Citation Nr: 0313849 Decision Date: 06/25/03 Archive Date: 06/30/03 DOCKET NO. 00-16 315A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for small bowel cancer. 2. Entitlement to service connection for cirrhosis of the liver with chronic hepatitis. REPRESENTATION Appellant represented by: Robert B. Lamb, Esquire WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Francesca Craft, Associate Counsel INTRODUCTION The veteran served on active duty from April 1964 to April 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2001 rating decision by the Department of Veterans Affairs (VA) regional office (RO) in Salt Lake City, Utah. The RO certified the following issues: (1) entitlement to service connection for post-traumatic stress disorder, (2) entitlement to service connection for residuals of a gunshot wound to the right knee, and (3) entitlement to service connection for benign prostatic hypertrophy secondary to Agent Orange. The provisions of 38 C.F.R. § 19.35 (2002) specifically provide that certification is for administrative purposes and does not serve to either confer or deprive the Board of jurisdiction of an issue. It is the Board's responsibility to determine its own jurisdiction. 38 U.S.C.A. §7104 (West 2002); 38 C.F.R. § 20.203 (2002). In this regard, the Board notes that the veteran appeared for a Board hearing in January 2003. At that time, he indicated that the only two issues he wished to proceed with on appeal were service connection for small bowel cancer and service connection for cirrhosis of the liver with chronic hepatitis. The veteran indicated that he wished to withdraw his claim for service connection for post-traumatic stress disorder, which has been memorialized in the written transcript (Transcript (T.) at p. 1). Accordingly, this issue is no longer before the Board. 38 C.F.R. § 20.204 (2002). FINDINGS OF FACT 1. The veteran has been adequately notified of all pertinent laws and regulations and of the evidence necessary to establish his claim; all reasonable development necessary for the disposition of the instant case has been completed. 2. Cirrhosis of the liver with chronic hepatitis developed as a consequence of exposure to Agent Orange during military service. 3. Small bowel cancer developed as a consequence of exposure to Agent Orange during military service. CONCLUSIONS OF LAW 1. Small bowel cancer was incurred in active service. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 1110 (West 2002); 38 C.F.R. § 3.303 (2002). 2. Cirrhosis of the liver with chronic hepatitis was incurred in active service. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 1110 (West 2002); 38 C.F.R. § 3.303 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background Initially, the Board notes that the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA) on November 9, 2000. See Pub. L. No. 106-475, 114 Stat. 2096 (2000), codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). The new legislation provides for, among other things, notice and assistance to claimants under certain circumstances. VA has issued final rules to implement the provisions of the VCAA. See 66 Fed. Reg. 45,620 (August 29, 2001), codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). These regulations state that the provisions merely implement the VCAA and do not provide any additional rights. 66 Fed. Reg. at 45,629. Accordingly, in general where the record demonstrates that the statutory mandates have been satisfied, the regulatory provisions likewise are satisfied. Where laws or regulations change after a claim has been filed or reopened and before the administrative or judicial process has been concluded, the version most favorable to the appellant will apply unless either Congress provided otherwise or Congress has permitted the Secretary of Veterans Affairs to do otherwise and the Secretary has done so. See Karnas v. Derwinski, 1 Vet. App. 308 (1991) Review of the claims folder reveals compliance with the statutory and regulatory provisions sufficient to proceed on the claim currently before the Board. That is, by way of the November 2001 rating decision and the April 2002 Statement of the Case, the RO provided the veteran with the applicable law and regulations and gave notice as to the evidence generally needed to substantiate his claim. The RO sent a letter to the veteran dated in September 2001 that advised him of what the responsibilities of the VA and the veteran are in developing the record. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The veteran has not identified any additional evidence that has not been associated with the record. Review of the record does not suggest the existence of any outstanding Federal government record or any other records that could substantiate the veteran's claim. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. For the showing of chronic disease in service, a combination of manifestations is required, sufficient to identify the disease entity, and observation is required, sufficient to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii) (2002). Specifically, the following diseases shall be service-connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and soft-tissue sarcomas. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). The Federal Circuit has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The rationale employed in Combee also applies to claims based on exposure to Agent Orange. Brock v. Brown, 10 Vet. App. 155 (1997). A review of the record reveals that the veteran underwent a pre-induction examination in December 1963, which indicated a normal clinical evaluation. In January 1966, the veteran presented with a five-day history of progressive right upper quadrant pain that had become more constant and was moderately severe. He denied any change in bowel movement color or urine color. He had some costovertebral angle tenderness and right upper quadrant tenderness on examination. The provisional diagnosis was rule out cholecystitis, choleliathiasis. A consultation indicated that the right upper quadrant tenderness was bothersome, but on the basis of (1) lack of gastrointestinal symptoms and (2) upper respiratory infection and predominant pleuritic quality, the consulting physician felt that Bornholm's disease (epidemic pleurodynia) was the best diagnosis, with gallbladder disease and right renal disease to be ruled out. Hepatitis was also to be ruled out. A request for a gallbladder series shows a provisional diagnosis of hepatitis non-icteric. The veteran was hospitalized for approximately two weeks. All laboratory tests were normal except for eosinophile count. All x-rays were interpreted to be normal. No disease was found. At discharge, the pain persisted, but had lessened. He returned to duty without medication. The veteran underwent a separation physical examination in April 1966, which was determined to be a normal clinical evaluation. A letter from