Citation Nr: 24010331 Decision Date: 03/04/24 Archive Date: 03/04/24 DOCKET NO. 17-55 699 DATE: March 4, 2024 ORDER Entitlement to service connection for colon cancer residuals as a result of herbicide agent exposure, on the basis of substitution, is denied. FINDING OF FACT The Veteran's colon cancer is not etiologically related to his service, to include as a result of herbicide agent exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for colon cancer residuals as a result of herbicide agent exposure, on the basis of substitution, are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from November 1964 to November 1967. He died in June 2020. The Appellant is the surviving spouse and was substituted in March 2022. See VA Memorandum, March 31, 2022; VA Notification Letter, April 1, 2022. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision of the Department of Veterans Affairs' (VA) Veterans Benefits Administration (the agency of original jurisdiction (AOJ)), which denied service connection for colon cancer residuals. The issue was previously before the Board in March 2023 and remanded for further development. Specifically, the AOJ was directed to request and associate any treatment records from healthcare providers who provided the Veteran treatment for colon cancer; and obtain a medical opinion clarifying the nature and etiology of the Veteran's colon cancer, to include in-service herbicide agent exposure regardless of the fact that such association may not be presumed. A review of the record reflects substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The matter has been returned to the Board for further appellate proceedings. Duties to Notify and Assist Neither the Appellant nor her representative have raised any concerns with VA's duties to notify or assist with regard to the issue(s) on appeal. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran, the Appellant or obtained on his/her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to service connection for colon cancer residuals as a result of herbicide agent exposure, on the basis of substitution, is denied. Prior to the Veteran's death, he asserted that his colon cancer was due to his military service, to include his exposure to herbicide agents. Legal Criteria Generally, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). Colon cancer is not listed as being associated with herbicide agent exposure for purposes of the presumption. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). A non-presumptive disease may still be entitled to service connection on a direct basis if the medical evidence supports a relationship between that disease and exposure to an herbicide agent. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). While on appeal, the Honoring our Pact Act (PACT Act) 2022 was enacted on August 10, 2022. The PACT Act extended the presumed conditions listed under 38 C.F.R. § 3.309(e). See Honoring our PACT Act of 2022, Pub. L. No. 117-168 (August 10, 2022). Colon cancer was not included, and therefore, service connection on a presumptive basis is not available in this case. Analysis First, prior to the Veteran's death he did not contend, nor does the evidence show, that his colon cancer began during or within one year of separation from active. A review of his service treatment records (STRs) confirms this. At no time during active service did he complain of or seek treatment for any symptoms related to a colon condition. He reported no health problems regarding his colon at separation from service. He was diagnosed with colon cancer and underwent a colectomy in 1996 and was in remission with some residuals since that time. Based on the medical and lay evidence of record, a continuity of symptoms has not been shown based on the clinical and lay evidence, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307 (a)(3). As to nexus, in 2016, the appellant provided a positive nexus opinion from his private provider, Dr. K.C.H., who stated that the Veteran was a patient for over 30 years and his problems all appear to be related to Agent Orange exposure. See Private Treatment Record, October 17, 2016. Dr. K.C.H. explained that it was a well-known fact that colon cancer is sequelae of exposure to Agent Orange. However, Dr. K.C.H. did not reference any specific studies that associate colon cancer with exposure to herbicide agents, and as previously noted, colon cancer is not a condition presumed associated with herbicide agent exposure by VA. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions). In response to the March 2023 remand directives, a VA etiological opinion was obtained in August 2023. The clinician provided both positive and negative nexus opinions. See VA Medical Opinion Disability Benefits Questionnaire (DBQ), August 23, 2023. The rationale provided for the positive opinion was that the Veteran had colon cancer symptoms in service. The rationale provided for the negative opinion was that the most common cause of colon cancer are high red meat consumption, being overweight, alcohol consumption, and smoking tobacco. In an addendum opinion, the clinician noted that the medical opinion should have been negative because the Veteran's STRs were silent for colon symptoms in service. See VES Addendum to Provider, October 2, 2023. The clinician explained that the Veteran's medical records did not support a finding that his colon cancer residuals were caused by his military service. The Board has considered the Veteran and Appellant statements regarding the relationship between the Veteran's colon cancer and his active service. However, in this case, neither the Veteran nor the Appellant are competent to testify regarding the etiology of the Veteran's colon cancer. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The diagnosis and evaluation of such condition require the expertise of a qualified medical professional. Therefore, the unsubstantiated statements made by the Veteran or the Appellant are found to lack competency. Unfortunately, the evidence of record does not establish a nexus for the condition on a direct basis. In conclusion, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection is not warranted for colon cancer residuals. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, the claim for service connection for colon cancer residuals as a result of herbicide agent exposure, on the basis of substitution, is denied. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Camille NeSmith, 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.