Citation Nr: 1326161 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 10-06 066 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for carcinoid of the small bowel. 2. Entitlement to service connection for liver cancer. 3. Entitlement to service connection for lung cancer. REPRESENTATION Veteran represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1970 to June 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that the Veteran was scheduled to testify at hearings in August 2010 and June 2012. In both instances, the Veteran withdrew his request for a hearing before the scheduled date. His requests for a hearing are therefore deemed withdrawn. 38 C.F.R. § 20.704(e). In November 2012 the Board remanded the case for additional development. It now returns for further appellate review. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they do not contain any additional evidence relevant to the issue on appeal. FINDINGS OF FACT 1. The probative evidence does not show that the Veteran was exposed to herbicides in service, including Agent Orange. 2. The Veteran's carcinoid of the small bowel manifested many years after his discharge from service and is not otherwise shown to be etiologically related to service. 3. The Veteran's liver cancer manifested many years after his discharge from service and is not otherwise shown to be etiologically related to service. 4. The scarring and atelectasis of the lungs, and lung nodules noted to be probable metastatic disease from his small bowel cancer, manifested many years after his discharge from service and is not otherwise shown to be etiologically related to service. CONCLUSIONS OF LAW 1. The requirements for establishing service connection for carcinoid of the small bowel have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The requirements for establishing service connection for liver cancer have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. The requirements for establishing service connection for lung cancer, to include scarring, atelectasis and lung nodules, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 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)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this case, letters dated in September 2006 and February 2007, sent prior to the decision on appeal, and letters dated in March 2009 and April 2009, provided notice regarding what information and evidence is needed to substantiate his service connection claims, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letters also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The case was last readjudicated in April 2013. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment (STRs) and personnel records, VA treatment records, VA examination reports, private treatment records, Social Security Administration (SSA) records, a response from the U. S. Army and Joint Services Records Research Center (JSRRC), a memorandum from the VA JSRRC coordinator, a response from VA Compensation Service, documents and photographs submitted by the Veteran, and lay statements. The Board also notes that actions requested in the prior remands have been undertaken. Indeed, a November 2012 letter was issued to the Veteran requesting information concerning medical treatment, a VA examination was conducted and opinions obtained, and pertinent development in an attempt to verify the Veteran's claimed Agent Orange exposure was conducted. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was provided with a meaningful opportunity to participate in the claims process and has done so by providing evidence and argument. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and cancer becomes manifest to a degree of 10 percent within one year from 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 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Additionally, service connection for certain diseases, including lung cancer, may be granted based on presumed exposure to certain herbicide agents, even though there is no record of such disease during service. Presumed exposure to an herbicide exists for a veteran who had active military, naval, or air service during certain periods of time in the Republic of Vietnam or in certain units operating in or near the Korean demilitarized zone as determined by the Department of Defense (DOD). 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. 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. 81332 (Dec. 27, 2010). 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 causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. When there is an approximate balance of evidence for and against the issue, all reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). A. Herbicide Exposure For all three of his service connection claims, the Veteran asserts that his current disability may be secondary to herbicide exposure. Initially, the Board finds that the Veteran is not entitled to a presumption of exposure to Agent Orange or herbicides, as he did not serve in any of the locations specified in 38 C.F.R. § 3.307(a)(6). The Veteran contends that he was exposed to herbicides while stationed at Diego Garcia, when he unloaded Agent Orange containers from merchant ships in May 1973. In its March 2013 memorandum, the Appeals Management Center (AMC) confirmed that the Veteran served as a member of "A" Company, Naval Mobile Construction Battalion Seventy-Four, and that he was stationed at Diego Garcia. An inquiry was made to VA Compensation Service to review the Department of Defense (DOD) inventory of herbicide operations. Compensation Service responded in January 2010 that the DOD inventory does not show any use, testing, or storage of tactical herbicides, including Agent Orange, at any location on Diego Garcia during the Vietnam Era. Further, Compensation Service reported that the use of tactical herbicides was terminated in 1971, two years before the Veteran's claimed exposure in 1973. As required, a request was made to JSRRC to attempt to verify his claimed exposure. JSRRC stated that it reviewed the March 1973 to November 1973 Deployment Completion Reports submitted by the US Naval Mobile Construction Battalion Seventy-Four. While the history reveals that resupply ships visited and departed Diego Garcia, there is no mention of the cargo containing Agent Orange or other tactical herbicides. The Board finds the reports by DOD and JSRRC indicating that tactical herbicides, including Agent Orange, were not used, tested, or stored at any location on Diego Garcia during the Vietnam Era to be more probative and persuasive than the Veteran's unsupported assertion that he unloaded containers of Agent Orange from merchant ships. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous records and the significant time delay between the affiants' observations and the date on which the statements were written are factors that the Board can consider and weigh against a veteran's lay evidence). Thus, the Board concludes that the most probative evidence is against a finding that the Veteran was exposed to herbicides, including Agent Orange, in service. Accordingly, the Veteran is not entitled to the presumption of service connection based on exposure to herbicide agents for any of his claims. 38 C.F.R. § 3.309(e). This theory of entitlement will not be discussed further. B. Small bowel and liver cancer The Veteran contends that his carcinoid of the small bowel with metastasis to the liver is the result of exposure in service to asbestos, herbicides, desalinized drinking water, and/or harmful fumes and chemicals. The Board notes that in a September 2007 rating action, the RO conceded probable exposure to asbestos in service, based on the Veteran's military occupational specialty of constructionman. This is consistent with his report of working in a building clearing rubble for several weeks that was full of asbestos. The Veteran reported in lay statements that while he was stationed on Diego Garcia, there was no fresh drinking water, and he could only drink desalinized water that tasted like rust and flowed through what he believed to be lead pipes. He stated that during service he was also exposed to exhaust fumes from jet engines when standing on a runway for four to five hours daily. He reports he also came into contact with solvent used to smother flames on aircraft during training. The Veteran's service personnel records reflect that the Veteran had a firefighting class during recruit training, and he served on Diego Garcia for approximately two months. The Veteran does not contend and the evidence does not suggest that his claimed disability arose during service. STRs are negative for any complaints, treatment, or diagnoses referable to cancer of the small bowel or liver. The earliest medical evidence of record of these disabilities are August 2004 private treatment records showing diagnosis of a carcinoid tumor of the small intestine that originated in the ileum and was metastatic to the liver and mesentery with mild carcinoid syndrome. There is no medical evidence showing a primary diagnosis of liver cancer. The October 2007 VA examiner diagnosed carcinoid of the small bowel with resection and metastases to the liver and mesentery. He opined that there is no relationship between the Veteran's diagnosed cancer and asbestos exposure in the military. He reasoned that medical literature shows multiple links between asbestos and cancers of the small intestine, but only small bowel peritoneal mesotheliomas and not carcinoid tumors like the Veteran's. The 2007 VA examiner reviewed the claims file, including lay statements, examined the Veteran, and provided an adequate rationale for his opinion. The Board therefore finds this medical opinion is adequate and highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The March 2013 VA examiner reviewed the record and opined that it is not likely that the Veteran's carcinoid tumor of the small bowel with metastasis to the liver is related to his military service, to include the claimed exposures to the desalinized water, exhaust fumes, solvents, or Agent Orange. Her rationale cited to medical literature, explaining that "none of the above are causative etiologies for carcinoid." Moreover, the medical literature stated that no other known carcinogens or environmental agent exposures have been implicated in the carcinogenesis of carcinoid tumors. The VA examiner reviewed the claims file, including lay statements, and provided an adequate rationale for her opinion. The Board therefore finds this medical opinion is adequate and highly probative. Id. The Veteran and his spouse contend that his carcinoid of the small bowel with metastasis to the liver is related to exposures to asbestos, solvents, exhaust fumes, and desalinized water during military service. However, there is no indication that they have specialized training in diagnosing cancer or determining the etiology of such as such matters requires medical testing and expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, the Veteran and his wife's own opinions regarding the etiology of his small bowel and liver cancer is not competent medical evidence. The Board accords significantly more weight to the opinions of the VA examiners, who concluded the Veteran's carcinoid of the small bowel with metastasis to the liver is not related to service, to include all of these exposures. There is no competent medical opinion to the contrary. Accordingly, the Board finds the preponderance of the evidence is against the claims and service connection for carcinoid of the small bowel with metastasis to the liver is denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims. As such, that doctrine is not applicable in the instant appeal, and his claims must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. C. Lung cancer The Veteran contends that he suffers from lung cancer due to exposure in service to asbestos, herbicides, desalinized water, and/or harmful fumes and chemicals. The Veteran does not contend and the evidence does not suggest that a lung disability arose during service. STRs are negative for any lung complaints, treatment, or diagnoses. The earliest medical evidence of record of lung abnormalities is an August 2004 full CT chest scan that showed two small nodules and some mild atelectasis in the left lower lobe. These nodules were "indeterminate in nature" with no additional nodules seen within either lung. A September 2004 CT with IV contrast showed multiple bilateral pulmonary nodules "suspicious for metastic disease." A May 2005 VA treatment record noted "lung metastases possible" but "this disease can be very slow growing" so continued observation was recommended. Subsequent VA treatment records consistently referred to "indeterminate pulmonary nodules" but no other treatment or diagnosis was noted. A March 2007 CT scan showed scarring/atelectasis at the lung bases. A July 2007 oncology clinic report described the Veteran's current stage as "metastatic to the liver and mesentery" but is silent as to the lungs, except to note that the indeterminate pulmonary nodules were still stable. The 2013 VA examiner, in a thorough review of the record, noted the March 2007 chest CT scan showed new scarring and atelectasis of the lung bases, but that subsequent CT scans or MRI scans actually reflect pulmonary nodules noted to be "indeterminate." The VA examiner stated these nodules more likely than not represent a metastic disease from the carcinoid tumor of the intestines, and they have remained stable. An MRI conducted in March 2013 showed mild subsegmental atelectasis in both lung bases. The 2013 VA examiner opined that it is not likely that scarring/atelectasis are related to the Veteran's military service, including claimed exposure to asbestos, desalinized water, exhaust fumes, solvents, or Agent Orange. Her rationale was that scarring and atelectasis are not known to be caused by these exposures. In addition, the imaging evidence of record have never shown any evidence of continued scarring/atelectasis, nor of pleural plaques, pulmonary fibrosis, or tumors suggestive of mesothelioma. The VA examiner reviewed the claims file, including lay statements, and provided an adequate rationale for her opinion. The Board therefore finds this medical opinion is adequate and highly probative. See Nieves-Rodriguez, supra. There is no competent medical opinion to the contrary. The Veteran and his spouse contend that he suffers from lung cancer due to exposures to asbestos, solvents, exhaust fumes, and desalinized water during military service. However, as noted above, their lay opinions as to medical matters concerning the diagnosis and etiology of lung cancer, nodules, scarring and atelectasis is not competent medical evidence, as the record fails to show they have any medical training. See Jandrea, supra. As such, the Board accords significantly more weight to the opinion of the 2013 VA examiner, who concluded the Veteran's lung scarring/atelectasis and pulmonary nodules that likely represent metastatic disease, are not related to service, to include all of the claimed exposures. There is no competent medical opinion of record linking his current lung condition to service. Accordingly, the Board finds the preponderance of the evidence is against his claim for service connection for lung cancer, to include lung scarring, atelectasis and lung nodules, and the appeal is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert. ORDER Service connection for carcinoid of the small bowel is denied. Service connection for liver cancer is denied. Service connection for lung cancer, to include lung scarring, atelectasis and lung nodules, is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs