Citation Nr: 1330275 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 10-11 285 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection a lung/respiratory disability to include chronic obstructive pulmonary disease (COPD) for accrued benefits purposes. 2. Entitlement to service connection for stage IV gastroesophageal ge junction endocarcinoma for accrued benefits purposes. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to May 1969. He died in August 2011. The appellant is the Veteran's surviving widow. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in March 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2011, the appellant requested that she be substituted for the Veteran as his surviving spouse. See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (amending the law to allow substitution in cases involving claimants who die on or after October 10, 2008) (codified at 38 U.S.C.A. § 5121A (West Supp. 2012)). Such request must be filed not later than one year after the date of the veteran's death. Id. As provided in the law, a person eligible for substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C.A. § 5121(a). . . ." Id. The RO has allowed for the appellant's substitution in the Veteran's claims that were on appeal. Therefore, the Veteran's surviving spouse has been substituted for the Veteran. The appellant retains the Veteran's docket number before the Board. The appellant testified at a Board hearing before the undersigned Veterans Law Judge in June 2013. A transcript of the hearing is associated with the claims file. The issue of entitlement to service connection for cause of the Veteran's death has been raised by the record, but 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. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam and the medical evidence of record shows that the Veteran had a current diagnosis of COPD and gastroesophageal ge junction adenocarcinoma; however these disabilities are not a diseases associated with exposure to certain herbicide agents as enumerated under 38 C.F.R. § 3.309(e). 2. The preponderance of the evidence shows that the Veteran's COPD is not etiologically related to active military service to include herbicide exposure. 3. The preponderance of the evidence shows that the Veteran was not diagnosed with gastroesophageal ge junction adenocarcinoma in service or within one year after discharge from military service and the Veteran's gastroesophageal ge junction adenocarcinoma is not otherwise related to military service to include herbicide exposure. CONCLUSIONS OF LAW 1. A lung/respiratory disability was not incurred in or aggravated by active military service, nor may it be presumed to have been so incurred or aggravated. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. Gastroesophageal ge junction adenocarcinoma was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred or aggravated. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance The United States Department of Veterans Affairs (VA) has a duty to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 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, 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to claims for service connection for a disability, the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of the claim: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thus, upon receipt of an application for a service-connection claim, VA must review the information and the evidence presented with the claim and provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. After careful review of the claims folder, the Board finds that the letter dated in October 2008 satisfied the duty to notify provisions prior to the initial AOJ decision in March 2009. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); VBA Fast Letter 10-30 (Revised, April 3, 2013). Specifically, the letter provided notice of what information and evidence was needed to substantiate the Veteran's service connection claim for COPD and gastroesophageal ge junction adenocarcinoma. The letter requested that enough information should be provided for the RO to request records from any sources of information and evidence identified by the claimant, as well as what information and evidence would be obtained by VA, namely, records like medical records, employment records and records from other Federal agencies. The letter also provided information on how VA will determine the disability rating and effective date if the Veteran's claim is granted. The Board notes that this letter was addressed to the Veteran and not the current appellant; however, as the appellant has been substituted for the Veteran, issuance of another VCAA notice letter is not required. See VBA Fast Letter 10-30 (Revised, April 3, 2013) (If an adequate VCAA notice letter was previously sent to the original claimant, a new VCAA notice letter will not be provided to the individual requesting substitution). Regarding VA's duty to assist, VA has fulfilled its duty to assist the appellant in making reasonable efforts to identify and obtain relevant records in support of the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, private treatment records, VA treatment records, a VA examination report dated in March 2009, an article written by a Vietnam Veteran and a transcript of the June 2013 Board hearing. The March 2009 VA examination report reflects that the examiner conducted a review of the Veteran's claims file in addition to obtaining an oral history from the Veteran and evaluating the Veteran. The examiner discussed the relevant evidence of record. Following the above, the examiner provided a diagnosis and a nexus opinion, which appears to be based on the evidence of record and medical knowledge. Accordingly, the Board finds the March 2009 VA examination is adequate for adjudication purposes. The Board observes that a VA examination or opinion was not obtained regarding the Veteran's service connection claim for gastroesophageal ge junction adenocarcinoma. VA has a duty to provide a VA examination when the record lacks evidence to decide a claimant's claim and there is competent evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. 38 U.S.C.A. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, there is no competent evidence that indicates a relationship between the Veteran's gastroesophageal ge junction adenocarcinoma and active military service to include exposure to herbicides. The Board notes that the record contains lay assertions that the Veteran's gastroesophageal ge junction adenocarcinoma is related to herbicide exposure during service. However, this type of opinion requires medical knowledge and a lay person is not competent to provide an etiology opinion between gastroesophageal ge junction adenocarcinoma and an incident in service. Accordingly, VA is not required to obtain a VA examination or opinion in conjunction with this service connection claim. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matters currently under consideration. Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claims on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Merits of the Claims for Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a), such as in this case malignant tumors. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may be presumed for certain chronic diseases, such as in this case malignant tumors, that are manifested to a compensable degree within one year after separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). COPD The appellant contends that the Veteran's COPD is related to his active duty service to include as due to exposure to herbicides. As noted above, in order for the Veteran to be entitled to service connection for a lung or respiratory disability, the medical evidence must show a diagnosis of the claimed disability. A March 2009 VA examination shows that the Veteran was diagnosed with COPD. Thus, the Veteran had a current diagnosis of the claimed disability. In regards to the claim that the Veteran had COPD as a result of exposure to Agent Orange, the following must be shown in order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975; (2) that he currently suffers from a disease associated with exposure to certain herbicide agents enumerated under § 3.309(e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specific time period prescribed in § 3.307(a)(6)(ii). 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2012). The following diseases are associated with herbicide exposure for purposes of the presumption: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as type II diabetes mellitus or adult-onset diabetes), 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), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The Veteran contends that he was exposed to Agent Orange while he was stationed in Vietnam. The Veteran's DD Form 214 reveals that the Veteran had service in Vietnam between July 1966 and May 1969. Thus, the evidence shows that the Veteran had service in the Republic of Vietnam during the applicable presumptive period and therefore exposure to an herbicide agent is conceded. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). Nonetheless, COPD is not among the statutorily enumerated diseases set forth above for which presumptive service connection is available for veterans exposed to herbicide agents during active service. Accordingly, the Veteran's COPD is not entitled to the presumption of service connection due to exposure to Agent Orange. Notwithstanding the above, the United States Court of Appeals for the Federal Circuit has held that 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. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). The Board must not only determine whether the Veteran has a disability which is recognized by VA as being etiologically related to exposure to herbicides, but must also determine whether his disability is otherwise the result of active service. Thus, the fact that the requirements of a presumptive regulation are not met does not preclude the appellant from establishing, in the alternative, service connection by way of proof of actual direct causation. The Veteran's service treatment records reveal that the Veteran was not treated for or diagnosed with a respiratory or lung disorder to include COPD during service. He reported having had or having at that time pain or pressure in his chest, but he denied having other lung or respiratory problems to include chronic cough, shortness of breath or asthma in the May 1969 Report of Medical History as part of his separation from active duty. The May 1969 separation examination reveals that the Veteran's lungs and chest were evaluated as normal. The appellant does not contend and the evidence of record does not otherwise show that the Veteran had symptoms of COPD in service with a continuity of symptoms since discharge from service. The first evidence of complaints of a lung/respiratory disability after discharge from military service was in 2006. The Veteran reported in a June 2006 private treatment record that the he had a problem with shortness of breath for at least the past year. The Veteran informed the VA examiner in March 2009 that he did not remember having pulmonary problems in service and that he first noted dyspnea in the past few years. The first medical evidence of a diagnosis of COPD was in 2006, approximately 37 years after military service. With respect to whether the Veteran's COPD is related to active military service, the record contains a negative VA medical opinion. A March 2009 VA examination report reveals that the Veteran noted dyspnea in the past few years and it has continued to become worse. The Veteran reported that he remembered no history of any pulmonary problems during military service. After a review of the medical records, taking a history from the Veteran and performing an examination, the examiner determined that the Veteran's lung condition is not caused by or a result of military service. She explained that there was no evidence of any pulmonary diagnosis at the time of the Veteran's separation examination. She also noted that the Veteran's private physician in August 1966 reported that the Veteran had a history of respiratory infections (pleurisy) in 1958 and 1962 prior to military service. She also determined in the diagnosis section that the Veteran had severe COPD secondary to his smoking history. The Board concludes this VA opinion is persuasive and probative as the examiner provided a clear explanation based on the medical evidence of record and general medical knowledge. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The Board also finds it persuasive that the claims file does not contain any other medical opinion that would indicate the Veteran's current lung or respiratory disorders are related to military service. The Board acknowledges that the Veteran and the appellant had provided lay opinions that the Veteran's COPD is related his active military service. While the Veteran and the appellant are competent to report observable symptoms such as dyspnea, the diagnosis of COPD, and the etiology thereof, requires medical expertise. This disorder is simply not the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Moreover, the lay contentions of a causal relationship between a current respiratory disability and active service are outweighed by the more probative VA opinion that was provided in March 2009. In conclusion, the evidence of record shows the probative medical opinion provides evidence against the claim that the Veteran's COPD is related to active military service. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's service connection claim for COPD and therefore, service connection for a lung/respiratory disability is not warranted. Gastroesophageal ge Junction Adenocarcinoma The appellant contends that the Veteran's gastroesophageal ge junction adenocarcinoma was related to active military service. Specifically, she asserts that it was caused by his exposure to herbicides while serving in Vietnam. In assessing the appellant's service connection claim for gastroesophageal ge junction adenocarcinoma, the Board must determine whether the Veteran had a current disability. Private treatment records show that the Veteran was diagnosed with gastroesophageal ge junction adenocarcinoma in July 2008. Thus, the Board finds that the Veteran had a current diagnosis of the claimed disability. In regards to the Veteran's claim of gastroesophageal ge junction adenocarcinoma as a result of exposure to Agent Orange, as discussed above, the evidence shows that the Veteran had service in the Republic of Vietnam during the applicable presumptive period and therefore exposure to an herbicide agent is conceded. See 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). Nonetheless, gastroesophageal ge junction adenocarcinoma is not among the statutorily enumerated diseases set forth above for which presumptive service connection is available for veterans exposed to herbicide agents during active service. The Board notes that the Veteran argued in his September 2009 notice of disagreement that the gastroesophageal ge junction is a soft tissue and therefore, his cancer should be presumed to be related to herbicide exposure. Soft-tissue sarcoma is a disease listed under section 3.309(e) that is considered associated with herbicide exposure for presumption purposes. The Veteran was diagnosed with gastroesophageal ge junction adenocarcinoma. Adenocarcinoma is a "carcinoma derived from glandular tissue or in which the tumor cells form recognizable glandular structures." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 28 (31st ed. 2007). Soft-tissue sarcoma is "a general term for a malignant tumor derived from extra-skeletal connective tissue... with almost all lesions originating from primitive mesoderm." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1694 (31st ed. 2007). Therefore, gastroesophageal ge junction adenocarcinoma is a different type of cancer than soft-tissue sarcoma. It is not listed as a presumptive disease associated with herbicide exposure. Accordingly, the Veteran's gastroesophageal ge junction adenocarcinoma is not entitled to the presumption of service connection due to exposure to Agent Orange. Notwithstanding the above, the United States Court of Appeals for the Federal Circuit has held that 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. See Combee, 34 F.3d at 1043-44. The Board must not only determine whether the Veteran has a disability which is recognized by VA as being etiologically related to exposure to herbicides, but must also determine whether his disability is otherwise the result of active service. Thus, the fact that the Veteran may not meet the requirements of a presumptive regulation does not preclude the appellant from establishing, in the alternative, service connection by way of proof of actual direct causation. The Veteran's service treatment records do not show treatment for or a diagnosis of gastroesophageal ge junction adenocarcinoma during active military service. The first medical evidence that shows the Veteran had gastroesophageal ge junction adenocarcinoma was in 2008, approximately 39 years after discharge from military service. As there is no evidence of gastroesophageal ge junction adenocarcinoma shown in service or within one year of discharge from service, the threshold question is whether there is sufficient medical evidence to establish an etiological link between the Veteran's gastroesophageal ge junction adenocarcinoma and his active service. In this regard, there is no competent medical opinion of record that indicates that the Veteran's gastroesophageal ge junction adenocarcinoma is etiologically related to active military service to include exposure to herbicides. The Board notes that the Veteran and the appellant contend that the Veteran's gastroesophageal ge junction adenocarcinoma is related to herbicide exposure. Lay persons can provide an account of observable symptoms. See Jandreau, 492 F.2d at 1377. However, lay assertions regarding certain medical matters, such as an opinion whether gastroesophageal ge junction adenocarcinoma is related to herbicide exposure in service, fall outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran and the appellant are not a licensed health care professional; therefore, the lay evidence offered by them are not competent medical evidence and does not prove a relationship between the Veteran's gastroesophageal ge junction adenocarcinoma and exposure to herbicides during military service. In addition, the record contains part of an article written by a Vietnam Veteran, which argues that esophageal cancer among other forms of digestive system cancers are higher in those veterans who served in Vietnam. A review of the article indicates that the author is not a medical professional. As noted above, a lay person is not competent to provide a medical opinion on whether esophageal or stomach cancer is related herbicide exposure as this is requires special medical knowledge. Furthermore, the article does not cite to any medical treatise or studies that indicate a relationship between herbicide exposure and gastroesophageal ge junction adenocarcinoma. Accordingly, the Board finds that this article is not competent or probative with respect to the issue of whether the Veteran's gastroesophageal ge junction adenocarcinoma is related to herbicide exposure during active military service. Based on the foregoing, the Board finds that the preponderance of the evidence shows that the Veteran's gastroesophageal ge junction adenocarcinoma is not related to active military service. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, entitlement to service connection for gastroesophageal ge junction adenocarcinoma is not warranted. ORDER 1. Entitlement to service connection a lung/respiratory disability to include chronic COPD for accrued benefits purposes is denied. 2. Entitlement to service connection for gastroesophageal ge junction endocarcinoma for accrued benefit purposes is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs