Citation Nr: 1300931 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 09-33 754 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for esophageal cancer, to include as due to herbicide exposure. 2. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD). 3. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or on account of being housebound. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESSES AT HEARING ON APPEAL Appellant and his spouse. ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from January 1965 to January 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from March 2008, April 2009, and July 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The March 2008 rating decision denied the claim for service connection for esophageal cancer, the April 2009 rating decision continued a 70 percent evaluation for PTSD, and the July 2009 rating decision denied entitlement to SMC. In April 2011, the Veteran and his wife testified at a hearing before the undersigned Veterans Law Judge at the RO. They both also testified at the RO before a Decision Review Officer (DRO) in May 2010. Transcripts of both hearings are of record. In January 2012, the Board remanded the case for further action by the originating agency. The case has now returned to the Board for further appellate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to an increased rating for PTSD and entitlement to SMC are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC FINDING OF FACT Esophageal cancer was demonstrated years after service and is not etiologically related to a disease or injury in service, including exposure to herbicides. CONCLUSION OF LAW Esophageal cancer was not incurred in or aggravated by active service and its incurrence or aggravation may not be presumed. 38 U.S.C.A. §§ 1110, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection Claim The Veteran contends that service connection is warranted for esophageal cancer as it was incurred due to herbicide exposure during his active service in the Republic of Vietnam. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also 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). Additionally, for veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, such as malignant tumors, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). The record clearly demonstrates the presence of a current disability. In December 2007, the Veteran underwent an endoscopy at the Philadelphia VA Medical Center (VAMC) due to a history of Barrett's esophagus and dysphagia. A biopsy was also performed which indicated adenocarcinoma of the esophagus. An urgent consultation was scheduled with an outside physician, and a January 2008 upper endoscopic ultrasound at the University of Pennsylvania confirmed the presence of a mass in the lower third of the Veteran's esophagus. He began chemotherapy at the VAMC in February 2008 and an esophagectomy was performed at the University of Pennsylvania in May 2008. The Veteran has continued to receive treatment for recurring cancer throughout the claims period and has undergone several additional surgeries. With respect to whether the Veteran incurred a service injury, service records are negative for evidence pertaining to esophageal cancer. There are no complaints or treatment during service for any esophageal abnormalities, and an examination of the Veteran's throat was normal at the January 1969 separation examination. However, the Veteran contends that esophageal cancer was incurred due to herbicide exposure during active duty service. Although service treatment records do not document any findings indicative of cancer, personnel records confirm the Veteran's presence in Vietnam during active duty service. His exposure to herbicides is therefore presumed and an in-service injury is established. See 38 U.S.C.A. §§ 1116(f), 1154; 38 C.F.R. § 3.309(e); see also Haas v. Peake, 525 F.3d 1168 (2008); VAOPGCPREC 27-97. VA regulations provide for a presumption of service connection for certain disabilities associated with herbicide exposure under 38 C.F.R. §§ 3.307 and 3.309 (2012). Cancers of the digestive system are not subject to presumptive service connection based on herbicide exposure under 38 C.F.R. §§ 3.307 and 3.309. The United States Court of Appeals for the Federal Circuit has determined that a Veteran is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Therefore, while service connection on a presumptive basis is not possible for the Veteran's claimed disability due to herbicide exposure, the Board will determine whether service connection is warranted as directly due to active duty service and exposure to herbicides. Regarding the third element of service connection, a nexus between the Veteran's current disability and the in-service injury, the Board notes that service records do not indicate such a link. No chronic conditions were noted on the January 1969 separation examination and the service records do not contain any complaints of esophageal abnormalities. There is also no evidence of a malignant tumor until December 2007, 40 years after service, when the Veteran was diagnosed with adenocarcinoma of the esophagus at the Philadelphia VAMC. Service connection is therefore not possible for the Veteran's cancer as a chronic disease subject to presumptive service connection under 38 C.F.R. §§ 3.307 and 3.309. Similarly, while the Veteran's VA clinical records indicate a history of Barrett's esophagus (a disorder affecting the lining of the esophagus) dating back to approximately 1998, there is still no evidence of an esophageal abnormality in service or for almost 30 years after the Veteran's discharge. The absence of any clinical evidence for decades after service weighs the evidence against a finding that any esophageal disability was present in service or in the year immediately after service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The weight of the medical evidence is also against a finding of service connection. In support of his claim, the Veteran submitted a February 2009 medical opinion from his VA physician providing a link between the Veteran's esophageal adenocarcinoma and exposure to chemical pesticides. The medical opinion was not accompanied by any rationale or basis for the stated conclusion and does not indicate any consideration of the Veteran's past medical history or other relevant information from the claims file. The Board therefore finds that it is of little probative value. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). In contrast, the record also contains an October 2011 VA expert medical opinion that weighs against the claim. The October 2011 VA physician found that the Veteran's cancer was less likely due to presumed exposure to herbicides and was instead more likely due to his history of Barrett's esophagus. The VA physician also noted that there was no proven association between esophageal cancer and exposure to chemical pesticides. This opinion included a full rationale and discussion of the Veteran's relevant medical history. It is therefore probative to the issue currently before the Board and outweighs the February 2009 opinion in favor of the claim. Nieves, supra. The Board has also considered the testimony of the Veteran connecting his esophageal cancer to service, but as a lay person, he is not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). The Board acknowledges that the Veteran is competent to testify as to observable symptoms, such as the presence of an esophageal mass, but finds that his opinion as to the cause of the disability simply cannot be accepted as competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). In addition, the Veteran has not reported a continuity of symptoms since service. The history he has provided is to the effect that he was exposed to herbicides during service which caused esophageal abnormalities decades later. In sum, the post-service medical evidence of record shows that the first evidence of an esophageal disability was several decades after the Veteran's separation from active duty. In addition, the weight of the competent medical evidence is against a finding that the Veteran's esophageal cancer is related to military service. The Board finds that the evidence is against a nexus between the Veteran's claimed disability and service. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim and it is denied. 38 U.S.C.A. § 5107(b) (West 2002). Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, notice fulfilling the requirements was furnished to the Veteran in a January 2008 letter. VA has also met the "duty to assist." VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, and private medical records. Although the record indicates that the Veteran is in receipt of compensation from the Social Security Administration (SSA), in April 2012, the SSA informed VA that the Veteran's folder had been destroyed and there were no records available for procurement. The Veteran was informed that the SSA records were unavailable and responded, through his representative, that the SSA determination had been made based solely on VA medical records. VA has also obtained a medical opinion from a VA medical expert in October 2011 in response to the Veteran's claim for service connection. The Board also finds that VA has complied with the January 2012 remand orders of the Board. In response to the Board's remand, the Veteran's complete treatment records from the Philadelphia VAMC were obtained and added to the virtual claims file. VA also attempted to procure any relevant records from the SSA, and the Veteran was notified in a June 2012 letter that his SSA folder had been destroyed. The Veteran was asked to submit any records in his possession, but he only responded with a June 2012 statement reporting that the award of SSA benefits was based on the contents of his VA records. The claim for service connection was then readjudicated in the November 2012 supplemental statement of the case (SSOC). Therefore, VA has complied with the remand orders of the Board. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to service connection for esophageal cancer, to include as due to herbicide exposure, is denied. REMAND The Veteran is service-connected for PTSD currently evaluated as 70 percent disabling. He contends that a 100 percent evaluation is warranted as the disorder is productive of total occupational and social impairment due to a worsening of symptoms resulting from treatment for esophagus cancer. The Board finds that additional development is necessary before a decision may be rendered with respect to the claim for an increased rating. The record contains both VA and private medical evidence indicating that the Veteran has experienced an increase psychiatric symptoms since his 2008 diagnosis of esophageal cancer. However, the record also establishes that the Veteran has developed a major depressive disorder due to cancer treatment. VA is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). In this case, the Board finds that the current record does not adequately differentiate between the symptoms associated with the service-connected and nonservice-connected disorder, especially in the context of the Veteran's occupational and social impairment. Thus, a new VA examination is required by the duty to assist. The Veteran is also claiming entitlement to SMC based on the need for regular aid and attendance or on account of being housebound. This claim is inextricably intertwined with the claim for an increased rating, and the claim for an increased rating for PTSD must be adjudicated before further action is taken on the SMC claim. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Schedule the Veteran for a VA psychiatric examination to determine the current severity of his service-connected PTSD. The claims folder must be made available to the examiner. The examination report should reflect that the claims folder was reviewed. The examiner should identify all current manifestations of the service-connected PTSD. The examiner should, if possible, distinguish between symptoms attributable to the service-connected PTSD and those related to the nonservice-connected psychiatric disorders such as major depression disorder. The examiner should expressly indicate if it is not possible to make this differentiation and provide an explanation as to why it is not possible. The examiner should also provide an opinion concerning the current degree of social and industrial impairment due solely to the service-connected PTSD. In addition, the examiner should provide a GAF score with an explanation of the significance of the score assigned. The rationale for all expressed medical opinions should be provided with specific reference to evidence from the claims file. 2. Readjudicate the claims on appeal in light of all the evidence of record. If any benefit remains denied, a supplemental statement of the case should be issued. A copy should be provided to the Veteran and his representative, and they should be afforded a reasonable opportunity to respond. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs