Citation Nr: 23001096 Decision Date: 01/09/23 Archive Date: 01/09/23 DOCKET NO. 18-19 435 DATE: January 9, 2023 ORDER Service connection for adenocarcinoma of the colon status post left hemicolectomy (claimed as colon cancer) is denied. FINDING OF FACT The Veteran's colon cancer did not have its onset during service, and is not otherwise related to service, to include as due to his presumed exposure to Agent Orange. CONCLUSION OF LAW The criteria for service connection for adenocarcinoma of the colon status post left hemicolectomy (claimed as colon cancer) have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 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 February 1969 to February 1971, including service in the Republic of Vietnam from May 1970 to February 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in June 2016 and May 2019 decisions for further development. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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 Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The term "active military, naval, or air service" includes active duty, any period of active duty for training during which the individual was disabled or died from a disease or injury incurred in or aggravated in the line of duty, and any period of inactive duty training during which the individual was disabled or died from an injury incurred in or aggravated in the line of duty. 38 U.S.C. § 101(24). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by an established service-connected disability. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). A veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during such service to certain herbicide agents (e.g., Agent Orange). In the case of such a veteran, service incurrence for the following diseases will be presumed if they are manifest to a compensable degree within specified periods, even if there is no record of such disease during service: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes, Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and sub-acute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, and trachea), and soft-tissue sarcomas. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Effective August 31, 2010, 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), is included as a disease associated with herbicide exposure under 38 C.F.R. § 3.309(e). (Under 38 C.F.R. § 3.309(e), the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of Ischemic heart disease. 38 C.F.R. § 3.309(e) (Note 3). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. 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). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also 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."). Service connection for adenocarcinoma of the colon status post left hemicolectomy (claimed as colon cancer) The Veteran contends that he has colon cancer that is related to his service, to include herbicide exposure as well as treatment for gastroenteritis and dizzy spells or is alternatively secondary to medication taken for his service-connected posttraumatic stress disorder (PTSD). See, e.g., the Veteran's April 2019 Informal Hearing Presentation; see also the Veteran's claim for VA benefits dated September 2015. The Veteran's service treatment records document treatment for gastroenteritis in December 1970 and for dizzy spells in January 1971. The remainder of his service treatment records are silent for any complaints of or treatment for a gastrointestinal disorder. Also, his service personnel records verify his service in Vietnam from May 1970 to February 1971. Hence, the Veteran is presumed to have been exposed to herbicides in service. See 38 U.S.C. § 1116(f). Additionally, he has received treatment for adenocarcinoma of the colon status post left hemicolectomy and VA treatment records indicate he was diagnosed with colon cancer in 2013. The Board notes that VA regulations state that certain diseases associated with in-service herbicide exposure may be presumed service connected. See 38 C.F.R. §§ 3.307, 3.309(e). However, the Veteran's colon cancer is not among the listed conditions for allowing presumptive service connection. In any event, the Veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In May 2019, the Board noted that there was no medical opinion of record determining whether the Veteran's treatment for colon cancer is related to his service, to include the treatment for gastroenteritis and dizzy spells as well as his conceded in-service herbicide exposure. The Board also noted that the Veteran contends that he received treatment for shingles in service at a military hospital in Long Binh Post in Vietnam. See May 2017 Statement in Support of Claim. The Veteran further contends that the in-service treatment for shingles caused his colon cancer. See April 2019 IHP. The Board observed that the medical treatment records on file did not contain any instances of in-service treatment for shingles and no attempt had been made by the agency of original jurisdiction (AOJ) to obtain the outstanding records. The Board found that the claim should be remanded to obtain a new VA medical opinion and attempt to obtain outstanding treatment records, to include an etiological opinion as to whether the Veteran's colon cancer is related to any in-service treatment for shingles. Additionally, the Board noted that a VA medical opinion was obtained in February 2016 regarding whether the medication taken for the Veteran's PTSD (quetiapine) caused the Veteran's colon cancer. In the February 2016 opinion, the VA examiner noted that the Veteran was diagnosed with colon cancer in 2013 and that he was taking quetiapine at that time. After review of the Veteran's medical history and medical literature, the VA examiner concluded that there is no evidence that quetiapine causes colon cancer. However, the examiner did not provide an opinion as to whether it is at least as likely as not that the Veteran's colon cancer was aggravated by the medication. Therefore, the Board found that on remand, an addendum opinion should be obtained as to whether the Veteran's colon cancer was aggravated by medication taken for the PTSD. Pertaining to the outstanding service treatment records from Long Binh, Vietnam, the VA sent two final attempt letters to the Veteran in November 2019 and January 2020, stating that all efforts to search for the records were exhausted but no records were located and were therefore unavailable for review. Post-remand, the Veteran was afforded a VA examination and addendum medical opinion in November 2019. The VA examiner opined that the Veteran's colon cancer and residuals are less likely than not related to his service, to include his presumed exposure to herbicides in Vietnam as well as his treatment for gastroenteritis in December 1970 and dizzy spells in January 1971, as neither the VA list of presumed diseases associated with Agent Orange (AO) Exposure nor the medical literature of record support the contention that colon cancer is associated with AO exposure and/or sporadic episodes of gastroenteritis, such as the Veteran reportedly experienced while serving in the Republic of Vietnam. The VA examiner further opined that the Veteran's colon cancer was less likely than not caused or aggravated by medication taken for his service-connected PTSD as the medical literature referenced in the rationale did not support the notion that colon cancer is either caused and/or aggravated by medications used for PTSD. See November 2019 C&P Exam. The examiner stated that risk factors for colorectal cancer (CRC) include inflammatory bowel disease and history of CRC in first-degree relatives; and increased BMI, red meat intake, cigarette smoking, low physical activity, low vegetable consumption, and low fruit consumption are associated with moderately increased risk of CRC. Id. The VA examiner held that regardless of an established baseline, the Veteran's colon cancer was less likely than not aggravated by medications used for PTSD. Further, the VA examiner also stated in the medical opinion that after a review of the medical treatment records in the file, there is no documentation showing a diagnosis of shingles for the Veteran while he was on active duty. Therefore, a medical opinion for nexus of causality is moot. While the Board acknowledges that the Veteran asserts that Veteran's colon cancer was incurred in service, due to Agent Orange exposure, or secondarily due to the medications he took for his PTSD, the Veteran has not shown he possessed the specialized training sufficient to render such an opinion. Although lay witnesses are competent to provide evidence regarding matters that can be perceived by the senses, they are not competent to provide an opinion regarding etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology). As such, the Board gives more probative weight to the VA examiner's medical opinion than the Veteran's lay contentions. The most probative medical evidence of record shows that the Veteran's colon cancer is less likely than not related to service, to include due to exposure to Agent Orange herbicides. The Veteran's service treatment records contain no indications of treatment, complaints of diagnoses of colon cancer, and there is no credible evidence linking the condition to service. Accordingly, the claim for service connection for colon cancer is denied. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for colon cancer is warranted. Rather, the evidence persuasively weighs against a grant of service connection. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. 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). STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.