Citation Nr: 22046239 Decision Date: 08/16/22 Archive Date: 08/16/22 DOCKET NO. 19-22 620 DATE: August 16, 2022 ORDER Service connection for colon cancer is denied. FINDING OF FACT The Veteran's colon cancer is not shown to be causally or etiologically related to his military service, to include exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for colon cancer, to include as due to exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1968 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office in April 2018. In April 2022, the Veteran and his wife testified before the undersigned at a hearing before the Board. A transcript of that hearing has been associated with the record. Service Connection Service connection will be granted for a current disability that results from an injury or disease incurred in, or aggravated by, active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). The claimant will be given the benefit of the doubt as to any issue material to the determination of a matter when there is an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). In this case, the Veteran served in the Republic of Vietnam while on active duty and thus, exposure to herbicide agents is conceded. For a Vietnam veteran, even though there is no record of the disease during service, certain diseases are presumed to be due to service, if a veteran was exposed to an herbicide agent during active military, naval, or air service and the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Notwithstanding any evidentiary presumption relating to service connection, a claimant may establish service connection for a disability based upon adequate evidence of actual causation. 38 U.S.C. § 1113(b); see also Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran asserts that he developed colon cancer as a result of his in-service exposure to herbicide agents. His service treatment records are silent for any complaint, diagnosis, or treatment for colon cancer. The record shows a post-service diagnosis of the condition in February 2002. In support of his claim, the Veteran submitted a copy of a discussion of a study in Italy which showed a higher risk of cancer in persons exposed to dioxins. In June 2019, the Veteran underwent a VA examination. At that time, the examiner concluded that it was less likely than not that the Veteran's colon cancer was due to military service, to include his in-service herbicide exposure. In support of this conclusion, he explained that the lifetime incidence of colorectal cancer in average risk patients in the United States is 5 percent, or 1 in 20 individuals. The incidence of colorectal cancer is 25 percent higher in men than in women. Besides gender, genetic factors are important risks increasing the likelihood of developing colorectal cancer. Additional risk factors include obesity, diabetes mellitus, diet and, significantly, smoking. Although the Veteran reported no family history of colorectal cancer, the fact that he was a male, overweight, and had a history of smoking, when combined with a 5 percent average risk of developing colon cancer during his lifetime, increased his risk of developing colon cancer. The examiner also addressed the Italy study, which suggested an increase in rectal cancer in a population which was exposed to dioxin in 1976 in that country, and followed for 20 years. However, the increased mortality risk was seen only in rectal cancer and not in other digestive cancers, including colon cancer, where no statistically significant increase in mortality was seen. The examiner then cited studies by the U.S. National Academy of Science, Engineering and Medicine which addressed herbicide agent exposure and certain cancers and cancer precursors. A November 2018 update showed insufficient scientific and clinical evidence to establish an association between herbicide agent exposure and colorectal cancer. Rather, in over 24,000 individuals with and without herbicide agent exposure, the incidence of colon cancer was similar to that expected in the general population. Thus, no nexus to service existed. Based on this evidence, the claim must be denied. The Board accords great probative weight to the opinion proffered by the June 2019 VA examiner, which found no nexus between the Veteran's colon cancer and service. The examiner provided a well-supported rationale, relying on and citing to the records reviewed. Moreover, in concluding that the Veteran developed colon cancer as a result of non-service-related factors, he offered a clear conclusion with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Notably, there is no contrary medical opinion of record. To the extent that the Veteran himself asserts that his colon cancer is the result of his military service, to include his conceded exposure to herbicide agents, the Board does not question the Veteran's sincerity in his belief that there is a correlation. While he is certainly competent to provide information regarding symptoms and a medical history, there is no indication that he possesses the requisite medical training or expertise necessary to render him competent to offer evidence on matters such as a medical diagnosis or causation. See Layno v. Brown, 6 Vet. App. 465 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). As such, the Board accords his statements regarding the nature and etiology of his colon cancer no probative weight. Even if the Veteran was competent to provide an etiological opinion, which laypersons are able to do in some instances, the Board finds that the reasoned conclusion of the VA examiner is more probative than the Veteran's assertions. The medical professional has the training, experience, and expertise that the Veteran is not shown to have. As such, his opinion is outweighed by the opinions provided by the VA examiner. The Board notes that, in an August 2019 letter, the Veteran explained that the copy of the Italy study came from Dr. R.M., his former brother-in-law, a retired Army colonel and doctor. The Veteran asserted that Dr. R.M. stated that colon cancer was related to service on the ground in the Republic of Vietnam. In June 2020, VA asked the Veteran to provide additional medical evidence and/or medical opinion from Dr. R.M. which addressed this possible link. VA received no response to this letter. Additionally, in support of his claim, the Veteran submitted a copy of a May 2010 Board decision addressing a different veteran's claim of entitlement to service connection for colon cancer due to herbicide agent exposure. Prior Board decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law. 38 C.F.R. § 20.1303; McDowell v. Shinseki, 23 Vet. App. 207, 228 (2009). Here, the May 2010 decision is a remand by the Board to allow for a medical opinion to address a possible link between that veteran's colon cancer and herbicide agent exposure. Thus, it has no probative value in the present case, as it was based on a different evidentiary record. Accordingly, the Board finds that the evidence is persuasively against the Veteran's claim of service connection for colon cancer. As the evidence persuasively weighs against the claim, the doctrine of reasonable doubt does not apply. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claim is denied. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, 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.