Citation Nr: 1311733 Decision Date: 04/09/13 Archive Date: 04/19/13 DOCKET NO. 09-13 008 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUE Entitlement to service connection for adenocarcinoma of unknown origin, claimed as due to exposure to herbicides. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to December 1971. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision that, in pertinent part, denied service connection for adenocarcinoma of unknown origin. The Veteran timely appealed. In August 2010, the Veteran testified during a hearing before a former Veterans Law Judge. In September 2010, the Board remanded the matter for additional development. In June 2012, the Board duly notified the Veteran that the Board no longer employed the Veterans Law Judge that conducted the August 2010 Board hearing and that he had the right to another Board hearing. No response to the notice was received. In October 2012, the Board requested a medical expert opinion from the Joint Pathology Center (JPC) for purposes of addressing medical questions for an equitable disposition of the appeal. See 38 C.F.R. § 20.901 (2012). This opinion was obtained in December 2012 and has been associated with the claims file. Pursuant to 38 C.F.R. § 20.903, the Veteran was sent a notice letter following the Board's receipt of the December 2012 opinion. This letter informed the Veteran that he had 60 days to submit any additional evidence or argument. This letter was accompanied by a Medical Opinion Response Form, on which the Veteran could choose whether to have his case remanded to the Agency of Original Jurisdiction (AOJ) for initial consideration of any new evidence he submitted. In April 2012, the Veteran submitted a personal statement and indicated that he had not received the medical opinion, which apparently had crossed in the mail; and he submitted a medical statement reflecting current treatment for gastroesophageal carcinoma. In February 2013, the Veteran submitted a response form that indicated he had no evidence or argument to submit; and that requested the Board hold his case for the remainder of the 60-day response period, as he may have additional materials to submit. Thereafter, in April 2013, the Veteran's representative submitted a waiver of initial consideration of the evidence by the RO and preparation of a supplemental statement of the case (SSOC). While evidence generally submitted by the Veteran or representative in response to § 20.903 notification is referred to the AOJ for review unless the Veteran waives this procedural right, situations where a medical expert opinion is obtained by the Board under the authority of 38 C.F.R. § 20.901 are not subject to initial review by the RO. See 38 C.F.R. § 19.9(c)(1). Specifically, the Board is not required to afford a claimant the opportunity to have a claim readjudicated by the AOJ when the only new evidence of record consists of a newly-obtained medical expert opinion. Accordingly, the Board need not remand this case for AOJ review of the December 2012 opinion. Furthermore, the Board has reviewed the personal statement from the Veteran and the medical treatment record, which is cumulative of evidence already of record and does not alert VA to any evidence that is not yet of record. Therefore, the Board concludes that a remand for AOJ review of the Veteran's December 2012 and February 2013 submissions is not necessary. FINDING OF FACT Adenocarcinoma of unknown origin was not present during active service or within the first post-service year, and is not otherwise related to service. CONCLUSION OF LAW Adenocarcinoma of unknown origin was not incurred in or aggravated by service, and may not be presumed to be related to service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3). Through an October 2007 letter, the RO notified the Veteran of elements of service connection and the evidence needed to establish each element. This document served to provide notice of the information and evidence needed to substantiate the claim. VA's letter notified the Veteran of what evidence he was responsible for obtaining, and what evidence VA would undertake to obtain. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA informed him that it would make reasonable efforts to help him get evidence necessary to support his claim, particularly, medical records, if he gave VA enough information about such records so that VA could request them from the person or agency that had them. In the October 2007 letter, the RO specifically notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Defects as to the timeliness of the statutory and regulatory notice are rendered moot because the Veteran's claim on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction (AOJ) after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran's representative specifically waived AOJ consideration of the additional evidence submitted in December 2012 and in February 2013; hence, no re-adjudication followed and no supplemental statement of the case (SSOC) was issued. There is no indication that any additional action is needed to comply with the duty to assist the Veteran. The RO or VA's Appeals Management Center (AMC) has obtained copies of the service treatment records and outpatient treatment records, and has arranged for a medical expert opinion following a review of tissue specimens and pathology slides in connection with the claim on appeal, a report of which is of record and appears adequate. The opinion expressed therein is predicated on a substantial review of the record and consideration of the Veteran's complaints and symptoms. The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claim. 38 U.S.C.A. § 5103A(a)(2). II. Analysis Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C.A. §§ 1110, 1131. 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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). With respect to the showing of chronic disease, there must be a combination of sufficient manifestations to identify the disease entity and sufficient observation at the time, as distinguished from isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303 (2012). In this case, the Veteran contends that adenocarcinoma of unknown origin is related to disease or injury sustained in active service, or is the result of exposure to herbicides in service. The Veteran is in receipt of the Vietnam Service Medal and the Vietnam Campaign Medal with 60 Device; he served in the Republic of Vietnam from September 1969 to July 1970, and is presumed to have been exposed to herbicides in service. See 38 U.S.C.A. § 1116(f) (West 2002). VA regulations provide that, if a Veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for certain disorders: Adenocarcinoma is not listed among the diseases presumed to be associated with Agent Orange exposure. 38 C.F.R. § 3.309(e). In this case, the record reflects that the Veteran was first diagnosed with adenocarcinoma of unknown origin in 2007, more than three decades after his military discharge from service. While the adenocarcinoma was aggressively treated and the Veteran currently is on maintenance therapy, he is not entitled to presumptive service connection for adenocarcinoma of unknown origin. Specifically, 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 various cancers-including cancer of the pleura, mediastinum, and other unspecified sites within the respiratory system and intrathoracic organs; esophageal cancer; stomach cancer; pancreatic cancer; and cancers at other and unspecified sites. It was indicated that the National Academy of Sciences, after reviewing pertinent studies, did not feel that the evidence warranted altering its prior determination that there was inadequate or insufficient evidence of an association between exposure to herbicide agents and the subsequent development of other disability. See Notice, 75 Fed. Reg. 32540-32548 (2010). Thus, notwithstanding the fact that the Veteran served in Vietnam during the Vietnam era and is presumed to have had Agent Orange exposure, service connection on a presumptive basis as due to Agent Orange exposure is not warranted for adenocarcinoma. The Board notes, however, that even when the Secretary determines that a disability should not be added to the list of presumptive conditions, a claimant may still establish that service connection is warranted by showing that the claimed disability is at least as likely as not causally linked to herbicide exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). Significantly, in this case, the etiology of the Veteran's adenocarcinoma is unclear. It was initially thought that the adenocarcinoma was consistent with a gastroesophageal location as the primary site. Computed tomography scans in September 2007 also revealed a cystic mass in the head of the pancreas, and a suspected diagnosis of lymphoma. Further testing revealed widespread lymphadenopathy in the Veteran's abdomen and chest, and suggestions that the primary site could be intra-abdominal or in his chest. VA treatment records also include a clinical diagnosis of non-Hodgkin's lymphoma in September 2007. A surgical pathology report, following biopsy at the time, revealed a final diagnosis of metastatic adenocarcinoma, primary site unknown. Private treatment records show that the Veteran underwent various procedures, including radiation and chemotherapy, for metastatic adenocarcinoma of unknown origin. Records show that his clinical presentation, however, was increasingly consistent with a gastroesophageal primary; and evidence of clinical improvement in the disease was noted in November 2007. In August 2008, the Veteran's treating physician, Rudolph Willis, M.D., indicated that the Veteran currently was on additional systemic chemotherapy; and that he had been treated essentially as a patient with a cancer arising in the intestinal tract. Dr. Willis also indicated that there was no clear cut data to indicate that a pancreatic origin of his tumor was the most likely site; and opined that it seemed to be the "least likely site." Computed tomography scans conducted in January 2010 revealed findings suggestive of interval progression of disease, and a finding of recurrent metastatic gastroesophageal junction with intra-abdominal disease was noted in February 2010. In August 2010, the Veteran testified that it was unclear where his cancer started; and it was suggested that the cancer may have started in the lymph nodes, and spread to the pancreas and the digestive system. The Veteran also testified that he was first diagnosed with lymphoma, and that the current diagnosis is adenocarcinoma or gastroesophageal cancer. He then indicated that Dr. Willis replied "yes," in response to whether this was one of the types of cancer caused by Agent Orange; and that Dr. Willis indicated there were probably many other ones that [VA] did not yet know about. The Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Following the Board's September 2010 remand, the Board sought a medical expert opinion from JPC to clarify and address the question of etiology of the Veteran's adenocarcinoma of unknown origin. In October 2012, the expert reviewed the original tissue specimen and slides from 2007, and indicated that the diagnosis of metastatic adenocarcinoma was unchanged; and that the immunohistochemical profile of the tumor did not permit accurate determination of a primary site. The expert indicated that the features seen suggested an upper gastrointestinal or pancreatico-biliary primary, although it was not possible to determine the primary site based on examination of the biopsy material from this site alone. As the primary site cannot be determined, the expert opined that it was not possible to comment on whether the adenocarcinoma was incurred in or aggravated by active service, or was the result of exposure to herbicides in active service, without resorting to speculation. In this regard, the expert explained that a biopsy of an enlarged supraclavicular lymph node was often the first sign of an abdominal tumor, and that this was frequently a manifestation of gastric adenocarcinoma; and that adenocarcinomas arising in other organ sites may metastasize in this fashion. Moreover, the expert was unaware of, and did not have access to, any specific or sensitive test that could unequivocally determine the site of a metastatic deposit of adenocarcinoma as having an origin in the stomach. Further testing of the features of primary and metastatic tumors can be compared to determine whether lesions are related, and whether the lymph node deposit arose as a metastasis from the primary tumor. Lastly, the expert acknowledged that whether gastric carcinoma has a significant association with exposure to herbicides is primarily addressed by epidemiologic studies; and referenced the National Academy of Sciences' findings in 2010 that both stomach cancer and pancreatic cancer are categorized as having "inadequate or insufficient evidence to determine an association" with exposure to herbicides. In a December 2012 medical statement, Dr. Willis indicated that the Veteran presented with gastroesophageal carcinoma; and presented with widely metastatic disease within the abdominal cavity. Dr. Willis indicated that the Veteran had undergone multiple therapies over the past 51/2 years, and that he currently was on maintenance therapy with minimal residual abnormalities. When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical opinion that contains only data and conclusions is not entitled to any weight. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The October 2012 expert reviewed the original tissue specimen and slides, and cited to specific evidence and medical literature to support the opinion. The expert specifically noted that an enlarged lymph node was often the first sign of an abdominal tumor-including manifestation of gastric adenocarcinoma, as well as other adenocarcinomas; and that the diagnosis of metastatic adenocarcinoma of unknown origin remained unchanged. In essence, the expert found that the scientific studies cited were the best evidence of any association between either stomach cancer or pancreatic cancer and exposure to herbicides in active service. The opinion is probative because it is factually accurate, fully articulated, and contains sound reasoning. The Board finds the October 2012 expert opinion to be persuasive on the question of causation-i.e., there is inadequate or insufficient evidence to determine an association among stomach cancer and pancreatic cancer and exposure to herbicides, under the facts and circumstances of this particular case, as supported by scientific studies. Moreover, the expert opinion is consistent with the evidence of record, as well as with Dr. Willis's December 2012 statement. Therefore, the opinion is afforded significant probative value. Nieves-Rodriguez, 22 Vet. App. at 304. While the Veteran contends that the initial clinical findings of lymphoma and non-Hodgkin's lymphoma in 2007 warrant a grant of presumptive service connection for his metastatic adenocarcinoma of unknown origin, he is not shown to have the medical expertise to offer an opinion on such a complex medical question. Rather, the expert's reasoning that lymph node enlargement is often the first manifestation of adenocarcinomas adequately resolved the matter on appeal. The Veteran is not shown to be competent to render an opinion as to the nature of his underlying adenocarcinoma, or to identify that a disability such as adenocarcinoma metastasized from lymphoma and is due to exposure to herbicides in active service. In essence, the Board finds that the issue presented in the case is not one in which the Veteran's lay contentions can serve to support an award of service connection. Here, the evidence of record weighs against a finding that adenocarcinoma was present during active service or within the first post-service year, or is otherwise related to disease or injury in active service-including exposure to herbicides. The Board is within its province to weigh the Veteran's statements and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). As indicated above, the first credible showing of pertinent disability is many years after service with no competent evidence that it is in any way related to active service. In short, for the reasons and bases set forth above, the Board concludes that the preponderance of the evidence is against granting service connection for adenocarcinoma of unknown origin. On this matter, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for adenocarcinoma of unknown origin is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs