Citation Nr: 22017693 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 13-03 771 DATE: March 25, 2022 ORDER Entitlement to service connection for colon cancer, to include due to herbicide exposure is denied. FINDING OF FACT The Veteran's colon cancer is not shown to be etiologically related to the Veteran's active service, to include as due to in-service herbicide exposure. CONCLUSION OF LAW The criteria for service connection for colon cancer, to include as due to herbicide exposure, are not met. 38 U.S.C. § 1101, 1131; 38 C.F.R. § 3.303, 3.307, 3.309, 3.311. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from September 1969 to July 1977. The Veteran died in September 2013. The Appellant is the Veteran's surviving spouse. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Board denied entitlement to service connection for colon cancer, to include as due to herbicide agent exposure. The Appellant appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In February 2020, the Court granted a Joint Motion for Partial Remand (JMPR) and vacated the December 2018 Board decision to the extent that it denied entitlement to service connection for colon cancer and remanded the issue to the Board for additional action. The Board then remanded the claim October 2020 in order to obtain a VA medical opinion. This issue is once again before the Board. Service Connection Service connection will be granted if the evidence demonstrates that a disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may be granted on a presumptive basis for diseases listed in §3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may be established for a malignant tumor that manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. § 3.307, 3.309(a). Service connection may also be granted for any disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may be granted for specific diseases associated with exposure to herbicide agents. 38 C.F.R. § 3.309 (e). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, despite any lack of evidence of such disease during service provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type II diabetes; Hodgkin's disease; ischemic heart disease; all chronic B-cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers; and soft-tissue sarcoma. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). Entitlement to service connection for colon cancer, to include due to herbicide exposure The Appellant asserts that the Veteran is entitled to service connection for colon cancer as due to in-service herbicide exposure. The Veteran is found to have been exposed to herbicide agents during service in Thailand. 38 U.S.C. § 1116; 38 C.F.R. § 3.307, 3.309(e). With respect to presumptive service connection for exposure to herbicide agents under 38 C.F.R. § 3.309 (e), the Veteran's colon cancer condition is not a disability listed in the regulation that is presumed to be related. As such, the Veteran's colon cancer is not presumed to be related to his exposure to herbicides during his service. Nevertheless, the Veteran's exposure to herbicides is conceded. The absence of a disease from the presumptive list does not preclude a veteran from otherwise proving that his disability resulted from exposure to contaminated herbicides. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Accordingly, the Board will still consider whether entitlement to service connection can be granted on any other basis. A review of the Veteran's service treatment records does not reveal complaints of, treatment for, or a diagnosis of colon cancer. The service treatment records do not contain any other indications of colon cancer or other digestive system conditions. Additionally, there is no evidence of treatment or complaints related to this condition within one year of discharge. The Veteran's post-service records indicate that he was not diagnosed with colon cancer until 2010, 37 years after discharge from service. Such a lapse of time is a factor for consideration in deciding a service connection claim. Moreover, there is no competent medical evidence of record that links the Veteran's claimed colon cancer to any event in service. Simply stated, the service and post-service medical records provide evidence against this claim, indicating a problem than began more than 35 years after service with no indication of a connection between the problem and service from many years ago. In the February 2020 JMPR, the parties agreed that the January 2018 Veterans Health Administration opinion was inadequate for adjudicatory purposes. The Board therefore remanded the claim for a new VA opinion. In February 2021 a new VA medical opinion was obtained. The VA examiner opined it was less likely than not that the Veteran's colon cancer began in service and continued since service, or was due to an in-service injury, illness, or disease, to include conceded herbicide exposure during service. In addition, the VA examiner opined it was less likely than not that the Veteran's colon cancer was not aggravated or caused by his service-connected disabilities. The VA examiner instead attributed the Veteran's colon cancer to strong risk factors such as smoking and that his father had colon cancer. The Board finds this opinion highly probative as the VA examiner reviewed the Veteran's records and gave a thorough rationale for her opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Not only at this point do with have a medical opinion against this claim, but the medical provider provided a possible cause of the disability. Now not only do the facts of this case provide evidence against this claim (a problem not indicated in service that began more 35 years after service with no indication of a connection between service and the disability in the medical records), but the best, and only, medical opinion evidence in this case provides evidence against this claim of high probative weight. The Board acknowledges that the Appellant believes the Veteran's colon cancer was related to in-service exposure to Agent Orange. However, the Appellant in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the pathology of colon cancer and the health effects of specific environmental exposures. Therefore, the issue is outside the competence of the Appellant because the record does not show she has the medical training or credentials 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). Consequently, her assertions are not entitled to probative value and do not weigh against the probative opinion of record. In summary, the probative evidence of record indicates that it is less likely than not that the Veteran's colon cancer began during active service or is otherwise related to an in-service injury or disease, to include in-service exposure to herbicides during service. (Continued on the next page) For all of the foregoing reasons, the Board finds that the claim of service connection for colon cancer must be denied. In reaching the above conclusions the Board has considered the applicability of the benefit of the doubt doctrine. However, as there is not an approximate balance of positive and negative evidence regarding the claim that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Boyd, Associate 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.