Citation Nr: 1135092 Decision Date: 09/19/11 Archive Date: 09/23/11 DOCKET NO. 09-02 042 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for cancer of the ampulla of Vater, to include as secondary to herbicide exposure. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty from December 1970 to November 1972. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which, inter alia, denied the Veteran's claim of entitlement to service connection for cancer of the ampulla of Vater. In June 2010, the Board remanded the matter for further development and the case has been returned to the Board for adjudication. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran was exposed to herbicides during service. 2. Cancer of the ampulla of Vater is not a condition for which presumptive service connection based on herbicide exposure is warranted. 3. The preponderance of the evidence does not support a finding that a relationship exists between the Veteran's currently diagnosed cancer of the ampulla of Vater and military service, to include herbicide exposure therein. CONCLUSION OF LAW Cancer of the ampulla of Vater was not incurred in or aggravated by military service, to include herbicide exposure, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Stegall Considerations As noted above, the Board remanded the matter in June 2010. The Board specifically instructed the RO to assist the Veteran in obtaining all evidence in support of his claim, provide the Veteran with an examination to determine the nature and etiology of his current cancer of the ampulla of Vater, and to readjudicate the claim. In a June 2010 letter, the RO requested that the Veteran complete and return VA Form 21-4142, Authorization and Consent to Release Information, for all health care providers; the Veteran was subsequently afforded an examination in August 2010; and his claim was readjudicated in a June 2011 supplemental statement of the case. Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Duties to Notify and Assist In correspondence dated in October 2007, prior to the January 2008 2009 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2010). Specifically, the RO notified the Veteran of information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The October 2007 letter also notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2010). The Veteran's service records have been obtained. All other identified and available treatment records have been secured. As noted above, the Board remanded the matter, in part, in June 2010 to obtain additional medical evidence. In the June 2010 letter, the RO specifically requested the Veteran to complete and return VA Form 21-4142, Authorization and Consent to Release Information, for all health care providers. However, to date, the Veteran has not done so or otherwise identified any outstanding evidence. The United States Court of Appeals for Veterans Claims (Court) has held that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Additionally, the Veteran was provided with a VA examination in August 2010. The report of this examination reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. The Board, therefore, concludes that this examination report is adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2010); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. The Veteran has declined to present personal testimony before a Veterans Law Judge. As such, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A (West 2002), or 38 C.F.R. § 3.159 (2010), and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. Thus, the duties to notify and assist have been met. Analysis The Veteran essentially contends that his cancer of the ampulla of Vater is due to herbicide exposure during service In order to establish service connection for the claimed disorder, 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). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact or chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2010). 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 (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2010). If so, the veteran is thereby entitled to a presumption of service connection for certain disorders listed under 39 C.F.R. § 3.309(e). These diseases are chloracne; type II diabetes; Hodgkin's disease; chronic lymphocytic leukemia; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy (defined as transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset); porphyria cutanea tarda; prostate cancer; respiratory cancers; AL amyloidosis; soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); hairy cell leukemia and other chronic B-cell leukemias; Parkinson's disease; and ischemic heart disease. 38 C.F.R. § 3.309(e) (2010); Final Rule, 75 Fed. Reg. 53,202-16 (Aug. 31, 2010). The Secretary of the Department of Veterans Affairs 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: hepatobiliary cancers; oral, nasal, and pharyngeal cancer; bone and joint cancer; skin cancers (melanoma, basal, and squamous cell); breast cancer; female reproductive system cancer (cervix, uterus, ovary); testicular cancer; urinary bladder cancer; renal cancer; leukemia (other than chronic lymphocytic leukemia); abnormal sperm characteristics and infertility; spontaneous abortion; neonatal or infant death and stillbirth in offspring of exposed individuals; low birthweight in offspring of exposed individuals; birth defects (other than spina bifida) in offspring of exposed individuals; childhood cancer (including acute myelogenous leukemia) in offspring of exposed individuals; neurobehavioral disorders (cognitive and neuropsychiatric); movement disorders, including amyotrophic lateral sclerosis; chronic peripheral nervous system disorders; respiratory disorders; gastrointestinal, metabolic, and digestive disorders (changes in liver enzymes, lipid abnormalities, ulcers); immune system disorders (immune suppression, autoimmunity); circulatory disorders; endometriosis; and effects of thyroid homeostasis; gastrointestinal tumors (esophagus, stomach, pancreas, colon, rectum); and brain tumors, or any other disability not specified. See Notice, 72 Fed.Reg. 32395-407 (June 12, 2007); see also Notice, 68 Fed.Reg. 27630 -27641 (May 20, 2003); see also Notice, 67 Fed. Reg. 42600 (June 24, 2002); Notice, 66 Fed. Reg. 2376 (Jan. 11, 2001); Notice, 64 Fed.Reg. 59232 (Nov. 2, 1999). In this case, the Veteran's Form DD 214 shows that he served nearly a year in Vietnam during his period of active duty (which was during the Vietnam era), therefore, he is presumed to have been exposed to herbicides. See 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.309 (e) (2010). The evidence of record documents treatment and diagnoses for cancer of ampulla of Vater, but cancer of the ampulla of Vater is not one of the listed disabilities for which presumptive service connection due to herbicide exposure may be established. See 38 C.F.R. § 3.309(e) (2010); Notice, 72 Fed. Reg. 32395-32407 (2007). Furthermore, Secretary of the Department of Veterans Affairs 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 gastrointestinal tumors , to include of the pancreas. Therefore, cancer of the ampulla of Vater may not be presumed to be related to herbicide exposure. Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) 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 Court 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). As detailed above, in order to establish service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence of a disease or injury; and (3) evidence of a nexus between (1) and (2). See Hickson, supra. As to the first element, current disability, the medical evidence of record documents diagnoses cancer of the ampulla of Vater. See, e.g., the August 2010 VA examination report. With regard to Hickson element (2), evidence of an in-service incurrence of a disease or injury, the Board will address disease and injury separately. Concerning in-service disease, the Board notes that Veteran's service treatment records are negative for any finding, complaints, or treatment related to cancer of the ampulla of Vater. The evidence shows that the Veteran was diagnosed with such in January 2004. The lack of time between service discharge and onset of disability does not in and of itself preclude establishing service connection for this disability if the competent evidence shows that the disability is related to an in-service event, such as the Veteran's claimed in-service herbicide exposure. In this regard, service personnel records confirm the Veteran's service in the Republic of Vietnam. As noted herein, the Board presumes that the Veteran was exposed to herbicides during his service in Vietnam. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2010). Therefore, Hickson element (2) is met. Turning to crucial Hickson element (3), medical nexus, the Board notes that the competent and probative evidence demonstrates that the Veteran's currently diagnosed cancer of the ampulla of Vater is unrelated to his military service, to include herbicide exposure. The only competent medical opinion of record concerning the issue of medical nexus is the report of the August 2010 VA examiner. Upon review of the claims folder and evaluation of the Veteran, the examiner opined that it was less likely as not that the cancer of the ampulla of Vater was related to service, including exposure to herbicides in service. He noted that exposure to Agent Orange in service was conceded, and there was no scientific data to support the assertion as to causation between the cancer and Agent Orange. Finding that the Veteran had a periampullary (duodenal) adenoma that underwent malignant transformation, the examiner noted that this was consistent with the current understanding of the biology of the ampullary carcinomas, which were thought to arise from ampullary or periampullary malignancy. He added that small intestinal adenomas (such as the duodenal adenomas found in the Veteran) were thought to develop through a genetic mutational pathway, the "adenoma to carcinoma" pathway; they display the sum adenoma-carcinoma sequencing as in colorectal neoplasia. The examiner further indicated that the Veteran did not have known risk factors for this condition, as he denied a strong family history of polyposis. He concluded that there was no current evidence that herbicide exposure was a contributory factor to formation of intestinal adenomas or to the mutations that cause the malignant transformation of the benign adenomas. The examiner cited to numerous medical literature for reference. The August 2010 VA examination report appears to have been based upon thorough review of the record, thorough examination of the Veteran, and thoughtful analysis of the Veteran's entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (noting that the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Additionally, the August 2010 VA examiner's opinion appears to be consistent with the Veteran's medical history, which is absent for a diagnosis until many years after service. In his January 2009 VA