C.H.N., M.D., dated in May 2002, indicates that he treated the veteran in his office from 1966 to 1975. Dr. N. states that he treated the veteran for abdominal pain and liver tenderness. VA outpatient treatment records reflect that in May 1998 the veteran presented with complaints of loose stools and quite a bit of diarrhea, a little pain around his rectum, and rectal bleeding. He returned approximately one month later with complaints of mid-epigastric pain. Gastrointestinal and gastroesophageal work-ups were done, which revealed gastritis and duodenitis. The veteran reported in late June that he had pain in the epigastrium moving rapidly into the right upper quadrant and he felt sick for four days and was unable to eat for three days. He denied any history of jaundice. Past medical history was significant for kidney stones and gout. Examination showed right upper quadrant tenderness with guarding. No masses were palpable. No hernias were noted. The assessment was probable cholecystitis. Private medical records show that the veteran sought treatment from A.R.S., D.O. in May 2001. He presented with complaints of extreme abdominal pain over the last three days causing nausea and vomiting. He also reported looser and darker stools and feeling lightheaded. The veteran was admitted to D. Hospital and Medical Center, where a colonoscopy was done. Assessment of the colonoscopy revealed an incomplete bowel obstruction, most likely a carcinoid with metastases into the mesentery. Subsequently, the veteran underwent an exploratory laparotomy, resection of terminal ileum and colon with liver biopsy, true cut needle liver biopsy, and insertion of right subclavian catheter. The postoperative diagnosis was possible intraabdominal carcinoid, malnutrition, cirrhosis. Biopsies were done, which confirmed the presence of cirrhosis without definite evidence of etiology. VA outpatient records show that the veteran sought an evaluation of his tumor in November 2001. The veteran indicated a history of chronic abdominal pain and diarrhea. Notes reflect that the provider explained to the veteran that the carcinoid tumor was most likely what was giving him flushing and sweating symptoms; these symptoms become evident once the tumor has metastasized to the liver. It was further explained that the treatment modality was a surgical resection; however, for metastatic lesions, octreotide would control the symptoms, but would have no effect on tumor growth. The doctor also indicated that chemotherapy and radiation have no role in the treatment of the disease. P.J.S., M.D. wrote in February 2002 that he followed the veteran in the Hematology/Oncology clinic at the VA Medical Center in Salt Lake City, Utah. Dr. S. states that the veteran was diagnosed with a Carcinoid Tumor with liver metastases in May 2001. He indicated that there is also evidence of liver cirrhosis possibly secondary to hepatitis B contracted while he was in the service. He concluded that the veteran was unable to work for an indefinite period. C.C.H., M.D. wrote in letters dated in February and April 2002 that the veteran has been under his care for two years or more. Dr. H. stated that Agent Orange is a well-known carcinogenic agent and it was reasonable to assume that such a rare type of cancer in a relatively young man may have been the result of exposure to Agent Orange during military service. He stated that cirrhosis of the liver complicated the veteran's medical condition, lessening the treatment options and worsening the prognosis for metastatic small bowel cancer. Dr. H. asserts that he reviewed the veteran's medical records from Vietnam and the records document that the veteran contracted hepatitis in service in 1966. Based on this evidence, Dr. H. concluded that the veteran had a chronic form of hepatitis since service in Vietnam. He opined that the veteran's small bowel cancer and hepatitis are more likely than not resulting from service in Vietnam. A letter from E.D.F., M.D., dated in March 2002, indicates that the veteran recently underwent a resection of his small bowel due to a large carcinoid tumor of the small bowel. During the operation, Dr. F. also found cirrhosis of the liver, which is believed to have been Hepatitis B, likely contacted during his service in Vietnam. Dr. F. wrote again in March that the veteran reported that he had been exposed to Agent Orange during his military service. Dr. F. added that "it certainly seems consistent with what is know about Agent Orange that this malignancy may be indeed related to it." The veteran testified in a Board hearing in January 2003. His testimony indicates as follows: The veteran first had symptoms in 1966. He was seen for problems with his stomach and his right side. (Transcript (T.) at p. 6) He was seen by Dr. N from 1966 to 1975 for abdominal pain and liver tenderness. (T. at p. 7) He never has been a drinker. He only was exposed to chemicals while in Vietnam. (T. at p. 8) II. Analysis "A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). A review of the record in this matter clearly substantiates the veteran's current diagnoses of small bowel cancer and cirrhosis of the liver with chronic hepatitis. The veteran asserts that these disorders are secondary to his exposure to Agent Orange while serving in Vietnam in 1966. Service records reflect his service in Vietnam and there is no evidence that indicates he was not exposed to Agent Orange; accordingly, exposure is presumed. 38 C.F.R. § 3.307(a)(6)(iii). The veteran has submitted statements from private physicians to support his assertions. These physicians have shown familiarity with the veteran's service, including treatment for complaints of costovertebral angle tenderness and right upper quadrant tenderness. Dr. N. disclosed that he treated the veteran for abdominal pain and liver tenderness in the interim between 1966 and 1975, indicating a chronic condition from service. These physicians all agree cirrhosis of the liver associated with chronic hepatitis had its origin in the veteran's service in Vietnam. The statements submitted by these physicians further suggest that the chronic liver disease has interfered with treatment of the small bowel cancer, which itself may be linked to his exposure to Agent Orange. There is no specific evidence in the file to refute the competent evidence of record establishing that the veteran's small bowel cancer and cirrhosis of the liver with chronic hepatitis are service related. Accordingly, the Board finds that service connection for small bowel cancer and cirrhosis of the liver with chronic hepatitis is warranted. The benefit of the doubt is resolved in the veteran's favor. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 1110 (West 2002); 38 C.F.R. §§ 3.303; Combee. ORDER Service connection for small bowel cancer is granted. Service connection for cirrhosis of the liver with chronic hepatitis is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.