Citation Nr: 0402565 Decision Date: 01/28/04 Archive Date: 02/05/04 DOCKET NO. 03-05 758 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for residuals of colon cancer. REPRESENTATION Veteran represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD A. Jaeger, Associate Counsel INTRODUCTION The veteran served on active duty from June 1964 to May 1967, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. All information and evidence necessary for an equitable disposition of the issue decided herein have been obtained. 2. The veteran is presumed to have been exposed to herbicides coincident with service in the Republic of Vietnam. 3. Colon cancer is not a disease presumptive to herbicide- exposed veterans. 4. Colon cancer was not present in service or manifested within one year of the veteran's discharge from service, nor is it etiologically related to service. CONCLUSION OF LAW Colon cancer was not incurred in or aggravated by active service, and its incurrence or aggravation during such service may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (2000), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), and its implementing regulations, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2003), are applicable to the veteran's claim. The Act and the implementing regulations provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. With respect to VA's duty to notify, in January 2002, after receipt of the veteran's initial claim of entitlement to service connection for colon cancer and prior to initial adjudication of that question, the RO sent a letter to the veteran explaining his role in the claims process and asking him to submit certain information. In accordance with the requirements of the VCAA, the letter informed the veteran as to the legal requirements for his claim, and what evidence and information VA would be obtaining. The letter explained that VA would obtain records in the custody of the Federal government and would make reasonable efforts to help him get evidence such as private medical records if he provided VA with sufficient information to identify the custodian of any records and with release for such private records. The RO specifically advised the veteran that evidence of a current disability and a nexus between such and service was necessary, and invited him to submit any nexus evidence from a private physician. Additionally, in the May 2002 rating decision and February 2003 statement of the case, the RO provided the veteran with notice of the pertinent regulations governing the veteran's service connection claim, the evidence VA considered in connection with his claim and the reasons and bases for the denial. Thus, the veteran has been afforded appropriate notice under the VCAA. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board acknowledges that the January 2002 letter requested a response within 60 days. That letter also indicated that the veteran had up to one year to submit the requested information and/or evidence, in compliance with 38 U.S.C.A. § 5103(b). To the extent this language was misleading, see Paralyzed Veterans of America, et. al. v. Secretary of Department of Veterans Affairs (PVA), 345 F.3d 1334 (Fed. Cir. 2003), the Board emphasizes that, in any case, more than one year has passed since the date of the VCAA letter such that no prejudice has resulted. Also, see Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 701, 117 Stat. 2651, ___ (Dec. 16, 2003) (to be codified at 38 U.S.C. § ____). With respect to VA's duty to assist the veteran, the Board emphasizes that the veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to his claim. The claims file already contains the veteran's service records as well as private records submitted by the veteran in connection with various VA claims. Although the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary, see 38 C.F.R. § 3.159(c)(4)(i), in this case, a VA examination to determine whether the veteran's colon cancer is etiologically related to service would serve no useful purpose. Any current medical opinion linking such disability to the veteran's military service would necessarily be based upon history provided by the veteran decades following his discharge from service since there is no medical evidence of colon disability, to include cancer for many years after service and further since there is no competent medical evidence even suggesting such causal connection. Thus, based on the facts of this case, VA has done everything reasonably possible to assist the veteran and the appeal may be adjudicated. II. Service Connection for Colon Cancer In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in the active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests a malignant tumor to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). On December 27, 2001, the Veterans Education and Benefits Expansion Act of 2001 was enacted. See Pub. L. No. 107-103, 115 Stat. 976 (2001). This law made substantive changes to 38 U.S.C.A. § 1116 pertaining to presumption of service connection for diseases associated with exposure to certain herbicide agents. Effective January 1, 2002, a veteran who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicides. See 66 Fed. Reg. 23,168 (May 8, 2001) (codified at 38 C.F.R. §§ 3.307, 3.309 (2002)). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). The following diseases shall be service connected if the veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, and provided further that the requirements of 38 C.F.R. § 3.307(d) are satisfied: chloracne or other acneform disease consistent with chloracne, Hodgkin's disease, type II diabetes mellitus, multiple myeloma, non- Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, certain respiratory cancers, and soft tissue sarcoma. 38 C.F.R. § 3.309(e). VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 61 Fed. Reg. 41,4421 (1996). VA's Secretary has specifically determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for cancers of the gastrointestinal tract, including colon cancer. 68 Fed. Reg. 27,630, 27,639 (May 20, 2003). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The veteran contends that his colon cancer was caused by exposure to herbicides, to include Agent Orange, while serving in Vietnam. As such, he contends that he is entitled to presumptive service connection. Although the veteran is shown to have served in Vietnam and is therefore presumed to have been exposed to herbicides, as noted above, a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era, including Agent Orange, is not warranted for cancers of the gastrointestinal tract, including colon cancer. 68 Fed. Reg. 27,630, 27,639 (May 20, 2003). Therefore, the veteran is not entitled to presumptive service connection for residuals of colon cancer. The veteran is not precluded from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). In this case, however, there is no competent evidence to support a finding of direct causation. The relevant medical evidence of record includes the veteran's service medical records, treatment records from B. Stufflebam, M.D., a private physician, from June 1996 to June 2001, and treatment records from Barnes-Jewish St. Peters Hospital for February 1997. First, service medical records demonstrate no complaints or treatment for colon discomfort or pain and no diagnoses of colon cancer. There are also no medical records from the year following the veteran's discharge that demonstrate treatment for colon problems, to include any tumor of the colon. In fact, the first record of treatment for colon cancer appears in February 1997, approximately 30 years following the veteran's discharge. The private treatment records from Dr. Stufflebam and the Barnes-Jewish St. Peters Hospital demonstrate that the veteran had surgery to remove an adenocarcinoma tumor from his colon in February 1997and underwent chemotherapy from April to August 1997. The private treatment records are silent as to the etiology of the cancer and do not suggest any in-service manifestations or link to service. The evidence of a nexus between herbicide exposure and the veteran's colon cancer is thus limited to the veteran's own statements. He has asserted such based on a belief that he is entitled to presumptive service connection. He does not argue that his symptoms began during service and has not identified any competent medical evidence relating colon cancer to herbicide exposure or other incident of service. Instead, he relies on the presumptive provisions which, as discussed above, are not applicable in this case. The veteran's own statements are not competent evidence since as a layperson he is not qualified to render an opinion concerning medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In light of these circumstances, specifically the absence of any competent medical evidence of colon cancer during service or for many years thereafter, and the complete absence of any competent evidence suggesting a causal connection exists, the Board must conclude that service connection is not warranted for the veteran's colon cancer. The Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the veteran's claim, that doctrine is not applicable. ORDER Entitlement to service connection for colon cancer is denied. ____________________________________________ J. M. Daley Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2