Form 9, substantive appeal, the Veteran stated that his oncologist indicated that his cancer was due to his herbicide exposure in Vietnam. Consequently, his claim was remanded specifically to assist him in obtaining this evidence. However, the Veteran has not submitted this evidence or any other competent medical opinion to contradict the VA examiner's opinion. As was explained in the duties to notify and assist section above, the Veteran has been accorded ample opportunity to present competent medical evidence in support of his claim. He has failed to do so. See 38 U.S.C.A. § 5107(a) (West 2002) (it is the claimant's responsibility to support a claim for VA benefits). In making all determinations, the Board must fully consider the lay assertions of record. In this regard, a layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (noting that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, No. 09-3525 (U.S. Vet. App. June 15, 2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. Competency of evidence differs, however, from the weight and credibility assigned to evidence. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination that addresses the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). As to the provisions of 38 C.F.R. § 3.303(b), discussed above, relating to chronicity and continuity of symptomatology, the Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. The Veteran is competent to report what he experiences because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this regard, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) (stating that "[S]ometimes 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."). While the Veteran has not directly asserted that he has had problems related to his cancer diagnosis since service discharge, to the extent that he may so assert any such suggestion would not be credible. As noted above, the Board is within its province to weigh that testimony and to make a credibility determination. Any assertion of a continuity of symptoms since service is countered by the complete lack of records showing treatment or complaints related to his cancer. Significantly, there is no competent medical evidence that the Veteran complained of or was treated for symptoms related to cancer of the ampulla of Vater until January 2004. The Veteran, himself, has not indicated that he had problems earlier than that time. In any case, his diagnosis in 2004 was 32 years after his separation from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised). Supporting medical evidence is required to establish service connection based on a continuity of symptomatology. See Voerth v. West, 13 Vet. App. 117, 120-1 (1999) (finding that there must be medical evidence on file demonstrating a relationship between the Veteran's current disability and the claimed continuous symptomatology, unless such a relationship is one as to which a lay person's observation is competent). Such evidence is lacking in this case. Therefore, to the extent that the Veteran may assert that he has had problems associated with his condition since service, his contentions are not credible. Additionally, as to the Veteran's assertion that a medical relationship exists between his currently diagnosed cancer of the ampulla of the Vater and service, including herbicide exposure, the Board acknowledges that the Veteran is competent to testify as to his observations and lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See supra Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, an assertion as to the etiology of the Veteran's current cancer of the ampulla of the Vater is a question unlike testimony as to a separated shoulder, varicose veins, or flat feet, which are capable of direct observation. See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308-09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (discussing that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding the etiology of his cancer of the ampulla of the Vater. See 38 C.F.R. § 3.159 (a)(1) (2010) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of his cancer of the ampulla of the Vater as the causative factors for such are not readily subject to lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). In this circumstance, the Board gives more credence and weight to the August 2010 VA examiner's opinion as it was rendered after an evaluation of the Veteran, and extensive review of the Veteran's medical history and the medical literature by a licensed physician. Furthermore, the Veteran submitted an internet article which noted that pesticides and certain chemicals related to gasoline were risk factors for developing pancreatic cancer. Medical treatise evidence can, in some circumstances, constitute competent medical evidence. See 38 C.F.R. § 3.159(a)(1) (2010) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). However, medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Because the information provided in the articles is generic and does not specifically relate to the facts and circumstances surrounding this particular case, it holds less probative weight than the determinations of the VA examiner, who personally examined the Veteran and cited to the current relevant medical literature with attention to the specifics of the Veteran's case. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b) (West 2002). ORDER Entitlement to service connection for cancer of the ampulla of Vater, to include as secondary to herbicide exposure is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs