Citation Nr: 1305932 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 09-33 434 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho THE ISSUE Entitlement to service connection for esophageal cancer, including as due to herbicide exposure. REPRESENTATION The Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran (appellant) served on active duty from October 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the RO in Boise, Idaho, which denied the claim. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The Veteran requested a personal hearing before a Member of the Board at the RO in his August 2009 substantive appeal. The Veteran withdrew the Board hearing request in a January 2010 submission. The Board may proceed to address this issue. 38 C.F.R. § 20.704(d) (2012). FINDINGS OF FACT 1. The Veteran had "service in the Republic of Vietnam" and was exposed to herbicides during active service. 2. Esophageal cancer is not a disability presumptively associated with herbicide exposure. 3. Symptoms of esophageal cancer were not chronic in service. 4. Symptoms of esophageal cancer have not been continuous since service. 5. Esophageal cancer was not manifest within one year of separation from service. 6. The Veteran's esophageal cancer is not related to service. CONCLUSION OF LAW The criteria for service connection for esophageal cancer, to include as due to herbicide exposure, have not been met. 38 U.S.C.A. §§ 1110, 1112, 1116, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claim for service connection. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Duty to Notify When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and 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). 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. Compliance with the first element requires notice of the five service connection elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See 38 U.S.C. § 5103(a); see also Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). Prior to initial adjudication of the Veteran's claim, a December 2008 letter fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Duty to Assist The Board also concludes VA's duty to assist in obtaining relevant records has been satisfied. The Veteran's service treatment records and VA medical records are in the file. The Veteran made a request that the RO obtain records from three doctors in December 2008, in response to the duty to notify letter. He also provided records from two of those doctors. He stated that he was scheduled to undergo surgery from the third doctor, R.G., in January 2009. The RO missed the third request and did not obtain records from R.G. The Veteran's VA treatment records show that the surgery did occur. Although the RO did not request the records from Dr. R.G., the Board finds that such records are not material to the claim because there is no reasonable possibility that these records could substantiate the claim. As discussed in greater detail below, this claim has been denied for lack of evidence relating the Veteran's esophageal cancer to his in-service herbicide exposure. Generally, such surgical records do not ordinarily contain etiology opinions. Specific to this case, the Veteran has not indicated that Dr. R.G. related, either orally to him or in writing, the Veteran's cancer to the in-service herbicide exposure. In this case, the Veteran asked the RO to obtain the records from the three physicians before the initial adjudication of the claim. Once notified that the evidence relating his disability to his service was lacking, he filed a March 2009 statement with his Notice of Disagreement to the effect that a VA doctor, Dr. K., and a private doctor, Dr. E., had both related the cancer to herbicide exposure. Notably, he did not indicate that Dr. R.G. had related the cancer to herbicide exposure, either orally or in writing, including in the treatment records. At best, the R.G. surgical records would tend to demonstrate the presence of a current disability, an element of the current service connection claim that has already been established ("substantiated" or proven) by the evidence that is of record. The R.G. records would be cumulative of evidence already of record, would pertain to elements of service connection already established (substantiated), so could provide no reasonable possibility of substantiating the claim for service connection. For these reasons, the Board finds that remand would not result in any benefit flowing to the Veteran. The Board concludes that the duty to assist in obtaining records has been adequately discharged. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). If VA provides a claimant with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). The Veteran was afforded a July 2009 VA medical examination to obtain an opinion as to whether his esophageal cancer was the result of herbicide exposure during service. This opinion was rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file. The examiner obtained an accurate history and considered the Veteran's history. The examiner laid a factual foundation and reasoned basis for the conclusions that were reached. The examiner also discussed at length a contrary opinion contained in a Board decision which was submitted by the Veteran outlining the reasons for rejecting that opinion; therefore, the Board finds that the July 2009 VA examination is adequate. See Nieves-Rodriguez. Service Connection The Veteran contends that he has esophageal cancer as a result of exposure to herbicides while serving in Vietnam. He has submitted medical articles that suggest causes or risk factors for esophageal cancer. After a review of all the evidence, the Board finds that esophageal cancer is not among the disabilities presumptively associated with exposure to herbicides, that it was not manifest within one year of separation from service, and is not otherwise related to any incident of service, to include exposure to herbicides. The Board concludes that service connection is not warranted on any basis. 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, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also 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). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and malignant tumors become manifest to a degree of 10 percent within one year from date of termination of such service, such "chronic" disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In this case, after a review of all the evidence, the Board finds that the competent evidence demonstrates that the Veteran has a current disability of esophageal cancer. The Veteran was diagnosed with esophageal cancer in November 2008 by biopsy. There is no question regarding the diagnosis; therefore, the current disability element for service connection is well established. The Board next finds that the Veteran had "service in the Republic of Vietnam" and was exposed to herbicides during active service. A "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 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) (West 2002 & Supp. 2012); 38 C.F.R. § 3.307(a)(6)(iii) (2012). The Veteran's DD Form 214 indicates that he had one year and three days of foreign service in Vietnam. Based on this service, the Veteran is presumed to have been exposed to the potentially harmful event of herbicides during his service in the Republic of Vietnam. If a veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. Esophageal cancer is not on the presumptive list of diseases associated with herbicide exposure. 38 C.F.R. § 3.309(e) (2012). Under the authority granted by Congress in the Agent Orange Act of 1991 and the Veterans Education and Benefits Expansion Act of 2001, the VA Secretary has determined that a presumption of service connection is not warranted for any disease not affirmatively named in the presumptive list, including esophageal cancer. See 77 Fed.Reg. 47,924 (Aug. 10, 2012). Based on the law, the Veteran cannot benefit from this presumption, regardless of whether he was exposed to herbicides in service. Id. 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. 2725, 2727-29 (1984), does not preclude establishment of service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran does not allege the cancer was present during service or that symptoms of the cancer have been continuous since service. His service, VA, and private treatment records do not suggest that the cancer was present during service or that symptoms of the cancer have been continuous since service. There is no evidence, medical or lay, to support either a finding that the cancer was present during service or manifest continuously since service. The Veteran was first diagnosed with esophageal cancer in November 2008. The cancer was incidentally discovered during treatment for mild chronic gastritis. The Veteran's VA treatment records show that he denied a history of any abdominal complaints when establishing care in November 2007. An April 2008 primary care note indicates the presence of a bloating sensation without a history of peptic ulcer or gastroesophageal reflux disease (GERD). An April 2008 emergency room note from the Eastern Idaho Regional Medical Center also states that the Veteran had abdominal pain and a bloating sensation after eating that seemed to come and go. At most, a July 2009 VA examination report indicates that the Veteran began having shooting abdominal pain about five years prior to the exam. There is no lay or medical history of esophageal symptoms in service or continuously since service or for a period of time (such as forty years) that would date to service. The Board finds that the esophageal cancer was not present during service and that symptoms have not been continuously present since service. The presumed exposure to herbicides is the foundation of the Veteran's claim. Mere exposure, however, to a potentially harmful agent is insufficient to be eligible for VA disability benefits. The competent evidence must show not only a currently diagnosed disability, but also a nexus, that is, a causal connection, between the current disability of esophageal cancer and the exposure to herbicides in service. See Shedden. The Board finds that the weight of the evidence demonstrates that the Veteran's esophageal cancer is not related to service. The Veteran has submitted various pieces of evidence in support of his claim. The Board is required to render findings with respect to the competency, credibility and probative weight of the evidence of record. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). On the question of relationship of esophageal cancer to the in-service exposure to herbicides, the Board has considered the Veteran's contentions that he has esophageal cancer as a result of herbicide exposure. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Among those conditions that a lay person is not competent to identify is cancer. See Jandreau, at 1377, n.4 (Fed. Cir. 2007). The mechanism by which herbicides might cause esophageal cancer decades after exposure is not inherently one observable by the five senses. Indeed, the Veteran offers no account of lay observable symptoms which might relate the two together. The Veteran submitted a March 2009 statement in conjunction with his Notice of Disagreement to the effect that his VA physician had told him that his cancer could have been caused by herbicide exposure. The Veteran also referred to a February 2009 letter provided by the gastroenterologist who discovered the cancer. To the extent that the Veteran's statements are competent evidence, they are competent only in reporting these doctors' statements. See Jandreau. The Board finds the Veteran's statements regarding reporting of events and observable symptoms that were later diagnosed as esophageal cancer to be credible, and are consistent with findings reflected in separate letters from the private doctors; however, his statements are of minimal probative value because they have not provided a medical basis to support such assertion of nexus to service, and only generally purport to relate that a VA physician had told him that his cancer could have been caused by herbicide exposure. Such bases provide the probative value of a medical opinion. See Nieves-Rodriguez, supra. The Veteran's statements to the effect that a VA physician told him his cancer could be related to herbicide exposure, in addition to being admissible hearsay, is only a suggestion of possible relationship and does not constitute an actual opinion of probative value. The Board places greater weight on the original source of the opinions which are available in this case. The VA physician's opinion is recorded in a standardized form completed on the Veteran's behalf in December 2008. The VA physician completed a section of the form describing factors "which may have precipitated" the physical ailments. Wartime exposure to herbicides was mentioned. There is no more certain statement of an opinion than this in the standardized form. The February 2009 letter from Dr. E. who discovered the cancer indicates that the Veteran had adenocarcinoma which has common risk factors of obesity and reflux disease. Dr. E. stated that the Veteran had neither of those risk factors. He also explained that, although some adenocarcinomas had been linked to herbicide exposure, he was not aware of data regarding herbicides increasing the risk of this adenocarcinoma in particular. He concluded that he could not definitively say that herbicides caused the Veteran's cancer but neither could he rule it out. The Board affords little probative weight to these purported medical opinions. 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). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). The Veteran's statements in support of his claim and the medical opinions are based on physicians' statements framed in "may" and "could" terms. The Board finds that these are not an adequate basis on which to award service connection. The Veteran's service, VA, and private treatment records do not address the question of whether the esophageal adenocarcinoma was attributable to service. These records are not relevant to this element of the claim. The Veteran has submitted a series of articles from the Internet regarding esophageal disorders and esophageal cancer. A medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated opinion. Sacks v. West, 11 Vet. App. 314 (1998); see also Wallin v. West, 11 Vet. App. 509 (1998). Review of these articles reveals that they do not actually relate esophageal cancer to herbicide exposure. The articles indicate that esophageal adenocarcinoma, which is the type of cancer present here, is associated with the presence of Barrett's esophagus, reflux disease, and obesity. Studies also showed a relationship between long standing reflux symptoms and risk of adenocarcinoma. A National Institutes of Health article states that no signs or symptoms are associated with Barrett's esophagus but it is frequently found in those with reflux disease. The article indicates that a small number of people may develop cancer as a result of the condition. The article also indicates that the causes of Barrett's esophagus are not known, but that reflux disease is a risk factor. Another article is a list of abstracts describing medical research on prognostication and treatment of Barrett's adenocarcinoma. An American Cancer Society article is incomplete, ending only a few paragraphs into the discussion of esophageal cancer. It does not provide any relevant information unavailable elsewhere. There is also an article from WebGERD indicating that those with longstanding reflux disease had a higher likelihood of developing the adenocarcinoma. A portion of the Merck Manual was copied for the record; it shows that nearly all patients with adenocarcinoma had Barrett's metaplasia. The Board emphasizes that the February 2009 letter from Dr. E. indicates that the Veteran was not obese and did not have symptomatic esophageal reflux. These treatise articles are not probative because the Veteran does not have the risk factors identified in the literature. Furthermore, these treatise articles do not address or mention environmental hazards as a possible or suspected cause of esophageal adenocarcinoma. The articles are not, therefore, material to the question presented in this question. Some VA documents were also associated with the record. A portion of the M21-1-MR Adjudication Manual shows that gastrointestinal tract tumors were not associated with herbicide exposure. An August 2008 Agent Orange Review, published for Vietnam veterans, outlines the then-current list of disabilities associated with herbicide exposure. These do not support the claim. There are also Wikipedia articles in the record. The Board notes that Wikipedia is an open-source website where submissions may be made on any topic and are subject to ongoing subjective peer revision and editing without restriction by any party with access to the website throughout the world. Further, there is presently no centralized authority governing content and objectively ensuring the factual correctness of any Wikipedia submission. As such, the credibility of any facts presented on Wikipedia is deemed to be highly questionable. The Board does not assign probative value to such unreliable sources. The Veteran has also submitted two previous Board decisions in other veterans' cases which granted service connection for esophageal cancer based on herbicide exposure. The Veteran has stated that he does not understand why the claims were granted in these others cases but not in his. The answer is that the Board decisions are not precedential and are decided on the individual facts of the case, which are different from the facts in this Veteran's case. 38 C.F.R. § 20.1303 (2012). The Board decisions in other cases carry no precedential value or probative weight in this Veteran's case. In sum, the evidence offered in support of the claim is either not relevant or not a sufficient basis on which to relate the Veteran's esophageal cancer to the established herbicide exposure during service. The offered evidence did trigger the duty to assist in obtaining a medical examination and opinion. See McLendon, supra. The RO arranged for a VA examination to obtain a medical opinion in this case regarding a nexus between herbicide exposure and esophageal cancer. RO noted that one of the decisions, under Docket No. 04-17 060, contained an extensive discussion of a favorable medical opinion which formed the basis of the Board's grant of service connection. The Veteran was seen for a July 2009 VA examination in connection with this claim. The report indicates that the examiner discussed the question in this case, a relationship between herbicide exposure and esophageal adenocarcinoma, with the Veteran and his wife. The report includes the examiner's opinion that the two are not medically related at this time. The VA examiner reviewed the National Academies of Science Institute of Medicine "Veterans and Agent Orange" publications up through the then most recent updates. The Veteran described shooting pain in his abdomen beginning two years previously, but his wife disagreed and claimed it had been five years. The Veteran described many diagnostic procedures prior to the November 2008 endoscopy which found the cancer. The examiner discussed the private treatment records in detail. The Veteran recounted his personal and family medical history. The examiner provided a discussion of the medical literature including the favorable medical opinion contained in the prior Board decision Docket No. 04-17 060. The examiner was highly critical, noting instances where the opinion's statement of medical principles was contrary to literature and where the opinion had confused possibility for probability. The examiner stood by the Institute of Medicine methodology and conclusions in concluding that the cancer was not at least as likely as not related to herbicide exposure. This opinion is entitled to significant probative weight. The examiner has grounded his opinion in the latest medical research on a complex and difficult area. Since the 2009 opinion was offered, additional updates of the "Veterans and Agent Orange" publication have been issued. See, e.g., 77 Fed.Reg. 47,924 (Aug. 10, 2012). These more recent updates do not tend to undermine the examiner's rationale. The examiner has also addressed the favorable opinion contained in the prior Board decision and explained its inadequacies. In light of the foregoing, the preponderance of the evidence is against a relationship between the Veteran's esophageal cancer and his in-service herbicide exposure. The evidence in favor of the claim consists of the Veteran's statements and the opinions of Drs. K. and E. As discussed, this evidence is entitled to little probative weight. The 2009 VA opinion is competent, credible and entitled to significant probative value. The treatise articles and treatment records are not relevant to the issue in this case. The 2009 VA opinion outweighs the evidence in favor of the claim. The Board concludes that service connection is not warranted on a direct basis. See Shedden; see also Combee, supra. The Board finds that esophageal cancer was not manifest within one year of separation from service; therefore, the presumptive service connection provisions for malignant tumors that manifest to a degree of 10 percent within one year from service have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Veteran's esophageal cancer was not discovered until November 2008, more than forty years after his separation from service. The earliest allegation of abdominal symptoms was shooting pains about five years prior to the July 2009 VA examination report, as discussed above. The Veteran does not allege and the evidence of record does not suggest that the cancer was manifest within one year of his separation from service in October 1967. The Veteran cannot benefit from the presumption. For these reasons, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for esophageal cancer, including as due to herbicide exposure during service. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for esophageal cancer, including as due to herbicide exposure, is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs