Citation Nr: 1314501 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 06-31 292 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for esophageal cancer, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and E.V. ATTORNEY FOR THE BOARD B. Ogilvie, Counsel INTRODUCTION The Veteran served on active duty from March 1965 to February 1967, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals on appeal from a November 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The November 2005 rating decision declined to reopen the Veteran's claim for service connection because the evidence he submitted was not new and material. In December 2007, the Veteran testified at a Board hearing before the undersigned. A copy of the transcript is associated with the claims file. In February 2010, the Board found that new and material evidence had been received, and reopened the Veteran's claim. The Board thereafter remanded the case to the Agency of Original Jurisdiction (AOJ) for further development. In March 2011, the Board remanded the case, again, to the AOJ for further development. The development was completed, and the case is again before the Board. FINDINGS OF FACT 1. Although the Veteran had active service in the Republic of Vietnam during the Vietnam Era, and thus may be presumed to have been exposed to herbicide agents (to include Agent Orange) during service, esophageal cancer is not among the diseases the Secretary has recognized as etiologically related to herbicides exposure. 2. Esophageal cancer was first manifested many years following separation from service, and the preponderance of the credible, probative evidence weighs against the existence of a nexus between any such cancer and the Veteran's military service (to include any Agent Orange exposure therein). CONCLUSION OF LAW Esophageal cancer was not incurred in or aggravated by the Veteran's active duty service, to include as due to herbicide exposure, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claims, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claims, in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 was revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. A claimant must also be provided with information pertaining to assignment of disability ratings, as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the AOJ-in this case, the RO and Appeals Management Center. Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. In this appeal, in a September 2005 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection, as well as what information and evidence must be submitted by him, and what information and evidence would be obtained by VA. Post-rating, a May 2010 letter provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After issuance of the above-described notice, the claim was readjudicated, most recently in March 2012. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (finding that the issuance of a fully compliant notification followed by readjudication of the claim, such as a Supplemental Statement of the Case, is sufficient to cure a timing defect). All relevant evidence necessary for an equitable resolution of the Veteran's claim has also been identified and obtained. The evidence of record includes VA outpatient treatment records, report of a June 2010 VA examination, the transcript of a September 2010 hearing before the undersigned, an April 2011 VA opinion, a December 2012 VA expert opinion, a copy of a 1990 VA Report to the Secretary, various internet articles, and statements from the Veteran and his representative. The Veteran and his representative have not identified any other outstanding relevant evidence. The Veteran was afforded a VA examination to assess the nature and etiology of his esophageal cancer in June 2010. He was also provided with VA opinions in April 2011 and December 2012. The report of this examination is adequate as it reflects that the examiners interviewed and examined the Veteran, reviewed the claims file, and reported the clinical findings in detail. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (finding that VA must provide an examination that is adequate for rating purposes). While the opinions provided in June 2010 and April 2011 were inadequate, the December 2012 VA expert opinion provided a clear opinion, with complete rationale for the conclusions stated. The physician discussed the relevant evidence from the claims file as well as his reasoning for arriving at his conclusion in full detail. The Board also notes that the case was most recently remanded in March 2011 to provide the Veteran with an addendum opinion as to the etiology of his claimed esophageal cancer. On remand, as noted above, an opinion was provided in April 2011. The physician, however, was unable to answer the question without resort to speculation. Therefore, in November 2012, the Board forwarded the claims file to a physician for an expert opinion on the matter. An adequate opinion was received in December 2012. Accordingly, the Board finds that there was substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Analysis Under the applicable criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served continuously for 90 days or more during a period of war or during peacetime service after December 31, 1946 and a malignant tumor becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Also, while the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree. 38 C.F.R. § 3.307(c). The Veteran contends that his esophageal cancer was caused by his exposure to herbicides (specifically, Agent Orange) during his military service in Vietnam, and that service connection is thus warranted. In July 1998, the Veteran underwent an upper gastrointestinal (GI) series to evaluate a complaint of dysphasia. The upper GI series revealed an esophageal mass, which, upon further evaluation, was found to be esophageal carcinoma. The Veteran underwent esophagogastrectomy later that month. In August 1998, final pathology revealed a moderately differentiated squamous cell carcinoma with negative margins and one negative lymph node. The Veteran has not had a recurrence of the esophageal cancer. In January 2000, the Veteran underwent a general endotracheal with epidural to remove an apple core lesion in his esophagus. CT scan prior to the surgery revealed no evidence of metastatic disease. The Veteran argues that his in-service exposure to herbicides, through inhalation and through ingested foods, caused his esophageal cancer. VA regulations provide that a veteran who had active military, naval, or air service 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 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to a herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type II diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), 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) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). In addition, effective August 31, 2010, VA amended 38 C.F.R. § 3.309(e) to add hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease to the list of diseases associated with exposure to an herbicide agent (to include Agent Orange). 75 Fed. Reg. 53202-53216 (August 31, 2010). Esophageal cancer is not a disability for which presumptive service connection is warranted. In fact, the Board finds it significant that VA has specifically determined that the presumption of service connection based on herbicide exposure is not warranted for gastrointestinal tract tumors, including esophageal cancer. This finding is based on consideration of reports of the National Academy of Sciences and all other sound medical and scientific information and analysis available to VA. See, e.g., 59 Fed. Reg. 341 (Jan. 4, 1994); 61 Fed. Reg. 41,442 (Aug. 8, 1996); 64 Fed. Reg. 59,232 (Nov. 2, 1999); 67 Fed. Reg. 42,600 (June 24, 2002); 68 Fed. Reg. 27,630 (May 20, 2003); 72 Fed. Reg. 32,395 (June 12, 2007); 75 Fed. Reg. 32,540 (June 8, 2010); 75 Fed. Reg. 81,332 (Dec. 27, 2010). Thus, entitlement to service connection for esophageal cancer as related to herbicide exposure, on a presumptive basis, is not warranted. Notwithstanding the presumption, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disorder was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C.A. §§ 1113(b), 1116 and 38 C.F.R. § 3.303. The Veteran submitted a statement from his treating physician, dated in April 2003. In the statement, the physician explained that he had been treating the Veteran for esophageal cancer over the past four years and six months. He reviewed the Veteran's treatment records, and wrote "unclear" in response to a question that asked, "[i]n your opinion, is it at all possible that the veteran's esophageal cancer could have [m]anifested itself from the broncus, larynx, or trachea since they are anatomically located in the same region?" In the comment section, the private physician noted that the Veteran had explained to him that respiratory cancers are included in those related to Agent Orange. He further noted that "[t]he risk factors for respiratory cancers were generally felt to be the same risk factors that lead to esophageal cancers" (emphasis in the original). He stated that he, therefore, believed that it was a logical step to say that if Agent Orange can lead to respiratory cancer and the VA accepts that, he had no trouble with the thought that it can lead to esophageal cancer as well, and the same disability rights and coverage should apply. In June 2010, the Veteran was afforded a VA examination, where he was diagnosed with squamous cell carcinoma of the esophagus, moderately differentiated, penetrating into esophageal adventitia, status-post esophagogastrectomy in 1998. The physician opined that although the Veteran was exposed to Agent Orange during the Vietnam War through inhalation or consumption of contaminated food, his diagnosis of esophageal cancer was not yet a presumed condition recognized as service connected based on exposure to Agent Orange. The examiner did not address whether the Veteran's esophageal cancer was etiologically related to service, to include his in-service exposure to herbicides, on a direct basis. In March 2011, the Board remanded the claim for an addendum opinion by this physician to address the unanswered question of whether the Veteran's esophageal cancer was etiologically related to service, to include in-service exposure to herbicides, on a direct basis. After a review of the record, the physician found that she could not resolve the question of whether the Veteran's esophageal cancer was caused by an event, injury, or disease in service (to include exposure to herbicides) without resort to speculation. In so finding, she noted that a detailed and thorough search of the medical literature did not reveal any established link between herbicide exposure and the development of esophageal cancer. She also noted that a detailed review of the service treatment records did not show any treatment for an esophageal condition or any other condition that would predispose the Veteran to the development of esophageal cancer. She found that the entire content of the April 2003 statement by the Veteran's treating physician was speculative and not supported by established medical scientific data. The physician decided that, in the absence of established scientific data linking esophageal cancer and herbicide exposure, she could not answer the question without resort to mere speculation. The United States Court of Appeals for Veterans Claims (Court) has explained that opinions which contain the "mere speculation" language, without more, amount to "nonevidence" neither for nor against the claim because service connection may not be based on speculation or remote possibility. See Bloom v. West, 12 Vet. App. 185 (1999) (holding that a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). In November 2012, the Board forwarded the Veteran's claims file to a physician for an expert opinion. After a full review of the claims file, the physician opined that it was less likely than not that the Veteran's esophageal cancer was caused by an event, injury, or disease in service, to include herbicide exposure. In a lengthy and detailed statement, the physician explained his rationale for his opinion. He noted that 90 percent of cases involving squamous cell carcinoma of the esophagus have a history of cigarette smoking or heavy alcohol use, and together, these risk factors increase the risk more than individually. He recognized that, to date, esophageal cancer had not been given presumptive status as being caused by Agent Orange in Vietnam veterans, even though the National Academy of Sciences reviews the evidence every two years. The physician acknowledged, that although it was possible that many environmental factors interact to cause cancer, the detailed research to date had not concluded that Agent Orange caused esophageal cancer. Given the above data, he found that he was unable to conclude, with 50 percent or greater probability, that Agent Orange exposure in service, or any event, injury, or disease in service, caused the Veteran's esophageal cancer. He explained that there was not anything unusual about the Veteran's esophageal cancer that would cause one to look for risk factors other than his heavy cigarette smoking and alcohol use, which was the usual history of the great majority of patients presenting with squamous cell esophageal cancer and those patients did not have Agent Orange exposure. He noted that there was an estimated 17,000 new cases of esophageal cancer in the United States annually, and the combined use of heavy cigarette smoking and heavy alcohol use presented an extremely strong increase in risk for squamous cell carcinoma of the esophagus. The physician also reviewed the private physician's April 2003 statement. He noted that respiratory cancers (which have been associated with Agent Orange after detailed epidemiologic studies by the Institute of Medicine) shared some common risk factors (such as smoking) with esophageal cancer, but this did not allow him to conclude with 50 percent probability or greater that Agent Orange caused the Veteran's esophageal cancer when epidemiologic research did not draw that conclusion and therefore did not list Agent Orange as a presumptive cause of esophageal cancer. He noted that "[a]lthough it is possible, that conclusion would be [as] speculative as is [the 2003 private physician's] statement." In considering conflicting opinions of record, it is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). A medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board finds the December 2012 VA opinion to be the most probative medical opinion on the question of whether the Veteran's esophageal cancer is related to his service, to include herbicide exposure. The physician's opinion was based upon full consideration of the Veteran's service and post-service records, as well as supported by a very detailed and thorough rationale. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); Gbrielson v. Brown, 7 Vet. App. 36, 40 (1994) (the probative value of a physician's opinion depends in part on the reasoning employed by the physician and whether or not (or the extent to which) he reviewed prior clinical records and other evidence). The physician also considered the private opinion of record and discussed the problems contained in that opinion. Thus, the Board accepts this opinion as highly probative evidence on the question of a nexus between the Veteran's diagnosis of esophageal cancer and service, to include herbicide exposure. Regarding the April 2003 private opinion, the Board finds that the physician's statement was a more of a general policy statement, and less of a nexus opinion related specifically to the Veteran's case. Instead of directly commenting on the Veteran's particular case, the physician stated that it was a logical step to say that esophageal cancer should be deemed related to Agent Orange, and the same disability rights and coverage that are afforded to respiratory cancers should apply to esophageal cancer. As noted above, VA has specifically determined that the presumption of service connection based on herbicide exposure is not warranted for gastrointestinal tract tumors, including esophageal cancer, based on findings provided by the National Academy of Sciences. As the April 2003 statement by the Veteran's private physician only addressed an issue already resolved by VA, and did not address whether a nexus existed between the Veteran's esophageal cancer and service, the Board affords his opinion no probative weight in resolving the etiology question at issue. In short, the most competent, credible, and probative medical opinion weighs against the existence of a nexus between the Veteran's esophageal cancer and his exposure to herbicides in service. The Board further finds that the record does not otherwise provide a basis to award service connection for esophageal cancer. The service treatment records are completely negative for findings or diagnoses of any cancer, and there is no medical evidence that any esophageal cancer was manifested (to any degree) during the first post-service year. Hence, the legal authority governing presumptive service connection for malignant tumor as a chronic disease is of no avail to the Veteran. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In fact, the first objective evidence of esophageal cancer is reflected in July 1998 VA treatment records-many decades after the Veteran's service. The Board notes that the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Significantly, the claims file includes no credible medical evidence or opinion suggesting that there is a relationship between the Veteran's esophageal cancer and his military service, and neither the Veteran nor his representative has presented or identified any such evidence. Although the Veteran has presented an opinion from his private examiner who noted that he believed it was a "logical step" to say that general exposure to herbicides can lead to esophageal cancer, as explained in detail above, the opinion does not address the Veteran's own esophageal cancer or provide a nexus opinion between the Veteran's own diagnosed cancer and his service. Furthermore, any direct assertions by the Veteran and/or his representative that there exists a medical relationship between the Veteran's esophageal cancer and his service provides no basis for allowance of the claim. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case-whether esophageal cancer is etiologically related to service (to include herbicide exposure)-falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Hence, the lay assertions in this regard have no probative value. The Board has also considered various internet articles submitted by the Veteran, including a 1990 VA Report submitted by the Veteran, entitled, "Report to to [sic] [the] Secretary of the Department of Veterans Affairs on the Association Between Adverse Health Effects and Exposure to Agent Orange." The report was created by the Special Assistant to the Secretary to assist him in determining whether it was at least as likely as not that there was a statistical association between exposure to Agent Orange and specific adverse health effect. In his findings, he concluded that there was adequate evidence for the Secretary to "reasonably conclude" that it is at least as likely as not that there is a relationship between exposure to Agent Orange and esophageal cancers. The Board, however, does not find this evidence to be probative. First, this report to the Secretary, dated 23 years ago, is simply the Special Assistant's opinion regarding his interpretation of scientific literature. VA has made its own determination whether a presumption for service connection for esophageal cancer is warranted based on frequent research conducted by the National Academy of Sciences. While the Special Assistant personally concluded that there was adequate evidence to create a presumption for esophageal cancer based on herbicide exposure, VA, as an agency, has determined otherwise. Further, this information is general information regarding the establishment of a presumption and has no bearing on the Veteran's own case. As such, the Board finds that this evidence is too general and inclusive to be of any probative value. Sacks v. West, 11 Vet. App. 314, 317 (1998) (a medical article that contained a generic statement regarding a possible link between a service-incurred mouth blister and a present pemphigus vulgaris condition did not satisfy the nexus element); see also Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). Similarly, the other internet articles of record generally discuss herbicide and esophageal cancer and nothing related to the details of the Veteran's own case; for the same reasons, the Board affords them no probative weight. Finally, the Veteran has submitted several Board decisions relevant to service connection for esophageal cancer in veterans with Vietnam service and presumed exposure to herbicide. Board decisions are not precedential and are decided on the individual facts of the case. 38 C.F.R. § 20.1303 (2012). Here, as explained above, the Board has found that the facts of the Veteran's case do not warrant entitlement to service connection for esophageal cancer. Under these circumstances, the Board finds that the claim for service connection for esophageal cancer, to include as due to herbicide exposure, must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for esophageal cancer, to include as due to herbicide exposure, is denied. ____________________________________________ LAURA H. ESKENAZI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs