Citation Nr: 18132248
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 15-42 765A
DATE:	September 6, 2018
ORDER
Entitlement to service connection for residuals of colon cancer is denied.
Entitlement to service connection for a psychiatric disorder, claimed as secondary to residuals of colon cancer is denied.
Entitlement to service connection for tinnitus, to include claimed as secondary to residuals of colon cancer is denied.
Entitlement to service connection for a gastrointestinal disorder, to include claimed as secondary to residuals of colon cancer is denied.
Entitlement to service connection for lower abdomen pain, to include claimed as secondary to residuals of colon cancer is denied.
Entitlement to service connection for erectile dysfunction, to include claimed as secondary to residuals of colon cancer is denied.
Entitlement to service connection for scar of the left lower abdomen, to include claimed as secondary to residuals of colon cancer is denied.
FINDINGS OF FACT
1. The Veteran’s residuals of colon cancer are not attributable to incident or event of his period of service, to include as result of exposure to contaminated water at Camp Lejeune.
2. The Veteran has not demonstrated evidence of a current psychiatric disorder.
3. The Veteran’s tinnitus is not caused by or permanently made worse by a service-connected disease or injury; tinnitus is not attributable to incident or event of his period of service.
4. A gastrointestinal disorder is not caused by or permanently made worse by a service-connected disease or injury; a gastrointestinal disorder is not attributable to incident or event of his period of service.
5. The Veteran has not demonstrated evidence of current erectile dysfunction.
6. The Veteran’s scar of the left lower abdomen is not caused by or permanently made worse by a service-connected disease or injury; a left abdomen scar is not attributable to incident or event of his period of service.
CONCLUSIONS OF LAW
1. The criteria for entitlement to service connection for residuals of colon cancer have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017).
2. The criteria for entitlement to service connection for a psychiatric disorder, claimed as secondary to residuals of colon cancer have not been met. 38 U.S.C. §§ 1131, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).
3. The criteria for entitlement to service connection for tinnitus, to include claimed as secondary to residuals of colon cancer have not been met. 38 U.S.C. §§ 1131, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).
4. The criteria for entitlement to service connection for a gastrointestinal disorder, to include claimed as secondary to residuals of colon cancer have not been met. 38 U.S.C. §§ 1131, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).
5. The criteria for entitlement to service connection for lower abdomen pain, to include claimed as secondary to residuals of colon cancer have not been met. 38 U.S.C. §§ 1131, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).
6. The criteria for entitlement to service connection for erectile dysfunction, to include claimed as secondary to residuals of colon cancer have not been met. 38 U.S.C. §§ 1131, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).
7. The criteria for entitlement to service connection for scar of the left lower abdomen, to include claimed as secondary to residuals of colon cancer have not been met. 38 U.S.C. §§ 1131, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served in the United States Marine Corps Reserve with periods of active duty from October 1980 to May 1981 and from February 21, 1991 to February 25, 1991, including service at Camp Lejeune.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2014, June 2015 and January 2018 rating decisions issued by the RO. 
This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system.
The issue of entitlement to service connection for sleep apnea has been perfected, but not yet certified to the Board. The Board’s review of the claims file reveals that the Agency of Original Jurisdiction (AOJ) is still taking action on this issue. The Board will not act on this claim at this time, but it will be the subject of a subsequent Board decision, if otherwise in order.
Service Connection
Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. 
In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including malignant tumors, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309.
That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted, malignant tumors are chronic diseases. 38 U.S.C. § 1101. Therefore, section 3.303(b) is potentially applicable.
A veteran, or former reservist or member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987, shall be presumed to have been exposed during such service to the contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. The last date on which such a veteran, or former reservist or member of the National Guard, shall be presumed to have been exposed to contaminants in the water supply shall be the last date on which he or she served at Camp Lejeune during the period beginning on August 1, 1953 and ending on December 31, 1987. For purposes of this section, service at Camp Lejeune means any service within the borders of the entirety of the United States Marine Corps Base Camp Lejeune and Marine Corps Air Station New River, North Carolina, during the period beginning on August 1, 1953 and ending on December 31, 1987, as established by military orders or other official service department records. 38 C.F.R. § 3.307 (a)(7).
Contaminants in the water supply means the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene and vinyl chloride, that were in the on-base water-supply system located at United States Marine Corps Base Camp Lejeune during the period beginning on August 1, 1953 and ending on December 31, 1987. 38 C.F.R. § 3.307 (a)(7).
If a veteran, or former reservist or member of the National Guard, was exposed to contaminants in the water supply at Camp Lejeune during military service and the exposure meets the requirements of § 3.307(a)(7), certain diseases shall be service-connected when manifested to a degree of 10 percent or more at any time after service, even though there is no record of such disease during service, subject to the rebuttable presumption provisions of §3.307(d). 
Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to contaminated water exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). 
Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is also warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439 (1995).  
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b).
1. Entitlement to service connection for residuals of colon cancer
The Veteran contends that his colon cancer onset due to his exposure to the contaminated water supply while he was stationed at Camp Lejeune in 1981. Available service treatment records contain no documentation of complaints of or treatment for symptoms associated with colon cancer.
A May 2001 private treatment record documents that the Veteran had adenocarcinoma of the splenic flexure. The Veteran underwent exploratory laparotomy/left hemicolectomy/partial omentectomy. Thereafter, as reflected in a May 2002 private treatment record, the Veteran received chemotherapy for his colon cancer.
The October 2014 Report of VA examination documents the examiner’s opinion that the Veteran’s colon cancer was less likely as not caused by or a result of the Veteran’s exposure to the contaminated water supply at Camp Lejeune. The examiner explained that the Veteran was exposed to the contaminated water for a period of 113 days which was lower than the average duration of exposure of 18 months published in the studies of Camp Lejeune veterans. The examiner noted there were no records of treatment for the colon cancer prior to the surgical note in May 2001 and explained that there were no records detailing family, social or occupational history for a proper forensic evaluation.
The examiner explained that colorectal cancer was more common in men and could occur in younger adults, though chances increased after age 50 in adults that smoke, consume excessive alcohol, are overweight/obese and have had a prior cholecystectomy. The examiner concluded that the Veteran was exposed to the contaminated water at Camp Lejeune for less than four months and noted that there were two decades between exposure and disease onset. 
The examiner noted that the Veteran had a history of smoking and being overweight (obesity) which was presumed to have existed at the time of his cancer diagnosis. The examiner concluded that a review of the environmental and occupational exposure studies failed to illicit a significant correlation between chemicals contained in the Camp Lejeune water source and colon cancer to the level of certainty to support an “as likely as not” link.
In this case, the Veteran’s claimed colon cancer disability is not among the diseases presumed to be associated with exposure to contaminated water at Camp Lejeune. In addition, though the Veteran has current residuals of colon cancer, there is no evidence of record that shows that his colon cancer onset due to exposure to the contaminated water supply at Camp Lejeune. Rather, the evidence demonstrates that that the Veteran was exposed to the contaminated water at Camp Lejeune for less than four months and review of the environmental and occupational exposure studies failed to illicit a significant correlation between the chemicals contained in the Camp Lejeune water source and colon cancer to support an etiological relationship. 
In addition, there is no evidence of a malignant tumor in service. To determine that a chronic disease was shown in service, the disease identity must be established. 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1339. No examiner in service, or since, has established chronicity or an underlying chronic disease process in service. In sum, characteristic manifestations sufficient to identify the disease (malignant tumor) entity were not noted.  Additionally, there is no assertion of continuity of or evidence of a malignant tumor within one year of separation from service. Thus, service connection cannot be awarded on this presumptive basis. 38 U.S.C. § 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. § 3.303(b), 3.307, 3.309.
These conclusions are probative as they are based on facts presented by both the service treatment records and the assertions made by the Veteran at the time of the VA examination. Also, notably, there is no competent or credible evidence or opinion that suggests that there exists a medical relationship, or nexus, between the current residuals of colon cancer and the Veteran’s exposure to the contaminated water supply at Camp Lejeune.
The Veteran is not competent to link his residuals of colon cancer to service. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:
(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);
(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. 
Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran’s death).  
The Veteran is a lay person and is not competent to establish that his current residuals of colon cancer onset as a result of his exposure to the contaminated water supply at Camp Lejeune. The Veteran is not competent to offer an opinion as to etiology of any current residuals of colon cancer. The question regarding the etiology of such a disability is a complex medical issue that cannot to be addressed by a layperson. Jandreau, supra. 
The claim of entitlement to service connection for residuals of colon cancer must be denied. The preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
2. Entitlement to service connection for a psychiatric disorder and erectile dysfunction, to include claimed as secondary to residuals of colon cancer
The Veteran contends that he has a psychiatric disorder and erectile dysfunction that onset due to event or incident of his period of service or onset secondary to his residuals of colon cancer. The available service treatment records contain no complaints of, treatment for a psychiatric disorder or erectile dysfunction.
Subsequent to service, an October 2001 private treatment record documents the Veteran’s complaint that his energy level was low. The physician noted that he advised the Veteran that he may have been slightly depressed, probably related to his son. September 2016 and August 2017 VA treatment records reflect that the depression screen was negative for depression. There are no records documenting a diagnosis of erectile dysfunction.
The claims of service connection for a psychiatric disorder and erectile dysfunction must be denied. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. §§ 1110, 1131. Here, the Veteran has presented no evidence of, nor does probative evidence show that the Veteran has a current psychiatric disorder or erectile dysfunction. Thus, there can be no valid claims for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).
The Veteran was not afforded specific VA examination. On the facts of this case, however, examinations are not required. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  In this case, the claims do not meet these requirements for obtaining a VA medical opinion.  Because the weight of the evidence demonstrates no current psychiatric disorder or competent evidence of a suggestion between a service-connected disorder and erectile dysfunction, no examination is required.   
Additionally, as service connection is not established for residuals of colon cancer, the Board must also find that the claims of service connection for a psychiatric disorder and erectile dysfunction, claimed as secondary to a service-connected disability must be denied. Congress has specifically limited entitlement to service connection for disabilities that are proximately due to, or aggravated by service-connected disease or injury. 38 C.F.R. § 3.310. Without a service-connected residuals of colon cancer, award of service connection for a secondary disability (i.e., a psychiatric disorder or erectile dysfunction) predicated on an underlying service-connected residuals of colon cancer is simply not established.
The Veteran is a lay person and is not competent to establish that he has a current psychiatric disorder or erectile dysfunction that onset as a result of service or service-connected disability. The Veteran is not competent to offer an opinion as to etiology of any current psychiatric disorder or erectile dysfunction. The question regarding the etiology of such a disability is a complex medical issue that cannot to be addressed by a layperson. Jandreau, supra. 
The claims of entitlement to service connection for a psychiatric disorder and erectile dysfunction must be denied. The preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
3. Entitlement to service connection for tinnitus, to include claimed as secondary to residuals of colon cancer
The Veteran contends that his current tinnitus onset due to injury sustained during his period of service or onset secondary to his residuals of colon cancer. The available service treatment records contain no complaints of, treatment for tinnitus.
The May 2015 Report of VA examination documents the Veteran’s complaint of “intermittent bilateral tinnitus in the left ear” which occurred several times per week and lasted one to two hours per episode. He also complained that he experienced intermittent positional vertigo that onset three years earlier. During the examination, the Veteran became agitated with the audiologist and discontinued the examination.
Though the Veteran experiences intermittent bilateral tinnitus, there is no credible evidence of record that shows that his current intermittent bilateral tinnitus onset due to injury sustained during a period of service. 
Additionally, as service connection is not established for residuals of colon cancer, the Board must also find that the claim of service connection for tinnitus, claimed as secondary to a service-connected disability must be denied. As noted, the law limit entitlement to service connection for disabilities that are proximately due to, or aggravated by service-connected disease or injury. 38 C.F.R. § 3.310. Without a service-connected residuals of colon cancer, award of service connection for a secondary disability (i.e., tinnitus) predicated on an underlying service-connected residuals of colon cancer is simply not established.
The Veteran is a lay person and is not competent to establish that he has tinnitus that onset as a result of service or service-connected disability. The Veteran is not competent to offer an opinion as to etiology of any current tinnitus. The question regarding the etiology of such a disability is a complex medical issue that cannot to be addressed by a layperson. Jandreau, supra. 
The claim of entitlement to service connection for tinnitus must be denied. The preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
4. Entitlement to service connection for a gastrointestinal disorder and lower abdomen pain, to include claimed as secondary to residuals of colon cancer
The Veteran contends that he has a current gastrointestinal disorder or lower abdomen pain that onset due to event or incident of his period of service or onset secondary to his residuals of colon cancer. The available service treatment records contain no complaints of, treatment for a gastrointestinal disorder or lower abdomen pain.
A June 2002 private treatment record reflects that the Veteran had some esophageal spasm; otherwise, the upper gastrointestinal (GI) endoscopy was unimpressive. A June 2013 private treatment record reflects that the Veteran had a normal appetite and experienced no heartburn. There was no evidence of abdominal tenderness. A March 2015 private treatment record documents the Veteran’s report that he continued to have daily diarrhea, sometimes loose. He did not complain of constipation, melena or hematochezia. On examination, his abdomen was nondistended and nontender. A May 2017 private treatment record documents that the Veteran complained of symptoms attributable to irritable bowel syndrome (IBS). He complained that he experienced heartburn and reflux. He denied experiencing any nausea.
An August 2017 VA treatment record reflects that the Veteran received routine follow-up treatment for his history of colon cancer, status post bowel resection. He denied having any abdominal pain, constipation, diarrhea or rectal bleeding. He did not have dysuria, frequency, urgency or hematuria. On physical examination, his abdomen was obese, soft and non-tender. Bowel sounds were present. There was no guarding, rigidity or organomegaly.
To the extent that the Veteran experiences a gastrointestinal disorder or lower abdomen pain independent of his residuals of colon cancer, there is no credible evidence of record that shows that any current gastrointestinal disorder or lower abdomen pain onset due to event or incident of the Veteran’s period of service. 
The Veteran was not afforded specific VA examination. On the facts of this case, however, examinations are not required. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  In this case, the claims do not meet these requirements for obtaining a VA medical opinion.  Because the weight of the evidence demonstrates no gastrointestinal disorder or lower abdomen pain independent of the residuals of colon cancer that onset due to event of service, an examination is not required.   
Additionally, as service connection is not established for residuals of colon cancer, the Board must also find that the claims of service connection for a gastrointestinal disorder or lower abdomen pain, claimed as secondary to a service-connected disability must be denied. As noted, the law limits entitlement to service connection for disabilities that are proximately due to, or aggravated by service-connected disease or injury. 38 C.F.R. § 3.310. Without a service-connected residuals of colon cancer, award of service connection for a secondary disability (i.e., a gastrointestinal disorder or lower abdomen pain) predicated on an underlying service-connected residuals of colon cancer is simply not established.
The Veteran is a lay person and is not competent to establish that he has a gastrointestinal disorder or lower abdomen pain that onset as a result of service or service-connected disability. The Veteran is not competent to offer an opinion as to etiology of any current gastrointestinal disorder or lower abdomen pain. The question regarding the etiology of such a disability is a complex medical issue that cannot to be addressed by a layperson. Jandreau, supra. 
The claims of entitlement to service connection for a gastrointestinal disorder and lower abdomen pain must be denied. The preponderance of the evidence is against the claims and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
5. Entitlement to service connection for scar of the left lower abdomen, to include claimed as secondary to colon cancer
The Veteran contends that he has a current surgical scar of the left lower abdomen that was incurred due to event or incident of his period of service or that is secondary to his residuals of colon cancer. The available service treatment records contain no complaints of, treatment for a surgical scar.
A May 2003 private treatment record reflects that the incision of the left upper quadrant was well healed.  An August 2017 VA treatment record reflects that the surgical scar was well-healed and non-tender.
Though the Veteran has a current well-healed scar in the left upper quadrant, there is no credible evidence of record that shows that his current surgical scar was incurred due to event or incident of his period of service. 
The Veteran was not afforded specific VA examination. On the facts of this case, however, examination is not required. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  In this case, the claims do not meet these requirements for obtaining a VA medical opinion.  Because the weight of the evidence demonstrates no evidence of a current surgical scar that was incurred due to event or incident of the Veteran’s period of service, no examination is required.   
Additionally, as service connection is not established for residuals of colon cancer, the Board must also find that the claim of service connection for a surgical scar, claimed as secondary to a service-connected disability must be denied. The Veteran is a lay person and is not competent to establish that he has a surgical scar of the left lower abdomen that onset as a result of service or service-connected disability. The Veteran is not competent to offer an opinion as to etiology of any current surgical scar. The question regarding the etiology of such a disability is a complex medical issue that cannot to be addressed by a layperson. Jandreau, supra. 
The claim of entitlement to service connection for a surgical scar must be denied. The preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
 
Vito A. Clementi
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	                            G. Jackson, Counsel 

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