Citation Nr: 22045809 Decision Date: 08/11/22 Archive Date: 08/11/22 DOCKET NO. 13-05 766 DATE: August 11, 2022 ORDER Entitlement to service connection for a seizure disorder, to include as secondary to exposure to asbestos or herbicide is granted. Entitlement to service connection for colon cancer, to include as secondary to exposure to asbestos or herbicides is denied. REMANDED Entitlement to service connection for liver cancer, to include as secondary to exposure to asbestos or herbicides is remanded. FINDINGS OF FACT 1. The Veteran's seizure disorder had its onset within one year of his separation from service. 2. The Veteran's colon cancer is not related to his military service to include exposure to asbestos and herbicides. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a seizure disorder, to include as secondary to exposure to asbestos or herbicide have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for colon cancer, to include as secondary to exposure to asbestos or herbicides have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1968 to October 1969. He died in November 2013, and the appellant is his surviving spouse and the substitute-claimant in this appeal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In November 2012, the Veteran testified in a personal hearing before a Decision Review Officer (DRO) at the RO in Des Moines, Iowa. A transcript of the hearing has been associated with the claims file. The Veteran requested a video conference hearing before the Board in his February 2013 substantive appeal. He was subsequently scheduled for his requested Board hearing in September 2013. However, prior to the hearing in September 2013, the Veteran withdrew his hearing request due to illness. As the Veteran did not make any additional requests for a hearing, the Board finds that his hearing request has been withdrawn. See 38C.F.R. §20.704(e) (2014). These claims were previously before the Board in July 2015, September 2017, June 2019, and January 2021 at which time the Board remanded these issues for additional development. In October 2021, the case returned to the Board. The Board remanded the Veteran's claims for entitlement to service connection for colon cancer and liver cancer in order for the regional office to issue a supplemental statement of the case to address the medical information that was added to the Veteran's claims file. In addition, the Board remanded the Veteran's claim for entitlement to service connection for a seizure disorder in order for the regional office to obtain a medical opinion from a neurologist. Service Connection The Appellant contends that her husband's seizure disorder and colon cancer were a result of his military service. In order to establish service connection for the claimed disability, there must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 C.F.R. §§ 3.309. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(c), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. The following diseases are deemed associated with herbicide exposure under VA law: AL amyloidosis, Chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), Multiple myeloma, Non-Hodgkin's lymphoma, Parkinson's disease, early onset peripheral neuropathy, Porphyria cutanea tarda, Prostate cancer, Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(c). Notwithstanding the foregoing presumption provisions for herbicide exposure, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'd Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau, supra. Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where 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. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lastly, in order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for a seizure disorder, to include as secondary to exposure to asbestos or herbicide As to a current diagnosis, the Board notes that the Veteran's disability was diagnosed as a seizure disorder. As to the in-service incurrence, the Board notes that the Veteran's service treatment records are silent for any treatment or a diagnosis of a seizure disorder. In February 2013, the Veteran testified at a decision review officer informal hearing. The Veteran essentially testified that he experienced seizures while in service and did not know what was happening. As to the Appellant's lay statements, the Board notes that the Appellant has stated that she observed her husband having seizures in his sleep in 1970. In May 2022, a medical opinion was obtained. The Regional Office was directed to obtain an opinion from a neurologist, but the Regional Office obtained an opinion from a nurse practitioner. The Board is unable to use this medical opinion in its current analysis because the Regional Office did not substantially comply with the Board's remand directives. The Board notes that the May 2022 VA examiner did acknowledge the Veteran's wife's report of seizure like activity. The Board further notes that the examiner did not find that her description of what she witnessed was an inaccurate description of a seizure. The Board recognizes that the onset of the Veteran's disorder has been an important factor throughout this appeal; therefore, the Board has placed probative value on this aspect of the May 2022 VA examination. The Board has also reviewed the Veteran's medical treatment records. The Board notes that the Veteran first received a formal diagnosis for a seizure disorder in 1975. The Board also notes that there is some conflicting evidence regarding the onset of the Veteran's seizure disorder. In sum, the Board finds that service connection is warranted for the Veteran's seizure disorder. After a review of the record, the Board finds that the evidence, both positive and negative as to the issues of service connection for a seizure disorder is in relative equipoise. The Board acknowledges that certain chronic diseases, to include epilepsies, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service. Based on the lay statements from the from the Veteran and his wife, and after resolving all reasonable doubt in the Appellant's favor, the Board finds that service connection is warranted for the Veteran's seizure disorder. 2. Entitlement to service connection for colon cancer, to include as secondary to exposure to asbestos or herbicides As to a current diagnosis, the Board notes that the Veteran's disability was diagnosed as colon cancer. As to the in-service incurrence, the Board notes that the Veteran's records are silent for a diagnosis or any treatment for colon cancer. As to the Veteran's lay statements, the Board notes that the Veteran contended that his disability was due to his exposure to agent orange and asbestos. Turning to the medical evidence at hand, the Board notes that the regional office obtained a medical opinion from an oncologist in September 2021. After a review of the record, the examiner found that the Veteran's colon cancer was less likely as not related to his military service. The examiner stated that "two physicians reviewed the medical literature to discern if there is any relationship between rectal cancer and asbestos and/or agent orange; they were unable to find a modicum of support." The examiner stated that the first 2 published articles outright state there was no increase in the risk of colorectal cancer associated with asbestos exposure. The examiner stated that the third article states "the evidence is suggestive but not sufficient to infer a causal relationship between asbestos exposure and colorectal cancer." Lastly, the examiner stated that there is no direct evidence in the medical literature of a link between Agent Orange exposure and colon cancer. The Board has also reviewed the Veteran's medical history. After a review of the Veteran's records, the Board finds that the Veteran's records are silent for a medical opinion that has attributed his colon cancer to his exposure to agent orange or asbestos. The Board observes that colon cancer is not among the diseases that VA presumes to be incurred due to in-service exposure to an herbicide agent; however, the lack of availability of presumptive service connection does not preclude a Veteran from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In sum, the Board finds that entitlement to service connection for colon cancer, is not warranted. After a review of the record, the Veteran's STRs are silent for any diagnoses or treatment for symptoms related to colon cancer. The Veteran's symptoms have not been continuous since service separation and his cancer was not diagnosed within one year of service separation, but instead, many years following service separation. The Board also finds that the September 2021 VA opinion, which found that the Veteran's disability is not caused or related to his military service, is the most probative evidence of record. The Board has also reviewed the Veteran's medical records and the Veteran's records are silent for a medical opinion that has attributed his disability to his military service. Lastly, the Board has considered the Appellant and the Veteran's contentions; however, their contentions are outweighed by the findings of the VA examiner because the VA examiner has the medical training to provide an opinion regarding the etiology of the Veteran's disability. For the above stated reasons, the most persuasive evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for entitlement to service connection for colon cancer, must be denied. REASONS FOR REMAND 1. Entitlement to service connection for liver cancer, to include as secondary to exposure to asbestos or herbicides is remanded. In October 2021, a VA medical opinion was obtained to address this issue. The examiner found that the Veteran's liver cancer was less likely as not related to his military service. The examiner then went on to discuss the Veteran's colon cancer and did not provide a thorough and well-reasoned analysis regarding the Veteran's disability. Accordingly, the Board finds this opinion inadequate to decide this case. Thus, the Board finds that a remand is required to obtain a through and well-reasoned opinion as to the nature and etiology of the Veteran's disability. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.310; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion without supporting clinical data or other rationale does not provide the required degree of medical certainty). The matters are REMANDED for the following action: Assign an oncologist to determine the nature and etiology of the Veteran's liver cancer. The electronic claims file must be reviewed by the examiner. After a review of the claims file, the examiner should provide answers to the following questions: Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's liver cancer, had its onset in service or is caused by or related at least in part to her active service? Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's liver cancer is related to his asbestos and herbicide exposure during service? The VA examination reports must include a complete rationale for all opinions expressed. Romina A. Casadei Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Rescan, 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.