Citation Nr: 1322793 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 08-06 546A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for residuals of esophageal cancer, to include difficulty swallowing and incomplete digestion status post esophagectomy, to include as due to exposure to herbicides. 2. Entitlement to service connection for Barrett's esophagus, to include as due to exposure to herbicides. 3. Entitlement to service connection for irritable bowel syndrome (IBS), to include as secondary to esophageal cancer. 4. Entitlement to service connection for kidney stones, to include as secondary to esophageal cancer. 5. Entitlement to service connection for a respiratory disorder, to include as due to exposure to herbicides. 6. Entitlement to service connection for diverticulitis, to include as secondary to esophageal cancer. 7. Entitlement to service connection for residuals of gall bladder removal, to include as secondary to Barrett's esophagus and esophageal cancer. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO) in Philadelphia, Pennsylvania. The issue of entitlement to service connection for residuals of esophageal cancer, to include difficulty swallowing and incomplete digestion status post esophagectomy, to include as due to exposure to herbicides, is a consolidation of two separate issues of (1) entitlement to service connection for residuals of esophageal cancer and (2) entitlement to service connection for a condition manifested by difficulty swallowing and incomplete digestion. This recharacterization has been made because the evidence of record clearly reflects that the Veteran's difficulty swallowing and incomplete digestion do not constitute a separate diagnosis, but rather are residual symptoms of the Veteran's esophagectomy. Thus, the grant of service connection for residuals of esophageal cancer contemplates the Veteran's difficulty swallowing and incomplete digestion. In May 2010, the Veteran testified at a personal hearing before the undersigned Acting Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims file. In April 2011, the Board remanded this case for additional development, and the case has been returned for further appellate review. The Board notes that some copies of the May 2011 VA examination reports of record are cut off at the right hand side. The reports are not available in the electronic claims file. Because the omitted portions of the examination reports make it difficult to read and fully comprehend these records, the Board finds it necessary to remand the claims which it has not granted to obtain complete examination reports. The Board notes, on the other hand, that some copies of the examination reports as they appear in the record are sufficient to grant a few of the Veteran's claims. The Board finds no prejudice to the Veteran in adjudicating those claims and in directing further development based on any recommendations that can be understood from the incomplete May 2011 examination reports. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claim. Any future adjudication of this appellant's case should take into consideration the existence of this electronic record. The issues of entitlement to service connection for IBS, kidney stones, a respiratory disability, diverticulitis, and residuals of gall bladder removal are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The preponderance of the competent and probative evidence of record demonstrates that the Veteran's esophageal cancer, which is manifested in part by difficulty swallowing and incomplete digestion, was etiologically related to his active service. 2. The preponderance of the competent and probative evidence of record demonstrates that the Veteran's Barrett's esophagus was etiologically related to his active service. CONCLUSIONS OF LAW 1. Esophageal cancer, which is manifested in part by difficulty swallowing and incomplete digestion, was incurred by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 2. Barrett's esophagus was incurred by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, or any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). It appears in this case that all obtainable evidence identified by the Veteran relative to the claims being decided herein has been obtained and associated with the claims folder, and that records on file are sufficient to resolve those matters in the Veteran's favor. Any defect regarding VCAA must be considered harmless given the favorable action taken herein below. II. Service Connection The Veteran has claimed entitlement to service connection for residuals of esophageal cancer, to include difficulty swallowing and incomplete digestion, and Barrett's esophagus. He contends that these disabilities are related to service, citing in particular his in-service exposure to Agent Orange as a possible cause of these disabilities. In general, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a veteran must show: "(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" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for chronic disabilities if such are shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for these chronic disabilities may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b)(2012). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In the case at hand, none of the claims being decided is listed as chronic disability under 38 C.F.R. § 3.309(a). Therefore, the option of establishing service connection through continuity of symptomatology since service is not available in this case. Veterans who served in the Republic of Vietnam are presumed to have been exposed to certain herbicide agents. 38 C.F.R. § 3.307(a)(6)(iii). "Service in Vietnam" means actual service in the country of Vietnam from January 9, 1962 to May 7, 1975, and includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). The Veteran's service personnel records reflect that his service satisfies the regulatory requirements, and he is thus presumed to have been exposed to the specified herbicide agents. Regulations issued pursuant to 38 U.S.C.A. § 1116 stipulate the diseases for which service connection may be presumed due to an association with exposure to herbicide agents. The diseases that are entitled to presumptive service connection based on herbicide exposure are listed in 38 C.F.R. § 3.309(e). A presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Health Outcomes Not Associated With Exposure to Certain Herbicide Agents, 72 Fed. Reg. 32,395 (June 12, 2007). Because, in the case at hand, the claims decided herein are being granted on a basis other than herbicide exposure, the Board need not further discuss the Veteran's herbicide exposure at this time. The Veteran's service treatment records reflect that no abnormalities were found at the time of his January 1968 enlistment examination and his January 1972 release from active duty examination. He denied any history of, or current, pain or pressure in chest; chronic cough; frequent indigestion; stomach, liver, or intestinal trouble; or other pertinent symptomatology on his January 1968 enlistment medical history report. There is no medical history report from his release from active duty. The Veteran's service treatment records do not reflect that he ever complained of, or sought treatment for, heartburn or other pertinent symptomatology in service. The Veteran provided the following testimony at his May 2010 Board hearing: The Barrett's disease or the constant heartburn began when I was in Vietnam. There were times when I went to sick bay for assistance and received basically nothing while I was there. I would have my parents send me items like Maalox and Rolaids through the mail and that was it, that's the only treatment received for that. But it did start while I was in Vietnam." The Veteran also testified that he self-treated with over-the-counter medication from the time of his service in Vietnam until he had his esophagus removed. In a June 2010 personal statement, the Veteran's sister reported that she and her mother sent the Veteran "care packages [that] included basic essentials such as shaving supplies, Maalox, Rolaids and dental health supplies" while the Veteran was in Vietnam. In terms of post-service medical evidence, the earliest evidence of record is from approximately February 1996. A record from that month notes that the Veteran had been using Prilosec since approximately August 1995. A February 2000 private treatment record notes that the Veteran has "a long history of gastroesophageal reflux disease." The Veteran underwent VA examination in May 2011 for the purpose of obtaining etiology opinions for his service connection claims. Following review of the claims file and interview and examination of the Veteran, the VA examiner opined that the heartburn for which the Veteran was treated with over-the-counter remedies in service was at least as likely as not the cause of the Barrett's esophagus and esophageal cancer. The examiner explained this opinion by noting that chronic heartburn is a definite risk factor for the development of those entities, and the Veteran, per his sister, was treating himself for chronic heartburn in service. The May 2011 VA examiner also opined that the resection of the Veteran's esophagus for his esophageal cancer is causal of the claimed digestive disorder manifested by difficulty swallowing and incomplete digestion. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, his of her knowledge and skill in analyzing the data, and his or her medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical 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 folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448- 9 (2000). The Board finds the May 2011 etiology opinion of record to be highly probative to the matter at hand. The examiner in this case reviewed the claims folder, as the examination report makes specific reference to evidence on file. The examiner's opinion is also based upon interview of the Veteran. The examiner explained the rationale behind the resulting etiology opinion with specific reference to the facts of the Veteran's claim and pertinent medical principles. For these reasons, the Board finds the May 2011 VA examination report to be highly probative in establishing a connection between the Veteran's Barrett's esophagus and esophageal cancer with his in-service heartburn. The Board notes that the probative value of this etiology opinion depends, in part, upon the Board finding the Veteran's descriptions of in-service heartburn symptoms, and his and his sister's reports that his family sent him care packages containing Maalox and Rolaids, competent and credible. Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds that the Veteran, although he is a lay person, is competent to report experiencing symptoms of heartburn in service. Furthermore, the Veteran and his sister can attest to factual matters of which they had first-hand knowledge, including her having sent him care packages containing Maalox and Rolaids while he was serving in Vietnam. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board thus finds that the Veteran and his sister have presented competent evidence that the Veteran experienced heartburn symptoms in service and that he treated these symptoms with Maalox and Rolaids at that time. The competency of an individual to testify, however, must be distinguished from the credibility of the testimony. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). In the case at hand, the Board finds that the statements from the Veteran and his sister with respect to the question at hand are credible. The Board further notes that neither the Veteran's service treatment records nor his post-service medical records provide a contradictory account of his history of heartburn. The Board notes, in particular, that there is no medical history report of record from the Veteran's January 1972 release from active duty to provide a contradictory account of the Veteran's assessment of his medical condition proximately following his service in Vietnam. In short, the Board finds that the record contains competent and credible evidence of in-service heartburn to support the May 2011 etiology opinion linking the Veteran's esophageal cancer and Barrett's esophagus to in-service heartburn. Thus, the Board finds that entitlement to service connection for Barrett's esophagus and residuals of esophageal cancer, to include difficulty swallowing and incomplete digestion, is warranted. ORDER Entitlement to service connection for residuals of esophageal cancer, to include difficulty swallowing and incomplete digestion status post esophagectomy, is granted. Entitlement to service connection for Barrett's esophagus is granted. REMAND The Veteran has also claimed entitlement to service connection for IBS, kidney stones, a respiratory disorder, diverticulitis, and residuals of gall bladder removal. The IBS, kidney stone, residuals of gall bladder removal, and diverticulitis issues are claimed as secondary esophageal cancer, which has been service connected above. The residuals of gall bladder removal issue has also been claimed as secondary to Barrett's esophagus, which has also been service connected above. The respiratory disorder issue has been claimed as secondary to verified in-service herbicide exposure. As noted in the Introduction, the copies of the May 2011 VA examination reports of record cut off the text at the right margin. Complete copies of these examination reports do not appear elsewhere in the claims file. Therefore, a remand is necessary in order to obtain a complete copy of the May 2011 VA examination reports. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. With respect to the IBS claim, the Board notes that the May 2011 VA examination report states that the Veteran has withdrawn his IBS claim, and that he signed a form confirming his withdrawal of this claim. The Board has reviewed the complete record, however, and cannot find a written withdrawal. On remand, the RO/AMC should determine whether the Veteran has, in fact, withdrawn the IBS claim. If he has withdrawn this claim, or if he wishes to do so, written confirmation of this withdrawal must be associated with the claims file. If the Veteran does not withdraw this claim, then it is necessary to obtain an etiology opinion with respect to whether the Veteran currently has IBS that is related to his military service. With respect to the respiratory disorder claim, the Board notes that the May 2011 VA examiner could not resolve the issue of whether the Veteran's dyspnea on exertion is caused or aggravated by his esophageal cancer and/or treatment for esophageal cancer without resort to speculation. The examiner noted that the Veteran's physicians, who are aware of his esophagectomy, do not know the etiology of his dyspnea on exertion. Without a definitive diagnostic etiology, the examiner could not determine whether there is a causal relationship between the dyspnea and the residuals of esophageal carcinoma and esophagectomy without resort to speculation. The examiner suggested that any reevaluation "only be done by the ultimate respiratory expert[-] a pulmonologist." The Board notes that the record contains a May 2011 pulmonary function test (PFT) that was performed one week following the above opinion was rendered. It does not appear, however, that an etiology opinion was obtained in connection with that testing. The Board further notes, in particular, that no opinion has been obtained with respect to the Veteran's contention that his dyspnea on exertion was caused or aggravated by his verified exposure to herbicide in service. The Court has offered specific guidance on medical opinions in which examiners have indicated that they are unable to render an opinion. Jones v. Shinseki, 23 Vet. App. 382 (2010). The Court wrote that when a medical examiner concludes that he or she is unable to provide a nexus opinion, this alone does not make the medical opinion inadequate; a medical opinion with such language may be adequate if the examiner sufficiently explains the reasons for this inability to render an opinion. Here, the examiner has adequately explained his inability to opine on the etiology question without resort to speculation, and he noted that future consideration of this issue should be performed by a pulmonologist. Thus, a remand is required in order to schedule an examination and obtain an opinion from a pulmonologist. This examination report should expressly address the Veteran's contention that he has a current respiratory disability that is etiologically related to his in-service Agent Orange exposure. Likewise, the VA examiner suggested that future consideration of the Veteran's diverticulitis and residuals of gall bladder removal claims should be undertaken by a gastroenterologist. The incompleteness of the May 2011 examination report makes it particularly difficult to follow the examiner's rationale for his diverticulitis opinion. It appears, however, that the May 2011 VA examiner may be suggesting that he does not possess the necessary medical expertise to offer the requested opinion, as he suggests that reinvestigation of this claim "only be done by the ultimate expert- a gastroenterologist." On remand, the Veteran should be scheduled for a VA examination with a gastroenterologist in order to obtain an etiology opinion with respect to his diverticulitis. With respect to the residuals of gall bladder removal claim, the Board notes that the VA examiner opined that the Veteran's gall bladder removal was less likely as not caused by or a result of his esophageal cancer and/or treatment therefor. He provided a detailed rationale for this opinion. Following his rationale, however, the examiner suggests that any reinvestigation "only be done by the ultimate expert- a gastroenterologist." It is unclear whether the May 2011 VA examiner's suggestion that the Veteran be examined by a gastroenterologist implies a deficiency in the May 2011 etiology opinion. Because the diverticulitis claim is being remanded for an examination and opinion from a gastroenterologist, the Board finds it appropriate to obtain a gastroenterologist's opinion with respect to the residuals of gall bladder removal claim. Finally, the Board notes that the Veteran has not been sent a notice that addresses how to establish service connection for the disabilities at issue on a secondary basis. On remand, the Veteran should be sent such a letter. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a VCAA compliant notice that that informs him how to establish service connection on a secondary basis. Afford the Veteran the opportunity to submit additional argument and evidence in support of his claim including a second request to authorize the recovery of private treatment records from the physicians that he identified at his hearing. 2. Obtain a copy of all of the May 2011 VA examination reports, and ensure that no text has been cut off from any of these copies. (The right hand margins on the May 2011 VA examination reports of record are cut off so that the complete examination reports cannot be read.) 3. Take appropriate steps, to include contacting the Veteran and his accredited representative, to determine whether the Veteran has withdrawn his IBS claim. If the Veteran's withdrawal of this claim is confirmed, obtain and associate with the claims file a written confirmation of this withdrawal. 4. Following completion of the above, arrange for the Veteran to undergo a VA examination by a pulmonologist to determine the nature and etiology of any current respiratory disability. The claims folders must be thoroughly reviewed by the examiner in connection with the examination, and a complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary should be conducted. All findings should be reported in detail. The examiner should diagnose any pertinent pathology. As to any disability identified on examination, the VA examiner should express an opinion as to whether it is at least as likely as not (50 percent probability or more) that any such disability was incurred or aggravated as a result of the Veteran's military service, to include as secondary to his service-connected esophageal cancer or Barrett's esophagus or as secondary to his in-service herbicide exposure. Any opinion expressed must be accompanied by a complete rationale. 5. Following completion of the first three instructions above, arrange for the Veteran to undergo a VA examination from a gastroenterologist to determine the nature and etiology of any current diverticulitis and residuals of gall bladder removal. The claims folders must be thoroughly reviewed by the examiner in connection with the examination, and a complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary should be conducted. All findings should be reported in detail. (If, and only if, the Veteran has not properly withdrawn his IBS claim, an opinion should be obtained with respect to that issue as well.) The examiner should diagnose any pertinent pathology. As to any disability identified on examination, the VA examiner should express an opinion as to whether it is at least as likely as not (50 percent probability or more) that any such disability was incurred or aggravated as a result of the Veteran's military service, to include as secondary to his service-connected esophageal cancer or Barrett's esophagus. Any opinion expressed must be accompanied by a complete rationale. 6. After the development requested above has been completed, and after any additional development deemed appropriate, again review the record. If any benefit sought on appeal remains denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ J. W. FRANCIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs