Citation Nr: 1316491 Decision Date: 05/20/13 Archive Date: 05/29/13 DOCKET NO. 08-28 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for pheochromocytoma, to include as a result of exposure to Agent Orange. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1966 to February 1967 and from November 1968 to August 1970. He served in combat in the Republic of Vietnam from October 1969 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. The claim was initially certified to the Board by the Detroit, Michigan RO. This appeal was previously remanded by the Board in November 2012 for additional development. The issue has now been returned to the Board for further appellate consideration. As noted in November 2012, the issue of entitlement to service connection for hypertension has been raised by the record, but it remains unadjudicated by the RO. Therefore, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate and IMMEDIATE action. As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claim, known as Virtual VA. A review of the documents in such file reveals that they contain VA treatment records relevant to the issue on appeal. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's pheochromocytoma was due to an in-service disease or injury, to include exposure to Agent Orange, and was not present to a compensable degree within the first year after discharge from service. CONCLUSION OF LAW Pheochromocytoma, to include due to Agent Orange exposure, was not incurred or aggravated during the Veteran's active duty service, and it may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 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 FINDING AND CONCLUSION Veterans Claims Assistance Act The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in February 2007 of the information and evidence needed to substantiate and complete a claim, including notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations for these issues are in order. Pursuant to the November 2012 remand, the Appeals Management Center (AMC) sent the Veteran a letter requesting that he submit additional information regarding treatment for pheochromocytoma. The AMC acquired all relevant VA treatment records, associated them with the Veteran's Virtual VA file, and afforded the appellant a VA examination. Hence, the Board finds that the RO/AMC has substantially complied with the November 2012 remand instructions, and no further action is warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Relevant Laws and Regulations Direct service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be demonstrated either by showing direct service incurrence or aggravation, as discussed above, or by use of applicable presumptions, if available. 38 C.F.R. § 3.303(a); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic disabilities, including endocrinopathies, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active duty. 38 C.F.R. § 3.309(a). 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, such as Agent Orange, 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). Certain diseases are deemed associated with herbicide exposure, under current VA law. The list of those diseases does not include pheochromocytoma. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307, 3.309. The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See 75 Fed,Reg, 81,332 (2010); 72 Fed. Reg. 32,395 (2007). The United States Court of Appeals for the Federal Circuit has held, however, that a claimant is not precluded from establishing service connection with proof of actual direct causation. Combee, 34 F.3d at 1042. In other words, the fact that a veteran did not meet the requirements for service connection on a presumptive basis does not in and of itself preclude the establishment of service connection as entitlement may alternatively be established on a direct basis. In order to prevail on the issue of service connection there must be medical evidence of a disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Analysis The Veteran contends that he has pheochromocytoma as a result of Agent Orange exposure during his service in Vietnam. In numerous written statements and in testimony at an August 2011 RO hearing, the Veteran has described how in the mid or late 1970s he first began experiencing symptoms of hypertension, such as pounding and fast heart rate, chest pain, and a burning sensation in his hands. These symptoms were ultimately connected to pheochromocytoma, a benign tumor in the Veteran's right adrenal gland. This disorder was diagnosed in November 2002 and the appellant had the tumor surgically removed in December 2002. While the Veteran's symptoms have lessened since the surgery, he alleges that he continues to have hypertension and undergo scans of his remaining adrenal gland. The Veteran argues that pheochromocytoma was caused by exposure to Agent Orange because there is no history of this disorder in his family or other known reason for him to have contracted pheochromocytoma. The Veteran's service treatment records are silent for any complaints or treatment relating to pheochromocytoma, cancer, hypertension, or diseases of the adrenal glands. The Veteran did serve in combat in the Republic of Vietnam. The Veteran's private treatment records show that in November 2002 he reported having had trouble with "mild hypertension over the years," but that recently he had experienced frequent spells of "heart racing and head pounding." A CT scan found a small, right adrenal mass. In December 2002, the Veteran underwent a right adrenalectomy to remove the right adrenal gland and the mass, which was found to be benign. VA treatment records show that the Veteran has continued to take medication for hypertension and his adrenal gland is monitored by his private physician. In June 2007, the Veteran underwent an Agent Orange examination. The Veteran reported that for 20 years he has had symptoms of palpitation, rapid heart rate, and head pounding, leading to the diagnosis and surgery for a pheochromocytoma in 2002. The appellant has continued to have follow-up examinations for that condition. The Veteran also reported that chest CT scans had showed lung nodules. The examiner diagnosed status post pheochromocytoma removed, but offered no comment as to the etiology of the disorder. An August 2007 note from the Veteran's VA physician indicates that the appellant had asked her about the relationship between his pheochromocytoma and Agent Orange. The physician then wrote that she was "not aware that the pheochromocytoma that he had is related to Agent Orange. It can be associated with other medical conditions." In December 2012 the Veteran was afforded a VA examination. The examiner reported reviewing the Veteran's claims file and VA treatment records, and he discussed his history. The examiner found no indication of pheochromocytoma in service or within one year of leaving service. The Veteran reported that he had an adrenalectomy in 2002 and symptoms of hypertension for over 10 years prior to that. The appellant also reported that CT scans had not revealed any additional adrenal gland abnormality since. Physical examination revealed a small upper abdominal surgical scar but no additional surgical residuals. The examiner ultimately opined that although the Veteran strongly believed his pheochromocytoma to be caused by exposure to Agent Orange, he found that it was less likely than not that pheochromocytoma is connected to service because the disease is not presumptively associated with herbicide exposure and because there was no medical literature suggesting a causative association between pheochromocytoma and Agent Orange. After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against entitlement to service connection for pheochromocytoma. While the Veteran served in the Republic of Vietnam and was exposed to Agent Orange, with regard to the question of entitlement to service connection for pheochromocytoma on a presumptive basis due to Agent Orange, the presumption is not applicable because that disorder is not included on the list of diseases associated with herbicide exposure for purposes of the presumption. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). While other types of cancerous tumors are included in the list of diseases, there is no evidence that the Veteran's pheochromocytoma was ever malignant. Therefore, pheochromocytoma cannot be presumed to have resulted from that exposure. Indeed, as noted in the remand, in September 2011, the National Academy of Sciences (NAS) issued Veterans and Agent Orange: Update 2010 (Update 2010), and the Secretary of VA determined, based upon Update 2010 and prior NAS reports, that a presumption of service connection based on exposure to herbicides in the Republic of Vietnam was not warranted for endocrine cancers (including thyroid and thymus). See 75 Fed. Reg. 81,332 (Dec. 27, 2010). Pheochromocytoma is a tumor of the adrenal medulla or sympathetic paraganglia of the adrenal gland tissue, and adrenal glands are endocrine glands. See Dorland's Illustrated Medical Dictionary, 1432 (32nd ed. 2012). Notwithstanding the presumption, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disorder resulting in disability was in fact causally linked to such exposure. Combee, 34 F.3d at 1044. However, here, there is no competent evidence of record showing that the Veteran's pheochromocytoma was caused by exposure to Agent Orange, that it was compensably disabling within a year of separation from active duty, or that it was otherwise related to service. The Veteran's service treatment records are silent for any complaints, treatment, or diagnosis of pheochromocytoma or any other type of cancer or adrenal gland disorder during service. The first diagnosis of pheochromocytoma was in 2002, i.e., over 30 years after the Veteran's separation from active duty. See Maxson v. Gober, 230 F.3d 1330, 1332 (Fed. Cir. 2000) (a lengthy lapse of time of a showing of a disease or injury is a factor for consideration in deciding a service connection claim). The Veteran has asserted that related symptoms actually began in the mid to late 1970s, but even assuming that claim to be true, it would still mark a significant passage of time after his separation from active duty in 1970. Such an argument does not afford him the chronic disorder presumption for service connection based on manifestation to a compensable degree within one year of discharge from active duty. 38 C.F.R. §§ 3.307, 3.309(a). The Veteran's only allegation regarding a relationship between the diagnosis of pheochromocytoma and service is the fact that he was exposed to Agent Orange while in Vietnam. The Veteran has made no allegation and has presented no competent evidence that he had problems from this disorder in service or within one year after his separation from active duty. The Veteran states that his primary care physician, as well as his VA doctor, have told him that his pheochromocytoma could have been caused by exposure to Agent Orange but were unwilling to put their statements into writing. While the United States Court of Appeals for Veterans Claims has held that under VA's duty to assist, a VA doctor is not at, "liberty to refuse to provide a medical nexus opinion after orally indicating to a veteran that he believes his condition is connected to service," Crutcher v. Nicholson, U.S. Vet. App. No. 03-1025 (Jan. 24, 2006), at his August 2011 RO hearing the Veteran was unable to provide the names of the doctors who had supposedly made those opinions, and he has not provided their names to VA for follow-up inquiry. The Veteran's private physician's records regarding treatment for pheochromocytoma are silent for any mention of Agent Orange. The only discussion of Agent Orange's relationship to pheochromocytoma in his VA treatment records is the VA physician's August 2007 statement that she was not aware of any relationship. Although the Veteran may believe that doctors have told him that a relationship between his pheochromocytoma and Agent Orange may exist, a lay person's account of what a doctor purportedly said, filtered through the sensibilities of a layperson, is "too attenuated and inherently unreliable" to constitute competent medical evidence. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995). The only remaining evidence suggesting that the Veteran's pheochromocytoma is related to his exposure to Agent Orange are his own lay statements. In many written statements and his August 2011 RO hearing, the Veteran argued that exposure to Agent Orange was the likely cause of his pheochromocytoma because there was no history of this disorder in his family. But whether such exposure caused the pheochromocytoma is not a question subject to the opinion of a lay person. As a layperson the appellant is competent to report on certain matters observed or within his personal knowledge, Layno v. Brown, 6 Vet. App. 465, 470 (1994), but the Veteran is not competent to etiologically link a medical disorder such as pheochromocytoma to either service or herbicide exposure. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The etiology of pheochromocytoma is a complex question, as whether or not certain substances cause that disease is the subject of medical research by experts, and is not a question that can be answered by sensory observation. Hence, his assertions in this regard do not constitute competent and persuasive evidence in support of the claim for service connection. Far more probative is the opinion of the December 2012 VA examiner, which, based on an adequate examination and review of the Veteran's history, found no relationship between pheochromocytoma and service. For the foregoing reasons, entitlement to service connection for pheochromocytoma must be denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit of the doubt doctrine, however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107. ORDER Entitlement to service connection for pheochromocytoma, to include as a result of exposure to Agent Orange, is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs