Citation Nr: 1322362 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 13-02 432 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for esophageal gastric cancer, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to April 1970. While his claim was pending, the Veteran died in September 2011. The appellant is the Veteran's surviving spouse and is pursuing the appeal as a substituted claimant under the provisions of 38 U.S.C.A. § 5121A (West 2002). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Jurisdiction over this claim is now with the RO in Philadelphia, Pennsylvania. The Veteran submitted a timely Notice of Disagreement (NOD) which was received at the RO in Winston-Salem, North Carolina, in May 2011. In November 2011, the RO in Philadelphia, Pennsylvania, received notice of the Veteran's death in September 2011. In November 2011, the appellant filed a VA Form 21-530, Application for Burial Benefits, and VA Form 21-534, Application for Dependency and Indemnity Compensation (DIC), Death Pension, and Accrued Benefits by a Surviving Spouse or Child. In December 2011, the RO notified the appellant that it was working on her claim for DIC. In a November 2012 memorandum, the RO clarified to the appellant that, pursuant to 38 U.S.C. § 5121A, she is eligible to serve as a substitute claimant to pursue the Veteran's existing claim. The RO explained that the appellant's filing of VA Forms 21-530 and 21-534 was construed as a request to be substituted as the claimant for the purposes of processing the claim to completion. In short, because the Veteran timely appealed the issue of entitlement to service connection for esophageal gastric cancer prior to his death, and because the appellant has been found to be a proper substitute claimant in this case, this issue is currently on appeal to the Board. 38 U.S.C.A. § 5121A. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the file on the Virtual VA system to ensure a complete assessment of the evidence. The issue of Dependence and Indemnity Compensation (DIC), to include service connection for the cause of death (38 U.S.C.A. § 1310), has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran died in September 2011; the appellant is the Veteran's surviving spouse, who was substituted as the claimant to continue the Veteran's pending claim and appeal to completion. 2. The Veteran served in the Republic of Vietnam during the Vietnam Era and is presumed to have been exposed during such service to an herbicide agent, to include Agent Orange (AO). 3. The Veteran had esophageal gastric cancer. 4. The Veteran's esophageal gastric cancer was related to his exposure to AO in service. CONCLUSIONS OF LAW 1. The Veteran's surviving spouse is a proper substitute claimant in this case. 38 U.S.C.A. § 5121A (West 2002). 2. Resolving all reasonable doubt in the appellant's favor, the criteria for service connection for esophageal gastric cancer, for accrued benefits purposes, have been met. 38 U.S.C.A. §§ 1110, 1112, 5107(b), 5121, 5121A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.1000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The claim of service connection for esophageal gastric cancer, to include as due to herbicide exposure, has been considered with respect to VA's duties to notify and assist. Given the favorable outcome noted above, further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Appellant as Substitute Claimant Prior to his death, the Veteran initiated an appeal of the claim. Before a statement of the case was issued, the Veteran died in September 2011. In November 2011, the appellant filed a claim for DIC and Burial Benefits. 38 U.S.C.A § 5121A allows a substitution in the case of the death of a claimant who dies on or after October 10, 2008. This change in law permits any living person who would be eligible to receive accrued benefits, to process any pending claim if a Veteran dies prior to completion. The eligible person must, not later than one year after the date of death, file a request to be substituted as the claimant for the purposes of processing any pending claim to completion. 38 U.S.C.A. § 5121A (West 2002). A veteran's surviving spouse is eligible for receipt of accrued benefits. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. In a November 2012 memorandum, the RO determined that the appellant could properly be substituted as the claimant in the pending appeal. In short, the Veteran died in September 2011 during the pendency of the appeal. The record contains credible evidence that the appellant was married to the Veteran at the time of his death. In November 2011, the appellant submitted timely claims for DIC and Burial Benefits and these applications were construed as the appellant's request to substitute as a claimant in place of her deceased husband pursuant to 38 U.S.C.A. § 5121A, which permits a person otherwise eligible to receive accrued benefits to substitute as the claimant for the purposes of completing the appeal. Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). 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). The following diseases are deemed associated with herbicide exposure, under current VA law: chloracne or other acneform diseases consistent with chloracne, Type 2 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). The foregoing diseases shall be service connected if a veteran was exposed to an herbicide agent during active military, naval, or air service, if the requirements of 38 U.S.C.A. § 1116, 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. 38 U.S.C.A. §§ 501(a), 1116 (West 2002); 38 C.F.R. § 3.309(e). The diseases listed at § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). VA regulations specify that the last date on which a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(iii). The Board observes that esophageal gastric cancer is not listed among those disorders for which service connection may be presumptively warranted based upon exposure to certain herbicide agents. The VA Secretary, under the authority of the Agent Orange Act of 1991 and based on the studies by the NAS, has determined that there is no positive association between exposure to herbicides and any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41,442-449, and 61 Fed. Reg. 57,586-589 (1996); Notice, 64 Fed. Reg. 59,232-243 (Nov. 2, 1999); Notice, 67 Fed. Reg. 42,600-08 (June 24, 2002); Notice, 72 Fed. Reg. 32,395-407 (June 12, 2007); Final Rule, 74 Fed. Reg. 21,258-260 (May 7, 2009); Final Rule, 75 Fed. Reg. 53,202-16 (Aug. 31, 2010). Notwithstanding the foregoing, a veteran may still establish service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167 (1999). "Of particular relevance to an analysis of medical evidence supporting such a nexus are factors such as whether a medical professional finds studies persuasive, whether there are other risk factors that might be the cause of the condition for which benefits are sought, and whether the condition has manifested itself in an unusual manner." Polovick v. Shinseki, 23 Vet. App. 48, 53 (2009). A statistical correlation between AO and a disease not on the presumptive list may not be the only basis for a positive nexus opinion; it may be part of the analysis, but the entirety of the analysis provided by the medical professional must be weighed and considered. Polovick, 23 Vet. App. at 53-54. In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. a 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau at 1372). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). 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). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for Esophageal Gastric Cancer While pursuing the claim for service connection, the Veteran contended that esophageal gastric cancer was a direct result of his exposure to Agent Orange in Vietnam. In statements presented throughout the duration of the appeal, the Veteran maintained that his esophageal gastric cancer was directly related to herbicide exposure during active military service. Service treatment records show that the Veteran served in the Republic of Vietnam. As the evidence of record reflects that the Veteran served in the Republic of Vietnam, exposure to herbicides is presumed. The service treatment records are otherwise absent for complaints of, diagnosis of, or treatment for, any esophageal gastric cancer or symptoms thereof. The Board next finds that the Veteran had a current diagnosis of esophageal gastric cancer. A private pathology report from November 2010 reveals adenocarcinoma of the gastric cardia and gastroesophageal junction. The Board further finds the evidence of record is at least in equipoise on the question of whether the Veteran's esophageal gastric cancer was related to service, specifically exposure to AO during service in Vietnam. In an August 2010 primary care note, the Veteran's treating VA physician wrote that it is well known that exposure to Agent Orange has been linked to the development of a number of cancers, including lung cancer, prostate cancer, cutaneous and non-Hodgkin lymphoma, larynx cancer, and myeloma. The physician noted that the Veteran had no known risk factors for esophageal/gastric cancer, such as H. pylori infection, smoking, or drinking alcohol. Based on this reasoning, the Veteran's treating physician opined that it is more likely than not that the esophageal/gastric cancer is related to Agent Orange exposure in Vietnam. Again, in a December 2010 submission, the same treating VA physician noted that the Veteran was under treatment for cancer of the esophagus and did not have the usual risk factors such as alcohol use, tobacco use, or reflux. The VA physician again opined that the most likely etiologic factor for the Veteran's cancer of the esophagus was exposure to Agent Orange, which he stated has been associated with throat, lung, and prostate cancer. The Veteran served in Vietnam; thus, exposure to AO is recognized. While the Board observes that esophageal gastric cancer is not one the presumptive diseases listed in VA regulations, this does not prevent the Veteran, or now the appellant by substitution, from presenting evidence that would allow for service connection on a direct basis. On the theory of direct service connection, the record contains two medical opinions from the same VA treating physician as to whether the Veteran's esophageal gastric cancer is related to the presumed AO exposure in service. In support of his claim, the Veteran submitted these statements from his physician who had treated him for his esophageal gastric cancer. This VA physician has opined that it is at least as likely as not that the Veteran's esophageal gastric cancer was caused by his exposure to AO. The VA physician's opinion is competent and probative medical evidence because it relies on accurate facts, as it appears the Veteran's treating physician had knowledge of the relevant evidence in this case, and gave a fully articulated opinion that is supported by a sound reasoning. Significantly, there is no other competent medical opinion of record against the claim that directly addresses the etiology of the esophageal gastric cancer. For these reasons, and resolving reasonable doubt in the appellant's favor, the Board finds that the criteria for service connection for esophageal gastric cancer, to include as due to herbicide exposure, for accrued benefits purposes, have been met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for esophageal gastric cancer, to include as due to herbicide exposure, for accrued benefits purposes, is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs