Citation Nr: 0926356 Decision Date: 07/15/09 Archive Date: 07/22/09 DOCKET NO. 07-25 789 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for gastrointestinal stromal (GIST) tumor, to include as secondary to Agent Orange exposure. 2. Entitlement to service connection for splenectomy residuals, to include as secondary to GIST tumor. 3. Entitlement to service connection for resection of tail of pancreas residuals, to include as secondary to GIST tumor. 4. Entitlement to service connection for a sinus disorder. 5. Entitlement to service connection for sleep apnea. 6. Entitlement to service connection for skin cancer, to include as secondary to Agent Orange exposure. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. R. Weaver, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1968 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that denied the above claims. A claim for service connected for diabetes mellitus, to include as secondary to Agent Orange exposure, is referred to the RO for appropriate action. In June 2008, the Veteran appeared at the RO and testified before the undersigned Veterans Law Judge. A transcript of that hearing is of record. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam era. Hence, exposure to Agent Orange is presumed. 2. The Veteran was diagnosed with a malignant GIST tumor in August 2005. 3. The competent medical evidence establishes that the Veteran's GIST tumor is properly classified as a soft tissue sarcoma under 38 C.F.R. § 3.309. 4. The competent medical evidence shows that the Veteran's service-connected GIST tumor precipitated the removal of his spleen and pancreas tail. 5. The evidence demonstrates that the Veteran's sinus disorder, sleep apnea, and skin cancer developed many years after service; there is no competent medical evidence that relates these disorders to his period of active service. CONCLUSIONS OF LAW 1. Service connection for a gastrointestinal stromal tumor is warranted. 38 U.S.C.A. §§ 1110, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2008). 2. Service connection for splenectomy residuals is established as secondary to the service-connected GIST tumor. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.310 (2008). 3. Service connection for resection of tail of pancreas residuals is established as secondary to the service- connected GIST tumor. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.310 (2008). 4. A sinus disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2008). 5. Sleep apnea was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2008). 6. Skin cancer was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to notify and assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) also require VA to review the information and evidence presented with the claim and provide the claimant with notice of what information and evidence not previously provided will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; and (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). Concerning the claims for service connection for a spindle cell tumor of the stomach, splenectomy, and resection of tail of pancreas, these claims have been granted in full and there is no further duty to notify or assist. With respect to the remaining claims, letters provided to the Veteran in January 2006 and March 2006 complied with the requirements of 38 U.S.C.A. § 5103(a), 38 C.F.R. § 3.159(b), and Dingess. The letters were issued prior to the August 2006 rating decision that denied the Veteran's claims. Thus, the Board finds that VA has satisfied its "duty to notify" the appellant. With respect to VA's duty to assist, the RO has obtained all relevant, identified, and available service treatment records and private medical records. VA is not required to provide a medical examination in this case. The Veteran has stated that these disabilities had their onset after his separation from service. As discussed in more detail below, he did not submit competent medical evidence indicating a link between his active service and his sinus disorder, skin cancer, or sleep apnea. See Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). Thus, since no further notice or assistance to the appellant is required to fulfill VA's duties, the Board finds that all necessary development has been accomplished and appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993); Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Degmetich v. Brown, 104 F.3d 1328 (1997); Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection for certain chronic diseases, like cancer, will be rebuttably presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). Lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The record before the Board contains service medical records and post-service medical records, which will be addressed as pertinent. Dela Cruz v. Principi, 15 Vet. App.143 (2001) (a discussion of all evidence by the Board is not required when the Board has supported its decision with thorough reasons and bases regarding the relevant evidence). A. GIST tumor The Veteran contends that service connection is warranted because he has a malignant stomach tumor, or GIST tumor, that was caused by Agent Orange exposure in service. Under applicable law, if a Veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of § 3.307(d) are also satisfied: chloracne or other acneform disease consistent with chloracne; type II diabetes; chronic lymphocytic leukemia; Hodgkin's disease; multiple myeloma; Non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The term "soft-tissue sarcoma" includes the following: adult fibrosarcoma; dermatofibrosarcoma protuberans; malignant fibrous histiocytoma; liposarcoma; leiomyosarcoma; epithelioid leiomyosarcoma (malignant leiomyoblastoma); rhabdomyosarcoma; ectomesenchymoma; angiosarcoma (hemangiosarcoma and lymphangiosarcoma); proliferating (systemic) angioendotheliomatosis; malignant glomus tumor; malignant hemangiopericytoma; synovial sarcoma (malignant synovioma); malignant giant cell tumor of tendon sheath; malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas; malignant mesenchymoma; malignant granular cell tumor; alveolar soft part sarcoma; epithelioid sarcoma; clear cell sarcoma of tendons and aponeuroses; extraskeletal Ewing's sarcoma; congenital and infantile fibrosarcoma; malignant ganglioneuroma. 38 C.F.R. § 3.309(e). Here, service records reflect that the Veteran served in the Republic of Vietnam during the Vietnam Era. Thus, he is presumed to have been exposed to herbicides. 38 C.F.R. § 3.307(a)(6)(iii). Private medical records reveal that the Veteran was diagnosed with a malignant GIST in tumor in August 2005. Further, the competent medical evidence indicates that the Veteran's GIST tumor is properly classified as a soft tissue sarcoma under 38 C.F.R. § 3.309. Specifically, in April 2009, a VHA pathologist reviewed the medical evidence of record and concluded that malignant gastrointestinal stromal tumor is indeed properly classified as a soft tissue sarcoma. The doctor stated that although the Veteran's tumor is "not the equivalent of a leiomyosarcoma, and epithelioid leiomyosarcoma (malignant leiomyoblastoma), or a malignant schwannoma in current classification schemes, it would likely have been diagnosed in one of these categories at the time Public Law 102-4 was published." He went on to say that the omission of the Veteran's type of cancer from the "list of sarcomas provided in 38 C.F.R. § 3.309 reflects that fact that the statute antedates the recognition of GIST as a distinct tumor category." Accordingly, since the evidence shows that the Veteran was exposed to an herbicide agent during active duty and subsequently developed a soft tissue sarcoma (a disease that is recognized under 38 C.F.R. § 3.309 as a condition associated with such exposure), the Board finds that presumptive service connection is warranted. B. Splenectomy and resection of tail of pancreas residuals The Veteran avers that secondary service connection is warranted for splenectomy and resection of tail of pancreas residuals because treatment of his service-connected GIST tumor required removal of his spleen and part of his pancreas. Service connection may be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). Private treatment records show that in August 2005, it was discovered that the Veteran's service-connected GIST tumor had spread to his gastric wall, peritoneal nodules, surface of the spleen, and pancreatic tail. He subsequently underwent gastric resection, distal pancreatectomy, and a splenectomy to remove the cancer. Follow-up treatment notes indicate that the Veteran has on-going residuals from those procedures. Therefore, since the competent medical evidence shows that the Veteran's service-connected GIST tumor precipitated the removal of his spleen and pancreas tail, the Board finds that secondary service connection for the residuals of those procedures is warranted. C. Sinus disorder, skin cancer, and sleep apnea During his June 2008 hearing, the Veteran testified that he did not have sinus problems, skin cancer, or sleep apnea in service or within one year after his discharge. He stated that he was first diagnosed with and treated for chronic sinus infection in 1978, obstructive sleep apnea in the 1990s, and skin cancer in 2003. His wife provided a written statement indicating that she noticed the Veteran snoring in 1973. In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Here, the medical evidence of record shows that the Veteran was diagnosed with chronic sinus disease, nasal polyposis, and obstructive sleep apnea many years after his separation from service. Private dermatology treatment records also confirm that the Veteran had a .6 cm tan brown keratotic flat papule removed from his scalp in April 2004, which was later determined to be basal cell carcinoma. The Veteran does not contend and his service treatment records do not show that he complained of or was treated for these conditions during service or within one year following discharge. He does not aver and the evidence does not demonstrate that he experienced symptoms related to a sinus disorder, skin cancer, or sleep apnea continuously from the time he was discharged until the time the conditions were diagnosed. Moreover, the file does not contain a competent medical opinion that relates any of these conditions to the Veteran's period of active duty. And basal cell carcinoma is not a disease that is recognized under 38 C.F.R. § 3.309 as a condition associated with Agent Orange exposure. The Board recognizes the Veteran's contentions that he should be service connected for his claimed disabilities. As a layperson, however, he is not competent to provide an opinion requiring medical knowledge, such as a diagnosis of medical disability. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Accordingly, the Board finds that the preponderance of the evidence is against the claims and service connection for a sinus disorder, skin cancer, and sleep apnea must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for gastrointestinal stromal tumor, as secondary to Agent Orange exposure, is granted. Service connection for splenectomy residuals, as secondary to GIST tumor, is granted. Service connection for resection of tail of pancreas residuals, as secondary to GIST tumor, is granted. Service connection for a sinus disorder is denied. Service connection for sleep apnea is denied. Service connection for skin cancer, to include as secondary to Agent Orange exposure, is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs