Citation Nr: 1324854 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 10-03 797 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for carcinoma of the stomach, including as a result of herbicide exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from September 1965 to September 1969. This case comes to the Board of Veterans' Appeals (Board) on appeal of an October 2008 rating decision of the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA). The case was remanded by the Board in April 2012 so that private treatment records could be obtained and a VA compensation examination performed. These were accomplished and the case returned to the Board for further appellate consideration. The case was again remanded in January and May 2013 so that additional VA medical opinions could be obtained. This was accomplished and the case has been returned for further appellate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam (RVN) from December 1966 to December 1967 and from September 1968 to September 1969. 2. No injury, disease, or chronic symptoms of carcinoma of the stomach were manifested during service. 3. The Veteran did not continuously manifest symptoms of carcinoma of the stomach in the years after service. 4. Carcinoma of the stomach was not manifested to a degree of ten percent or more within one year of service separation. 5. Carcinoma of the stomach is not caused by any in-service event, including defoliant exposure, during service. CONCLUSION OF LAW Carcinoma of the stomach was neither incurred in nor aggravated by service, nor may it be presumed to have been. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 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), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between a veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of the claim. A June 2008 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. This letter also informed the Veteran of disability rating and effective date criteria. The Veteran has had ample opportunity to respond and supplement the record. With regard to the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The Veteran was afforded several VA medical examinations, most recently in June 2013. The Board finds that the opinions obtained are adequate. The opinions were provided by qualified medical professionals and were predicated on a full reading of all available records. The examiners also provided a detailed rationale for the opinions rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran's representative argued that the April 2012 opinion, with March 2013 addendum, was not adequate in that all of the information provided by the Veteran was not discussed. In response, the Board ordered an additional examination that was completed in June 2013. Neither the Veteran nor the representative has challenged the adequacy of this examination. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist, including with respect to obtaining a VA examination or opinion, has been met. 38 C.F.R. § 3.159(c)(4) (2011). 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, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, as listed in 38 C.F.R. § 3.309(a), there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also 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). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as a malignant tumor, to a degree of 10 percent or more within one year from separation from service, such diseases may 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. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The statutory provision specifically covering Agent Orange is 38 U.S.C.A. § 1116. Under 38 U.S.C.A. § 1116(f), a claimant, who, during active service, served in the RVN 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 he was not exposed to any such agent during that service. Disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309, will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 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 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; type 2 diabetes, non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; multiple myeloma, respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma, ischemic heart disease, "all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia)," and Parkinson's disease. 38 C.F.R. § 3.309(e) (2012). Aside from these presumptive provisions, service connection might be established by satisfactory proof of direct service connection. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In accordance with VA regulations, the National Academy of Science (NAS) issued "Veterans and Agent Orange: Update 2008" (Update 2008). The attached notice explains a determination made by the Secretary, based upon Update 2008 and prior NAS reports, that a presumption of service connection based on exposure to herbicides in the RVN is not warranted for the following health outcomes: Hypertension; Cancers of the oral cavity (including lips and tongue), pharynx (including tonsils), or nasal cavity (including ears and sinuses); Cancers of the pleura, mediastinum, and other unspecified sites within the respiratory system and intrathoracic organs; Esophageal cancer; Stomach cancer; Colorectal cancer (including small intestine and anus); Hepatobiliary cancers (liver, gallbladder and bile ducts); Pancreatic cancer; Bone and joint cancer; Melanoma; Non-melanoma skin cancer (basal cell and squamous cell); Breast cancer; Cancers of reproductive organs (cervix, uterus, ovary, testes, and penis; excluding prostate); Urinary bladder cancer; Renal cancer (kidney and renal pelvis); Cancers of brain and nervous system (including eye); Endocrine cancers (thyroid, thymus, and other endocrine organs); Leukemia (other than all chronic B-cell leukemias including chronic lymphocytic leukemia and hairy cell leukemia); Cancers at other and unspecified sites; Neurobehavioral disorders (cognitive and neuropsychiatric); Movement disorders (including amyotrophic lateral sclerosis, but excluding Parkinson's disease); Chronic peripheral nervous system disorders; Respiratory disorders (wheeze or asthma, chronic obstructive pulmonary disorder, and farmer's lung); Gastrointestinal, metabolic, and digestive disorders (changes in liver enzymes, lipid abnormalities, and ulcers); Immune system disorders (immune suppression, allergy, and autoimmunity); Circulatory disorders (other than ischemic heart disease); Endometriosis; Effects on thyroid homeostasis; and Certain reproductive effects, i.e., infertility, spontaneous abortion, neonatal or infant death and stillbirth in offspring of exposed people, low birth weight in offspring of exposed people, birth defects (other than spina bifida) in offspring of exposed people, childhood cancer (including acute myelogenous leukemia) in offspring of exposed people. See Notice, 75 Fed. Reg. 247 81,332-35 (Dec. 27, 2010) In order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1990). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303(a). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board is required to render a finding with respect to the competency and credibility of the lay evidence of record. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). As a fact finder, the Board is obligated to determine whether lay evidence is credible in and of itself. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (Fed. Cir. 2006). Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr 21 Vet. App. at 303 (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). 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, 492 F.3d at 1377. Also, a veteran as a layperson is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the layman is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F.3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition; the person is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Service Connection for Carcinoma of the Stomach The Veteran contends that service connection is warranted for cancer of the stomach. His main contention is that this disability is related to defoliant exposure, including exposure to Agent Orange and other carcinogenic agents utilized in the RVN. The record shows that the Veteran served in the RVN from December 1966 to December 1967 and from September 1968 to September 1969. He is therefore presumed to have been exposed to defoliants during that time. The Board finds that no injury, disease, or chronic symptoms of carcinoma of the stomach were manifested during service. In this regard, review of the Veteran's STRs shows no complaint or manifestation of a gastric disorder or malignant tumor. Examinations for flight status, in October 1966, and for separation from active duty, in September 1969, show clinical evaluation of the abdomen and viscera to be normal. The Board finds that the Veteran did not continuously manifest symptoms of carcinoma of the stomach in the years after service and that carcinoma of the stomach was not manifested to a degree of ten percent or more within one year of service separation. Private treatment records show that the Veteran was treated in January 2007 for gastrointestinal complaints. A January 2008 summary shows that the Veteran was found to have a perforated bowel and underwent a total gastrectomy and splenectomy. Adenocarcinoma of the stomach was found to have invaded the subserosa. The surgical margins were negative, but he had perforation of the stomach and there was lymphovascular invasion. He underwent radiation treatment. This was many years after the Veteran's separation from service and there is no lay or medical evidence of stomach cancer within the first post-service year or in the years immediately following service. The Board finds that carcinoma of the stomach was not caused by any in-service event, including defoliant exposure, during service. This is the Veteran's main contention regarding his claim for service connection. In response to the contention, the Veteran was examined by the VA pursuant to multiple remands by the Board. On examination in April 2012, the examiner stated that the Veteran's gastric cancer was less likely than not incurred in or caused by a claimed in-service injury, event or illness. The rationale was that the Veteran was diagnosed with adenocarcinoma of the stomach in 2007 and that the STRs did not show any stomach symptoms. The Veteran related that he had been treated for a stomach ulcer in 1971 and a H. pylori infection during the 1990s, although the notes of these treatments were not in the medical records. The examiner stated that Agent Orange was not a known cause of gastric cancer, but that H. pylori infection was a risk factor for gastric cancer and it could only be speculated that H. pylori infection was present in 1971 when the Veteran reportedly developed ulcer symptoms. Risk factors for gastric cancer included salt and salt-preserved foods; nitroso compounds, from diet, tobacco smoke or other environmental factors; smoking; Heliobacter pylori; Epstein-Barr virus; and alcohol. In a March 2013 addendum, the VA examiner repeated the opinion rendered in April 2012 and reiterated the probable risk factors for the development of stomach cancer. As defoliant exposure was not among those risk factors, the examiner found that it was less likely than not that stomach cancer was related to service, including defoliant exposure in service. An examination was conducted by VA in June 2013. After examination and review of the Veteran's medical records, the examiner rendered an opinion that the gastric cancer was less likely than not caused by in-service injury, event or illness. The examiner specifically addressed contentions regarding whether toxins other than Agent Orange, specifically 2, 3, 7, 8,-Tetrachlorodibenzo-p-Dioxin (2, 3, 7, 8,-TCDD) could have led to the development of stomach cancer. It was noted that 2, 3, 7, 8,-TCDD was considered to be probably carcinogenic, but that H. pylori was a "definite carcinogen." As such, this was the most likely cause of the Veteran's stomach cancer. As noted, the most recent NAS Agent Orange update excludes stomach cancer as being subject to presumptive service connection based on defoliant exposure. 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 this case, the only medical opinions of record are that it is more likely that the Veteran's gastric cancer developed as a result of H. pylori infections in the 1990s and not as a result of chemical exposure, including exposure to defoliants during service. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for carcinoma of the stomach, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for carcinoma of the stomach, including as a result of defoliant exposure, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs