. That examiner opined against a relationship to service, noting the etiology of colorectal cancer is familial and environmental related, and that diabetes increases the risk. She noted "modest weak increased risk" from obesity, red meat, and tobacco and alcohol use. The November 2021 VA examiner opined against a relationship. He listed a number of risk factors for rectal cancer. He indicated that herbicides are not medically associated with rectal cancer, and that he listed the risk factors (above). He said the Veteran had a positive family history for rectal cancer, which "is the single greatest risk factor" giving him a 33 percent chance of developing rectal cancer. He was a heavy smoker, which is a significant risk, and moderate drinker, which increased the risk. He indicated that "diabetes does pose a relative risk of 1.3 for developing rectal cancer," but that rectal cancer was more likely related to the other risk factors than to his diabetes. The Board notes that this opinion does not adequately address whether the Veteran's diabetes caused or aggravated his diabetes, because a more likely cause does not obviate the possibility of a positive relationship. With regard to the substance of the opinion, there is adequate information provided for the Board to be persuaded that the Veteran's rectal cancer is related to his diabetes. Importantly, a "33 percent chance" and "a relative risk of 1.3" are approximately equal risks, with 33 percent being a bit higher. The examiner did not explain why he placed the most weight on the Veteran's purported family historywhich is not shown in the recordthan on the risk posed by diabetes. However, the Board notes that, since there is no family history of rectal cancer (see VA treatment records dated in June 2014), the single greatest risk factor from the list provided by the November 2021 VA examination would be his diabetes, which is very probative to this claim. As for the other listed risk factors, he does have a history of smoking and alcohol use, and he is overweight, but the January 2021 VA examiner indicated that these were "modest weak increased risks." The November 2021 VA examiner did not quantify the risks posed by those other factors, only noting that the smoking was a "significant risk," but not the "single greatest risk factor," so smoking was considered less significant than a family history. Given this failure to fully explain his findings, coupled with the January 2021 examiner's statement that the risk was "modest weak," the Board finds those factors increased his risk on a more limited basis. In sum, according to the VA examiners, the Veteran's diabetes placed him at the highest risk for developing rectal cancer, and he does not have other significant risk factors for developing it. Based on this, the Board finds the evidence persuasively shows that service connection is warranted rectal cancer. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Gibson 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.