Citation Nr: 0826542 Decision Date: 08/07/08 Archive Date: 08/18/08 DOCKET NO. 06-26 380 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for neuroendocrine tumor of the small bowel with metastasis to the liver, to include as secondary to exposure to herbicides and radiation. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David S. Ames, Associate Counsel INTRODUCTION The veteran served on active duty from October 1972 to December 1973. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Louisville, Kentucky (RO). FINDING OF FACT The competent medical evidence of record does not show that the veteran's neuroendocrine tumor of the small bowel with metastasis to the liver is related to military service, or to any incident therein, to include as due to exposure to herbicides and radiation. CONCLUSION OF LAW Neuroendocrine tumor of the small bowel with metastasis to the liver was not incurred in, or aggravated by, active military service and may not be presumed to have been so incurred, to include as due to exposure to herbicides and radiation. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Prior to initial adjudication, a letter dated in February 2004 satisfied the duty to notify provisions. See 38 C.F.R. § 3.159(b)(1); Overton v. Nicholson, 20 Vet. App. 427 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The veteran's service medical records, VA medical treatment records, and indicated private medical records have been obtained. VA examinations have not been accorded the veteran, because there is no evidence that the veteran had the disability on appeal during service or that it is related to military service. There is no indication in the record that additional evidence relevant to the issue decided herein is available and not part of the claims file. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. 473. Further, the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, to include the opportunity to present pertinent evidence. Generally, 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; 38 C.F.R. § 3.303(a). In addition, 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. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorders, there must be (1) medical evidence of 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). The veteran's service medical records are negative for diagnosis of any tumor or carcinoma of any kind. After separation from military service, a December 2002 letter from a private physician stated that the veteran had a diagnosis of low grade neuroendocrine cancer with metastasis to the liver. The private physician also stated that "[i]t is possible that [the veteran] has had cancer for as long as one to two years prior to this diagnosis, or longer." The medical evidence of record shows that neuroendocrine tumor of the small bowel with metastasis to the liver has been consistently diagnosed since December 2002. A December 2004 VA Agent Orange Registry examination report stated that the veteran did not serve in Vietnam or Korea, but stated that he moved barrels on a dock and sprayed fence lines in California and Texas. After a physical examination, the examiner listed the illnesses thought to be associated with exposure to Agent Orange. The veteran's claimed disorder was not listed. A November 2006 letter from a private physician stated that during the veteran's period of military service he served at Fort Dix, New Jersey, Fort Bliss, Texas, and Fort Berry, California. [A]t Ft. Bliss, he worked on the loading docks. At that time, he handled barrels of Agent Orange as well as several other caustic chemical substances. On several occasions during this time, multiple spills of Agent Orange occurred and he experienced direct cutaneous exposure and was required to clean up these spills. In addition, he was also required to spray foliage around the perimeter of the base. During his service at Ft. Berry, he served as a missile crewman and was responsible for maintaining and cleaning missiles and other related equipment. He was advised by a retired military engineer that the missile solvent used to clean the missiles was also highly carcinogenic. . . . Most relevant to this petition is the fact that [the veteran] suffers from a metastatic carcinoma of neuro-endocrine origin (metastatic carcinoid tumor). To date, no scientific body (including the American Cancer Society) has ruled out the possibility of causation of this illness secondary to Agent Orange exposure. . . . Additionally, [the veteran] has no family history of any type of neuro-endocrine tumor. No other potential etiological factors have been identified in his case. The veteran claims that his neuroendocrine tumor of the small bowel with metastasis to the liver was caused by exposure to herbicides and radiation during military service. Presumptive service connection for a disability based upon exposure to radiation can be awarded on two different legal bases. The first basis is a presumptive basis for diseases specific to radiation-exposed veterans under 38 C.F.R. § 3.309(d). The second basis is based on exposure to ionizing radiation with the subsequent development of a radiogenic disease under 38 C.F.R. § 3.311. There are certain diseases that are presumptively service-connected specific to radiation-exposed veterans. 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). Initially, it is noted that cancer of the small intestine, liver, and colon are among the diseases subject to presumptive service connection due to radiation exposure. See 38 U.S.C.A. § 1112(c)(2); 38 C.F.R. § 3.309(d)(2). However, the veteran is not a radiation-exposed veteran for VA purposes as he did not participate in a radiation-risk activity. See 38 C.F.R. § 3.309(d)(3)(ii). Accordingly, presumptive service-connection for exposure to radiation is not warranted under 38 C.F.R. § 3.309. Radiogenic diseases may also be service-connected pursuant to 38 C.F.R. § 3.311 if the veteran was exposed to ionizing radiation. Cancer of the liver, colon, and rectum are radiogenic diseases for the purposes of 38 C.F.R. § 3.311. However, there is no evidence whatsoever that the veteran was ever exposed to ionizing radiation. The veteran did not participate in the atmospheric testing of nuclear weapons, did not serve in the occupation of Hiroshima or Nagasaki, and did not otherwise serve in any place or manner which would indicate that he may have been exposed to ionizing radiation. Accordingly, presumptive service-connection for exposure to radiation is not warranted under 38 C.F.R. § 3.311. Additionally, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307. The following diseases are deemed associated with herbicide exposure, under VA law: 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 (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), and diabetes mellitus (Type 2). 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii); 38 C.F.R. § 3.309. In this case, the veteran claims that he developed neuroendocrine tumor of the small bowel with metastasis to the liver, to include as the result of exposure to Agent Orange and other herbicides. The evidence of record reveals that the veteran did not serve in Vietnam. He is not therefore presumed under 38 U.S.C.A. § 1116(f), to have been exposed to herbicide agents, to include Agent Orange. In addition, there is no evidence of record other than the veteran's own statements that he was exposed to herbicide agents during his period of active military service. Even if the evidence of record showed that the veteran was exposed to herbicide agents, to include Agent Orange, the medical evidence of record does not show a current diagnosis of a presumptive disorder under 38 C.F.R. § 3.309(e). Cancer of the bowel with metastisis to the liver is not a presumptive disorder under 38 C.F.R. § 3.309(e). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 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 United States Court of Appeals for Veterans Claims has specifically held that the provisions of Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). In this regard, the medical evidence of record does not relate the veteran's neuroendocrine tumor of the small bowel with metastasis to the liver to military service, to include exposure to radiation or herbicides. The veteran's service medical records are negative for any diagnoses of any tumor or carcinoma. While the veteran has a current diagnosis of neuroendocrine tumor of the small bowel with metastasis to the liver, the medical evidence shows that it was not diagnosed until December 2002, approximately 29 years after separation from military service. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). In addition, the December 2002 letter from a private physician stated that the veteran may have had the "cancer for as long as one to two years prior to this diagnosis, or longer." The 1 to 2 year time frame clearly indicates that the cancer arose many years after separation from military service. The words "or longer" allow for a possibility of it existing prior to 1 to 2 years before the diagnosis. However, the cited 1 to 2 year time frame, when compared to the time elapsed between separation from military service and diagnosis, does not demonstrate an etiological opinion relating the veteran's currently diagnosed disorder to military service nearly 30 years ago. The November 2006 letter from a private physician included a specific discussion of the veteran's exposure to Agent Orange and other carcinogenic chemicals. However, all of this information was received from the veteran's reported history, not from verified sources. The veteran's statements alone are not sufficient to show that he was exposed to Agent Orange during his period of military service at Fort Dix, Fort Bliss, or Fort Berry. The Department of Defense has issued a report on all known incidents of herbicide use outside of Vietnam. See http://www1.va.gov/agentorange/docs/Report_on_DoD_Herbicides_ Outside_of_Vietnam.pdf. This report does not list any herbicide use of any kind at Fort Dix, Fort Bliss, or Fort Berry at any time whatsoever. In addition, the report does not include any known use of herbicides outside of Vietnam during the entire duration of the veteran's period of military service. Accordingly, the November 2006 letter is not competent evidence of an etiological relationship between the veteran's claimed disorder and herbicide exposure, as it relies on a reported history which is not substantiated in any manner. Furthermore, even if the veteran was shown to have been exposed to herbicides or carcinogenic agents during military service, the November 2006 letter does not establish an etiological relationship for VA purposes. The only statement in the letter which can be interpreted as an etiological opinion of any kind is "[t]o date, no scientific body (including the American Cancer Society) has ruled out the possibility of causation of this illness secondary to Agent Orange exposure." However, this simply states that Agent Orange has not been ruled out as a cause of the veteran's disorder, it does not state that it actively was caused by Agent Orange or even that it was likely caused by Agent Orange. The Board notes that this statement is, at best, entirely speculative and does not create an adequate nexus for the purposes of establishing service connection. Obert v. Brown, 5 Vet. App. 30, 33 (1993) (physician's statement that the veteran may have been having some symptoms of multiple sclerosis for many years prior to the date of diagnosis deemed speculative); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (evidence favorable to the veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by service radiation exposure is insufficient to establish service connection); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical evidence which merely indicated that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of the claimed disorder or any such relationship); Utendahl v. Derwinski, 1 Vet. App. 530, 531 (1991) (medical treatise submitted by appellant that only raises the possibility that there may be some relationship between service-connected sickle cell anemia and the veteran's fatal coronary artery disease does not show a direct causal relationship between the two disorders such as to entitle the appellant to service connection for the cause of the veteran's death). Accordingly, the November 2006 letter from a private physician is not competent evidence that the veteran's neuroendocrine tumor of the small bowel with metastasis to the liver is related to military service, to include exposure to radiation or herbicides. The veteran's statements alone are not sufficient to prove that his currently diagnosed neuroendocrine tumor of the small bowel with metastasis to the liver is related to military service, or to any incident therein, to include as due to exposure to herbicides and radiation. Medical diagnosis and causation involve questions that are beyond the range of common experience and common knowledge and require the special knowledge and experience of a trained physician. As he is not a physician, the veteran is not competent to make a determination that his currently diagnosed neuroendocrine tumor of the small bowel with metastasis to the liver is related to military service, or to any incident therein, to include as due to exposure to herbicides and radiation. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Accordingly, there is no competent medical evidence of record that relates the veteran's neuroendocrine tumor of the small bowel with metastasis to the liver to military service, or to any incident therein, to include as due to exposure to herbicides and radiation. As such, service connection for neuroendocrine tumor of the small bowel with metastasis to the liver is not warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as there is no competent medical evidence of record that relates the veteran's neuroendocrine tumor of the small bowel with metastasis to the liver to military service, or to any incident therein, to include as due to exposure to herbicides and radiation, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for neuroendocrine tumor of the small bowel with metastasis to the liver, to include as secondary to exposure to herbicides and radiation, is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs