Citation Nr: 1328905 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 13-19 143 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for metastatic carcinoma of the pancreas/stomach, to include as secondary to Agent Orange exposure. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran had active duty service from March 1964 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Philadelphia, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA). The issue of entitlement to service connection for colon cancer, to include as secondary to herbicide exposure, has been raised by the record as evidenced in the Report of General Information, dated July 2013. This issue, however, 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. The RO initially developed the claim as entitlement to service connection for cancer of the pancreas. The evidence of record, however, as will be discussed below, indicates that the likely primary site of the Veteran's cancer is the pancreas or stomach; a single site has not been identified. In order to afford the Veteran's claim every consideration, the Board has framed the issue as shown on the title page herein. The Board additionally notes that the Veteran's electronic Virtual VA file has been reviewed in conjunction with the adjudication of the claim currently on appeal. 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). FINDING OF FACT The evidence does not show that it is at least as likely as not that the Veteran's metastatic carcinoma of the pancreas/stomach is related to the Veteran's service, including exposure to herbicides. CONCLUSION OF LAW The Veteran's metastatic carcinoma of the pancreas/stomach was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 With respect to the appellant's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 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 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA 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. VA has a duty 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); 38 C.F.R. §§ 3.102, 3.56(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, if any, 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). Proper notice from VA 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; (3) that the claimant is expected to provide. The notice requirements described above apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In August 2011 and October 2011, the AOJ provided the notice required by 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012). Specifically, the AOJ notified the Veteran of information and evidence necessary to substantiate the claim for service connection; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. This letter also provided the Veteran with the notice pursuant to Dingess. All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2012) (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claim, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent post-treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The VA incorporated the Veteran's in-service treatment records into his claims file. In addition, post-service treatment records from the Veteran's private doctors have been incorporated in to the claims file and/or the Virtual VA electronic records system. The Board recognizes that the Veteran was not afforded a VA examination for his claimed condition. However, the Board finds that the Veteran has not been prejudiced as a result of this. In case, no examination is necessary in order to adjudicate the claim because insofar as a theory of direct/presumptive service connection is involved, there is no competent evidence that the Veteran's pancreatic/gastric cancer may be due to military service. Therefore, a medical examination would serve no useful purpose in this case, since the requirement of an in-service disease or injury to establish a service connection claim cannot be met upon additional examination. See McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Charles v. Principi, 16 Vet. App. 370 (2002). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Importantly, the Board notes that the Veteran is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). The Veteran has submitted arguments and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication is not affected. II. Merits of the Claim Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d). Generally, the evidence 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. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). As an alternative to the nexus requirement, service connection for a chronic disability 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). Here, the Board notes that the Veteran has been diagnosed with primary pancreatic/gastric cancer, which is a chronic disease under 38 C.F.R. § 3.309(a) ("Tumors, malignant, or of the brain or spinal cord or peripheral nerves") and is subject to the provisions governing service connection based upon continuity of symptomatology. In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a) (West 2002 and Supp. 2012). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran has claimed entitlement to service connection for pancreatic cancer which he opines is secondary to his exposure to herbicides during his service in Korea. The Veteran's personnel records indicate he was stationed in Korea from March 1968 to February 1969 with the HHC 2nd Battalion (M) 17th Infantry, 7th Infantry Division. The claims file contains competent medical evidence demonstrating the current existence of metastatic cancer, with the primary likely to be the pancreas or stomach. For purposes of establishing service connection for a disability resulting from exposure to an herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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. If a veteran, who served in the Republic of Vietnam 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 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; 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), and type II diabetes. 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 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). With respect to granting service connection for pancreatic/gastric cancer based on in-service exposure to herbicides outside of Vietnam, VA has information regarding Agent Orange use in Korea along the DMZ. Previously, the United States Department of Defense (DoD) confirmed that Agent Orange was used from April 1968 through July 1969 along the DMZ, although there is no indication that the herbicide was sprayed in the DMZ itself. On January 25, 2011, VA amended its regulations to provide presumptive herbicide exposure for any veteran who served between April 1, 1968, and August 31, 1971, in a unit determined by VA and the DoD to have operated in an area in or near the Korean DMZ in which herbicides were applied. See 76 Fed. Reg. 4,245-4,250 (Jan. 25, 2011). If it is determined that a veteran who served in Korea during this time period belonged to one of the units identified by DoD, then it is presumed that he or she was exposed to herbicides containing Agent Orange, and the presumptions outlined in 38 C.F.R. § 3.309(e) will apply. The VA has previously conceded that the Veteran has been exposed to herbicides while stationed in Korea. The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicide and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); see also Notice, 61 Fed. Reg. 41, 442-49 (1996). The Board notes that pancreatic cancer or stomach cancer is not a disease subject to the Agent Orange presumption. 38 C.F.R. § 3.309(e); see also Notice: Health Outcomes Not Associated with Exposure to Certain Herbicide Agents, 75 Fed. Reg. 81332, 81333 (Dec. 27, 2010) (noting that pancreatic cancer and stomach cancer were categorized under certain other health outcomes as having inadequate or insufficient evidence to determine whether an association with herbicide exposure exists). The herbicide presumption, however, does not preclude a veteran from establishing direct service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994) (when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis). Therefore, in order for service connection to be established, it must be shown that it is at least as likely as not that the pancreatic cancer, was incurred in, or caused or aggravated by, the Veteran's service. The Veteran's in-service treatment records are silent for any complaints, treatment, or diagnosis of pancreatic or gastric cancer. In the January 1970 Report of Medical History at separation, the Veteran indicated he was in excellent health and answered negatively to whether he currently had, or had in the past, tumors, growths, cysts, or cancer. The January 1970 Report of Medical Examination also reported no indication of any cancer, namely pancreatic or gastric cancer. According to the post-service treatment records, the first evidence of pancreatic/gastric cancer was in a January 2011 private treatment record from Dr. T.J S. Here, there was no indication from this physician the Veteran's pancreatic/gastric cancer was the result of herbicide exposure. In addition, the Veteran is currently receiving treatment for his disability with private doctor, Dr. A.R.B., whose records within the claims file dated from February 2011 to April 2013 indicate the Veteran first sought treatment "in April of 2010 with symptoms of upper abdominal pain, nausea, and vomiting. Initially, this was felt to be a bout of pancreatitis. However, symptoms did not resolve." In November 2010, the Veteran underwent an exploratory laparotomy, gastrojejunostomy and excisional biopsy of a mesenteric mass. The pathology revealed metastatic adenocarcinoma with evidence of post desmoplastic process. The primary was felt to likely be upper gastrointestinal site, with stomach and pancreas being leading candidates. There is no indication or opinion from this physician that the Veteran's pancreatic/gastric cancer is related to herbicide exposure. For the reasons that follow, the Board finds that service connection is not warranted for pancreatic/gastric cancer. Although the Board accepts that the Veteran had herbicide exposure during service, there is no objective medical evidence that the pancreatic cancer is the result of the exposure or the result of any injury or illness during service. Rather, the Veteran did not exhibit any symptoms until many years since separation. Here, the record indicates that his symptoms started in approximately April 2010; over forty years after separation from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) [noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised]; see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) [affirming the Board where it found that the veteran failed to account for the lengthy time period after service for which there was no clinical documentation of the claimed condition]. As such, the Board also finds that the weight of the evidence demonstrates no continuity of symptomatology of pancreatic/gastric cancer since separation of service. The Board has considered the Veteran's assertions that his pancreatic/gastric cancer is due to his military service. In that regard, the Board acknowledges that the Veteran can attest to factual matters of which he has first-hand knowledge, such as symptomatology. His assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Laypersons, however, are not generally competent to render an opinion as to the cause or etiology of any current disability because they do not have the requisite medical knowledge or training. 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 this case, however, the only evidence of record in support of the Veteran's claim consists of his own lay statements. As previously stated, the Veteran's etiological theory has not been supported by a medical professional. Furthermore, given the complex nature of the Veteran's pancreatic/gastric cancer and the lack of medical evidence associating the disability to his military service, the Board concludes that the Veteran's statements and opinions as to diagnosis and etiology are of minimal probative weight. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Accordingly, his opinions are not probative and are outweighed by the medical evidence of record. Although the Board is sympathetic to the Veteran's claim, based on the lack of objective medical evidence demonstrating an etiological link between the pancreatic/gastric cancer and his military service, to include as a result of herbicide exposure, the Board concludes that the preponderance of the evidence is against granting service connection. As such, the benefit-of-the-doubt rule does not apply and the claim for entitlement to service connection for metastatic carcinoma of the pancreas/stomach, to include as secondary to Agent Orange exposure, must be denied. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); see generally Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). ORDER Entitlement to service connection for metastatic carcinoma of the pancreas/stomach, to include as secondary to Agent Orange exposure, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs