Citation Nr: 1329017 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 09-00 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for stomach cancer, status post gastrectomy, to include as secondary to syphilis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had active service from November 1974 to October 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. By that rating action, the RO, in pertinent part, denied service connection for residuals of stomach cancer status post gastrectomy and for syphilis with penile lesion. The Veteran appealed this rating action to the Board. The Board notes that it appears that the Veteran's original claims folder has been lost or misplaced. A copy of an email in the claims folder, dated in September 2006, indicates that the Veteran's claims folder is a rebuilt file, and that no further records/service medical records could be found. It appears that the RO has determined that the Veteran filed the claim for benefits in June 2005, however there is a suggestion he may have filed a claim earlier. In January 2005, the RO sent a letter to the Veteran advising that they had recently received correspondence from him indicating he wanted to "reopen a claim for benefits". In September 2008 and June 2012, the Veteran testified before a Decision Review Office (DRO) and the undersigned at the above RO, respectively. Copies of the hearing transcripts have been associated with the claims file. In April 2013, the Board sought to obtain an expert medical opinion from the Veterans Health Administration (VHA) to address outstanding medical issues relevant to the issue on appeal. A VHA physician provided this opinion in May 2013. A copy of the May 2013 VHA opinion has been associated with the claims files. At the June 2012 hearing, the Board initially indicated that there were two issues on appeal: entitlement to service connection for residuals of stomach cancer status post gastrectomy, and entitlement to service connection for residuals of syphilis, including a penile lesion. After testimony from the Veteran was taken, a clarification was made that there was actually only one issue on appeal, as set forth on the front page of this decision. FINDINGS OF FACT 1. The Veteran's syphilis was not manifested during the Veteran's active duty service or within a year thereafter, nor is it is otherwise etiologically related thereto. 2. Service connection for syphilis is not in effect; thus, the Veteran's claim for service connection for stomach cancer, status post gastrectomy, a secondary basis must be denied as a matter of law. 3. The Veteran's stomach cancer, status post gastrectomy was not manifested during the Veteran's active duty service or for many years thereafter, nor is it otherwise etiologically related thereto. CONCLUSIONS OF LAW 1. Syphilis was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. Stomach cancer, status-post gastrectomy, was not incurred in or aggravated by the Veteran's active duty service, is not proximately due to, or the result of, a service-connected disability, and its incurrence or aggravation during service may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) 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); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). None is found by the Board. The Veteran was notified via September and October 2006 letters of the criteria for establishing service connection for syphilis and stomach cancer on a direct incurrence basis, the evidence required in this regard, and him and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. These letters predated the initial adjudication by the RO in January 2007. With respect to the secondary aspect of the Veteran's service connection claim, the Board notes that the above-referenced VCAA letters failed to address such theory of entitlement. This being the case, the VCAA notice, as relevant to the secondary aspect of the Veteran's claim, was defective. The Board has considered whether this deficiency in the VCAA notice resulted in prejudicial error to the Veteran. The evidence of record reflects that the undersigned explained what was needed to support the secondary aspect of his claim during the June 2012 hearing. The Veteran expressed his understanding with respect to these requirements. During the June 2012 hearing, the Veteran agreed with the undersigned's statement that his residuals of stomach cancer were "to include as due to the service-incurred syphilis." In essence, and as indicated by the undersigned, that the service-incurred syphilis had caused his stomach cancer. (Transcript (T.) at pages (pgs.) 6, 7)). For the foregoing reasons, the Board finds that VA's failure to provide the Veteran with adequate VCAA notice with respect to the secondary aspect of his claim did not affect the essential fairness of the adjudication of the claim and, therefore, such error is harmless. Accordingly, the Board finds that VA satisfied its duty to notify under the VCAA in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of the claim decided herein. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records, aside from a November 1974 service enlistment examination report, are unavailable. The law provides that where the service treatment records are presumed destroyed, VA has a heightened obligation to explain its findings and conclusions, and to consider the benefit-of- the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); see Dixon v. Derwinski, 3 Vet. App. 261, 263- 264 (1992). In such circumstances, the duty to assist is heightened. Dixon, supra.; see Washington v. Nicholson, 19 Vet. App. 362 (2005) (remanding claim to the Board to address VA's duty to "exercise greater diligence in assisting the appellant with the development of evidence in support of his claim where medical records were lost while in VA custody."). However, the presumed loss or destruction of Government records does not create an "adverse presumption" against the Government. Jandreau v. Nicholson, 492 F.3d 137 (Fed. Cir. 2007); Cromer v. Nicholson, 19 Vet. App. 215, 218 (2005); affirmed 455 F.3d 1346 (2006). A November 2006 RO memorandum reflected the actions taken to locate the missing records, including a search conducted by the National Personnel Records Center (NPRC). In a December 2006 letter, as well as in a September 2008 hearing before a DRO that same month, the Veteran was advised of the fact that his STRs were not available. (See December 2006 letter from the RO to the Veteran and September 2008 T. page (pg.) 5)). In July 2009, the Veteran contacted the NPRC for copies of his service treatment records (STRs), documents from his Official Military Personnel File (OMPF) and DD 214 or equivalent. (See Standard Form 180, Request Pertaining to Military Records, dated and signed by the Veteran in July 2009). In an October 2009 letter to the Veteran, the NPRC indicated that his STRs had been lent to VA. As alternative evidence in support of his clam, the Veteran has provided testimony before a DRO and undersigned in September 2008 and June 2012, respectively, and has submitted statements authored by himself, as well as his ex-spouse. In addition, after the June 2012 hearing, the undersigned held the record open for an additional 30 days to allow the Veteran to obtain and submit medical evidence in support of his claim. The Veteran did not provide any additional evidence. VA also secured private and VA treatment reports in support of the claim. In additional, and as noted in the Introduction, in April 2013, the Board sought to obtain a VHA opinion to address outstanding medical issues relevant to the issue on appeal. A VHA physician provided this opinion in May 2013. A copy of the May 2013 VHA opinion has been associated with the claims files. The Board has carefully considered whether the May 2013 VHA medical expert advisory opinion is adequate. The Board finds that the March 2013 VHA medical expert advisory opinion is probative evidence adequately addressing the medical questions featured in the issue on appeal. The May 2013 VHA medical expert advisory opinion presents a detailed explanation of rationale presenting a persuasive basis for the conclusions, and the presented analysis cites the pertinent facts of record, the Veteran's contentions, the pertinent prior evidence, and applicable medical principles informed by review of medical literature. In light of the above, the Board finds the May 2013 VHA medical expert advisory opinion to be adequate and probative evidence concerning the medical questions of whether the Veteran's syphilis and stomach cancer were caused by his military service or service-connected disability (stomach cancer). Finally, and as noted previously herein, the Veteran was provided an opportunity to set forth his contentions during a June 2012 hearing before the undersigned. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the June 2012 hearing, the undersigned Veterans Law Judge identified the single issue on appeal. Also, information was solicited regarding the nature of his argument and the Veterans Law Judge clarified the evidence necessary to establish entitlement the benefit sought, to include evidence necessary to prevail on his theory of secondary service connection. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussion did not reveal any evidence that might be available that had not been submitted. As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. The Board concludes that all available records and medical evidence has been obtained in order to make an adequate determination as to the claim for service connection for stomach cancer, to include as secondary to syphilis. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of this claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 18 (2002). Therefore, the Board finds that VA has complied with the duty-to-assist requirements. 38 U.S.C.A. § 5103A. II. Laws and Regulations Service Connection-general criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as malignant tumors, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. However, this presumption is rebuttable by probative evidence to the contrary. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). However, the Federal Circuit recently held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a), such as a malignant tumor. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Secondary service connection-criteria Service connection is also provided for a disability, which is proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The Court has held that service connection can be granted under 38 C.F.R. § 3.310, for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to incorporate the holding in Allen with additional requirements that there be medical evidence created prior to the claimed aggravation showing the baseline of the disability prior to aggravation. 38 C.F.R. § 3.310(a)(b). III. Merits Analysis The Veteran seeks service connection for stomach cancer, status-post gastrectomy, to include as secondary to syphilis. The Veteran maintains that he initially contracted syphilis during military service in Korea in June 1977 and that it caused his stomach cancer. The Veteran contends that during service in November 1977, he and his then pregnant spouse received treatment in the form of shots for syphilis at the United States Army hospital in Fort Washington. He maintains that after November 1977, he did not seek any further treatment for his syphilis until he received treatment at a local health facility in 1983. (T. at pgs. 4-8). (Parenthetically, the Board observes that in a September 2006 statement to VA, the Veteran reported that he had received treatment for syphilis at the Fulton County Health Department even though the doctors did not have access to his military records in 1986). The Veteran's ex-spouse also maintains that in 1978, when she was pregnant, she and the Veteran had received shots for the treatment for a "sexually transmitted disease." (See October 2006 statement, prepared by the Veteran's ex-spouse and translated from Korean to English). At the outset, the Board finds that because the initial post-service evidence of any stomach cancer was in 1996 (see VA treatment report, dated in January 2007, reflecting that the Veteran had a past medical history of stomach cancer and was status-post gastrectomy), an award of service connection for a malignant tumor is not warranted on a presumptive basis. 38 C.F.R. § 3.307, 3.309 (2012). Thus, the Veteran's claim hinges, in part, on whether or not service connection is established for syphilis on a direct basis. If and only if syphilis is found to have its onset during military service, can the Veteran prevail on his claim for service connection for his stomach cancer as secondary thereto. Turning to the facts in the instant case, regarding the first Hickson element, evidence of a current disability, the evidence of record indicates that the Veteran underwent a gastrectomy in 1996 for treatment of his stomach cancer. (See January 2007 VA treatment report). Thus, Hickson element (1), evidence of a current claimed residuals of syphilis (i.e., stomach cancer) has been met. Regarding the second Hickson element, evidence of in-service incurrence of syphilis, the Board notes that aside from a November 1974 service enlistment examination report reflecting that all of the Veteran's systems were normal (aside from a birthmark on the left shoulder and two-inch scar on the mid-forehead), the remainder of the STRs are missing and are unavailable for review. In May 2013, the VHA examiner was asked to opine, based on a review of the evidence of record, whether it was at least as likely as not that the Veteran had ever contracted syphilis and if so, whether it was at least as likely as not that the syphilis infection occurred during military service. (See April 2013 VHA opinion request, pg. 3). The VHA examiner noted the Veteran's contentions that his initial manifestation of syphilis during military service was in June 1977 when he developed a penile lesion; that he and his then spouse had received shots for the treatment of syphilis in November 1977 in Fort Washington; and, that he receive three (3) more shots for syphilis at a county health facility in 1986 (the Veteran testified before the undersigned in June 2012 that he had received shots at the county facility in 1983). The VHA examiner related that the first official documentation of syphilis in the record was a Rapid Plasma Reagin (RPR) of 1:2 at a VA facility in Atlanta, Georgia in July 1994. The VHA examiner noted that the Veteran had repeat RPRs of 1:8 and 1:4 at private medical facilities (Fulton County Health Department and Grady Health Systems) in September 2002 and June 2006, respectively, which represented a new episode of syphilis and serofast disease. (Parenthetically, the Board observes that the above-referenced July 1994 VA treatment report and June 2006 report, prepared by Grady Health Systems, are not contained in the claims files. The Board notes that the Veteran's claims file has been rebuilt; thus, increasing the likelihood of missing documents. The Board has no reason to doubt the veracity of the VHA examiner's findings of evidence that was made available to him during his review of the claims file). In light of the above-cited evidence, the VHA examiner stated that "[w]ithout serologic documentation, I can only speculate on when the appellant developed syphilis. His claim of having a "penile lesion" in June 1977 could certainly have been an episode of syphilis, but many other diseases can cause penile lesions." In summary, the examiner explained that while it is possible that he became infected at that time, there was no serologic documentation showing his syphilis first presented during service. The examiner further commented that "[m]ost importantly, syphilis is a common disease, and with appropriate treatment, there are no long term sequelae." In essence, the opinion states it in unlikely the Veteran contracted syphilis in service, or that it would result in any residuals(See May 2013 VHA opinion). A careful analysis of this aspect of the opinion shows that it is not sufficient to establish service connection for syphilis. The Board finds this opinion to be speculative at best and of little evidentiary value in that it expressed that the onset of the Veteran's syphilis during military service as possible, rather than probable. See Perman v. Brown, 5 Vet. App. 237, 241 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The Court has found that an opinion expressed in speculative terms, such as "may" implies "may or may not", and is inherently speculative. Id. Thus, the Board finds that Hickson element number two (2), evidence of service incurrence of syphilis has not been met and service connection cannot be awarded for syphilis. Inasmuch as the Board has determined that the Veteran's syphilis was not incurred during service, a threshold legal requirement for establishing secondary service connection for stomach cancer, status-post gastrectomy, is without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Notwithstanding the foregoing, the March 2013 VHA expert opinion goes on to also address question pertinent to the etiology of the Veteran's stomach cancer and its relationship to syphilis. The VHA examiner opined that "it is extremely unlikely that this was related to his syphilis." The examiner concluded, after a review of medical treatise evidence, that the etiology of gastric cancer was not clear but that it probably involved several environmental and possible infectious causes. The VHA examiner indicated that chronic inflammation of the gastric mucosa was important, and was often associated with atrophy of the stomach lining. He related that aside from one (1) case report in the world literature that suggested the possible development of gastric cancer in a patient who had documented syphilitic involvement of his stomach, all other reviews of gastric cancer never mentioned syphilis as a possible etiology. Thus, the VHA examiner concluded that there was very little, if any chance, that the Veteran gastric cancer was related to his preceding syphilis. Thus, even if the Board would to find the Veteran to have service-incurred syphilis, the preponderance of the evidence of record is against a finding that it had caused or aggravated the Veteran's stomach cancer. The Board acknowledges that service connection may indeed be granted when a chronic disease or disability, such as a malignant tumor, is not present in service, but there is evidence of continuity of symptomatology after service. See 38 C.F.R. § 3.303(b); Walker supra. The Veteran has not testified that he had any continuity of symptoms of syphilis or stomach problems from service or proximately thereafter, and the most probative evidence of record indicates no continuity of symptoms attributable to syphilis or stomach cancer from service or proximately thereafter. In fact, the Veteran has maintained that after he received shots for his syphilis in 1977, he did not seek any additional treatment during military service or until 1986. ( T. at pg. 4 and VA Form 21-4138, Statement in Support of Claim, dated and signed by the Veteran in October 2006). Thus, the evidence in this case does not show continuity of symptomatology associated with a chronic disability for the purposes of application of 38 C.F.R. § 3.303(b). The Board acknowledges the Veteran's and his ex-spouse's belief that his disabilities on appeal are related to his military service. However, there is no evidence of record showing that either the Veteran or his ex-spouse has the specialized medical education, training, and experience necessary to render a competent medical opinion as to the diagnosis and etiology of a disability. The Board finds that questions of identifying the specific etiology of complex internal pathologies such as syphilis and stomach cancer are medical questions requiring specialized knowledge and expertise; such questions are not generally resolvable through information available to lay senses. Consequently, the Veteran's own assertions as to diagnosis and etiology of these disabilities have no probative value. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). See also Robinson v. Shinseki, 312 Fed. App. 336 (Fed. Cir. 2009) (non-precedential) (confirming that, in some cases, lay evidence will be competent and credible evidence of etiology). However, a determination concerning diagnosis of a specific disease or a determination concerning the possibility of a causal relationship between two different disease pathologies or between a chemical exposure and a chronic disability requires specialized training, and may therefore not be established by lay opinions on etiology. As the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for stomach cancer, status post gastrectomy, to include as secondary to syphilis. In this case, the benefit-of-the-doubt rule does not apply and this claim is denied. See 38 U.S.C.A. § 5107. ORDER Service connection for stomach cancer, status post gastrectomy, to include as secondary to syphilis is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs