Citation Nr: 1328706 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 13-01 341 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for adenocarcinoma of the duodenum, to include as due to herbicide exposure and as secondary to service-connected status post brachytherapy for adenocarcinoma of the prostate. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jonathan Tracy, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1966 to February 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran was previously granted service-connection for status post brachytherapy for adenocarcinoma of the prostate with residual urge incontinence with an initial disability rating of 100 percent from February 2010 to October 2010 and 20 percent from November 2010. In January 2011 the Veteran filed a notice of disagreement with the initial disability rating of 20 percent and filed a service connection claim for adenocarcinoma of the duodenum. The RO adjudicated the claim for a higher rating in September 2011 and increased the initial rating to 60 percent, but deferred a decision on service connection for duodenal adenocarcinoma until February 2012. Only the service connection issue is on appeal to the Board. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals the documents are either duplicative of the evidence in the paper claims file or irrelevant to the issues on appeal. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim herein decided has been accomplished. 2. The Veteran's adenocarcinoma of the duodenum is not proximately due to or the result of his service-connected status post brachytherapy for adenocarcinoma of prostate; nor has it been permanently aggravated thereby. 3. Adenocarcinoma of the duodenal was not present until many years after service, is not related to any injury or disease incurred in service, and may not be presumed to be due to herbicide exposure during the Veteran's service in the Republic of Vietnam. CONCLUSION OF LAW Service connection for adenocarcinoma of the duodenal is not warranted. 38 U.S.C.A. §§ 1110, 1116, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 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, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice must inform the claimant of any information and 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. Notice should be provided to the claimant before the initial unfavorable adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirement applies to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the instant case, notice was provided to the Veteran in April 2011, prior to the initial adjudication of the claim in February 2012. The content of the notice letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). With respect to the Dingess requirements, the April 2011 letter included notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. Accordingly, the duty to notify has been fulfilled. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this instance, the claims file contains the Veteran's service treatment records, private treatment records, a private medical opinion, and the Veteran's own assertions in support of his claim. The Board has reviewed the file for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain; therefore appellate review may proceed without prejudicing him. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition, the RO arranged for a VA medical opinion in November 2011 to opine on the etiology of the Veteran's duodenal adenocarcinoma. The Board finds that the opinion obtained in this case was more than adequate, as it provides medical conclusions relevant to determining service connection for duodenal adenocarcinoma. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Accordingly, the Board finds that VA's duty to assist has been met. 38 C.F.R. § 3.159(c)(4). II. Service Connection for Adenocarcinoma of the Duodenum The Veteran is claiming service connection for duodenal adenocarcinoma. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) ; Allen v. Brown, 7 Vet. App. 439 (1995). Thus, service connection on a secondary basis may be granted under one of two conditions. The first is when the disorder is proximately due to or the result of a disorder of service origin. In that case, all symptomatology resulting from the secondary disorder will be considered in rating the disability. The second is when a service-connected disability aggravates a nonservice-connected disability. In those cases, VA may only consider the degree of disability over and above the degree of disability prior to the aggravation. VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). In addition, a veteran who, during active service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to certain herbicide agents. 38 U.S.C.A. § 1116(f). If a veteran was exposed to certain herbicide agents during active service, a presumption of service connection exists if a veteran is diagnosed with certain enumerated diseases associated with such exposure, even if there is no record of such disease during service. 38 U.S.C.A. § 1116(a)(1), (2) ; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Notwithstanding the regulations governing presumptive service connection based on herbicide exposure, a veteran may also establish service connection with proof of actual direct causation. 38 U.S.C.A. § 1110 ; 38 C.F.R. § 3.303 ; Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Medical evidence of a current disability and nexus is not always required to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board acknowledges that lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). 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. 38 C.F.R. § 3.159(a)(2). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See 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. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). 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 claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). III. Background and Analysis A. Secondary Service Connection The Veteran's diagnosis of duodenal adenocarcinoma is shown in the surgical pathology from St. Joseph's Mercy Hospital dated in January 2011. The Veteran had undergone a pancreaticoduodenectomy (Whipple's surgery). The biopsy from that procedure revealed primary invasive intestinal type adenocarcinoma of the duodenum, which is connected to the small intestine. The Veteran claims his duodenal adenocarcinoma was caused by his prostate cancer. The Veteran had previously been diagnosed with prostate cancer and was treated with an interstitial implant of the prostate gland for high dose rate brachytherapy. The Veteran was thereafter granted service connection for the residuals of prostate cancer due to herbicide exposure while serving in the Republic of Vietnam. The VA examiner provided an opinion in November 2011 on the etiology of the Veteran's duodenal adenocarcinoma. The Veteran's entire claims file was reviewed, including the Veteran's service treatment records and private treatment records. The examiner opined that the claimed condition is less likely than not proximately due to or the result of the Veteran's service-connected condition. The rationale provided was that there is "no evidence of recurrence or metastases of prostate cancer, as current PSA [prostate specific antigen] was well within normal limits." The examiner noted that the Veteran's most recent biopsy in February 2011 showed a normal CT scan. The VA examination reported that the Veteran's prostate cancer had not returned. Based on these findings, the RO denied the claim for secondary service connection. The Veteran submitted an opinion from a private medical doctor from Hematology-Oncology Consultants. The letter asserts that the Veteran's duodenal adenocarcinoma is rare and the doctor opines that there is at least a 50 percent chance that it "is related to his prior military service and agent orange exposure." The doctor does not offer any rationale or basis for this opinion. Nor does the doctor assert that the Veteran's duodenal adenocarcinoma was related to his prostate cancer. There is no other competent medical evidence for the Board to review in considering the claim on the basis of secondary service connection. The records from St. Joseph's do not offer an opinion on the etiology of the Veteran's duodenal adenocarcinoma. The Veteran has not offered any other medical evidence supporting his assertion. The Veteran provided a lay statement in support of his claim in April 2013. As discussed above, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. However, the Veteran is not competent to provide a medical diagnosis and medical nexus opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007). He alleges that his duodenal adenocarcinoma resulted from his prostate cancer. He believes that his prostate cancer metastasized and resulted in the duodenal adenocarcinoma. The Board notes that the Veteran is not competent to make this diagnosis. The Veteran refers to unnamed studies. He reports that metastasis of the duodenum is an unusual phenomenon of prostate cancer, but can elicit several gastrointestinal complications, such as bleeding or obstruction. He asserts that he had a "bleed out" in October 2010. He further reports that he found two published cases between 1966 and 2010 of duodenum adenocarcinoma being caused from prostate cancer. However, there is no competent medical evidence offered in support of his assertions. Instead, the competent VA medical opinion specifically concluded that prostate metastasis did not occur and, thus, did not cause or aggravate the Veteran's duodenal adenocarcinoma In weighing the evidence, the Board gives greater probative weight to the competent medical opinion over the Veteran's statement. Therefore, the Board finds that service connection cannot be granted on a secondary basis. B. Service Connection from Herbicide Exposure Service connection for duodenal adenocarcinoma based on herbicide exposure can be established in two different ways: (1) based on a presumptive basis; or (2) based on a direct service connection. The Board will consider each in turn. The Board recognizes that the Veteran's DD-214 reflects that he served in the Republic of Vietnam and herbicide exposure was conceded by the RO. If the Veteran has one of the diseases listed in 38 C.F.R. § 3.309(e) the disease is presumed to be related to the in-service exposure provided it was manifested within the appropriate time frame. Here, duodenal adenocarcinoma in not listed in 38 C.F.R. § 3.309(e). Prostate cancer, which the Veteran also suffers from, is listed. However, as discussed above, the competent medical evidence does not support a conclusion that the Veteran's duodenal adenocarcinoma is the result of metastasis of his prostate cancer. The VA examiner specifically opined that the Veteran's prostate cancer did not proximately cause his duodenal adenocarcinoma. For these reasons, service connection cannot be granted on a presumptive basis. The Board also considered service connection on a direct basis. If the claimed disease is not one of the presumptive diseases listed in 38 C.F.R. § 3.309(e), but exposure to an herbicide is presumed or proven by the evidence, the Veteran may establish service connection for the disease by (1) showing that the disease actually occurred in service; or (2) by submitting medical evidence of a nexus between the disease and his exposure to herbicides during military service. The first possibility is not at issue in this case. The service treatment records are negative for complaints, treatment, or diagnosis of duodenal adenocarcinoma. The Veteran was given a separation examination in February 1968. A clinical evaluation did not note any disease or problem with the Veteran's internal organs, specifically the intestines, nor did the Veteran report any problems. There is no basis to conclude that the disease occurred in service as it was not diagnosed until 2011. Therefore, service connection cannot be granted on this basis. In support of his claim, the Veteran submitted an opinion, as discussed above, from a private medical doctor from Hematology-Oncology Consultants. The opinion asserts that the Veteran's duodenal adenocarcinoma is a rare cancer. The doctor opines that there is at least a 50 percent chance that the Veteran's duodenal adenocarcinoma "is related to his prior military service and agent orange exposure." The doctor does not offer any rationale or basis for this opinion. It is a conclusory statement without any corroborating medical evidence. The Veteran has not offered any other evidence supporting this assertion. The Board notes that certain diseases have been determined by the Secretary of the Department of Veterans Affairs (Secretary) to specifically not be related to herbicide exposure. See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010, 77 Fed. Reg. 47, 924-928 (Aug. 10, 2012). Cancers of the digestive organs and intestines are on that list. Id. In weighing the conclusory medical opinion, the lack of any other supporting evidence of a nexus between herbicide exposure and the Veteran's duodenum adenocarcinoma, and the fact that cancers of the digestive organs and intestines are specifically found to not be related to herbicide exposure, the Board concludes that the Veteran's duodenal adenocarcinoma is not related to his herbicide exposure. ORDER Entitlement to service connection for adenocarcinoma of the duodenum, to include as due to herbicide exposure and as secondary to service-connected status post brachytherapy for adenocarcinoma of the prostate is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs