Citation Nr: 1334909 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 09-33 728 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for pseudomyxoma peritonei/peritonel carcinomatosis. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD L. Zobrist, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1964 to June 1968. This matter comes before the Board of Veteran's Appeals (Board) on appeal from an April 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). That same month, the Veteran filed a notice of disagreement, and a statement of the case was issued in June 2009. A substantive appeal was received in August 2009. The Veteran died in September 2009, and the appellant is his surviving spouse. Of record is an October 2012 RO memorandum showing that the RO found that the Veteran's spouse met the criteria for substitution in the matter of the Veteran's appeal, which was pending at the time of his death. See 38 U.S.C.A. § 5121A. A supplemental statement of the case was issued in December 2012. As the claim remained denied, the matter has been forwarded to the Board for appellate consideration. FINDING OF FACT Pseudomyxoma peritonei/peritonel carcinomatosis was not manifested during the Veteran's service or for many years thereafter, nor was this disorder causally related to his active duty service, to include due to exposure to herbicides. CONCLUSION OF LAW Pseudomyxoma peritonei/peritonel carcinomatosis was not incurred in or aggravated by the Veteran's active duty service, nor may it be presumed to have been incurred in or aggravated by such service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGSAND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Duty to Notify Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection 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 v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran with proper notice by letter dated in June 2007. This notice complied with the specificity requirements of Dingess, identifying the five elements of a service connection claim, and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The Veteran received all essential notice, had a meaningful opportunity to participate in the development of his claim, and was not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the appellant has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. VA has obtained service treatment records (STRs), VA and private medical records, and a May 2013 medical expert opinion. The appellant was provided the opportunity to submit additional argument or evidence; nothing further was provided. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file, and the appellant and representative have not contended otherwise. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter and that no further development of the evidentiary record is necessary. VA has complied with the notice and assistance requirements, and the appellant is not prejudiced by a decision on the claim at this time. Legal Criteria, Factual Background, and Analysis Legal Criteria Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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 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; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). There is a presumption of Agent Orange exposure under 38 U.S.C.A. § 1116 for veterans who set foot in Vietnam during the Vietnam Era. There is no presumption of service connection for pseudomyxoma peritonei/peritonel carcinomatosis or appendiceal carcinoma based on in-service Agent Orange exposure. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307, 3.309. If the criteria for presumptive service connection are not met, a veteran may still establish entitlement to service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Establishment of service connection on a direct basis requires competent medical evidence relating the claimed disability to herbicide exposure, or other in-service injury or disease, during the veteran's period of active military service. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which 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). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, supra. A Veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (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); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Also, a veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the lay person is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition; he is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The Board notes that it has reviewed all of the evidence in the Veteran's claims file and in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to the matters on appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Factual Background As an initial matter, the Veteran's service records indicate that he was temporarily assigned to duty at Cam Ranh Bay Air Base in the Republic of Vietnam in 1966 and 1967; Agent Orange exposure is, therefore, conceded. The Veteran's June 1964 Report of Medical History and Report of Medical Examination, completed upon his enlistment, reflect a provided history of mumps and whooping cough and clinical findings that his abdomen and viscera were normal; no other defects or conditions were noted. His STRs indicate that he was seen several times in service for gastric complaints that resolved prior to discharge. In May 1965, he was seen for gastritis. In January 1967, he was treated for mild epigastric discomfort and excess flatulence. On initial flying examination and medical history report in July 1967, his abdomen and viscera were again clinically evaluated as normal, and the Veteran denied any other medical or surgical history since the prior physical, to include frequent indigestion and stomach, liver, or intestinal trouble. In January 1968, he was seen for hepatic and splenic flexure syndrome manifesting as complaints of periodic episodes of right and left upper quadrant pain, lasting 10 seconds to one minute, relieved by belching or passing flatus. Clinical findings were negative for bloody or tarry stools, nausea, vomiting, or changes in bowel habits. Physical examination revealed rope-like descending colon. He was seen again for the same complaints later that same month, as well as symptoms of dark stool and blood on tissue. The diagnosis at that time was functional gastrointestinal disorder, and he was temporarily (9 days) found medically incapacitated to fly due to gastroenteritis; a February 1968 Medical Recommendation for Flying Duty indicates that his condition had resolved. On separation examination in February 1968, the Veteran's abdomen and viscera were again clinical evaluated as normal. In the narrative portion, the examiner cited the prior diagnosis of gastroenteritis, noting that the condition was treated with good results and without complications or sequelae. On the accompanying Report of Medical History, the Veteran indicated that he experienced frequent indigestion but denied stomach, liver, or intestinal trouble. In December 1981, the Veteran was treated at Anderson Memorial Hospital for a kidney stone, which successfully passed. In August 1985, the Veteran completed a medical questionnaire associated with a life insurance application. On that questionnaire, he denied that in the past 10 years he had, or had been told that he had, "any disease or disorder of the stomach, intestines or bowel, rectum, appendix, liver, or gall bladder." Chiropractic records from August through October 1994 indicate that the Veteran was treated for back pain that began in July 1994 after doing some back bends; he denied constipation or nausea. He was treated again from May through November 2005 for right hip pain, and received adjustments in May 1996 and May 1997; no gastric or abdominal symptoms were noted. The Veteran was treated for a right shoulder injury in February 2000. In April 2001, he was seen for a sore back. In January 2002, he complained of left hip pain; he had no nausea and his bowel movements were okay. In July 2003 he was treated chiropractically for complaints of sinus trouble. In February 2004, he was seen for left leg pain. The Veteran had a normal colonoscopy in June 2006 with evidence of "an incarcerated umbilical hernia" and an impression of prostate enlargement. On follow-up examination that same month, he denied fatigue, weight loss, weight gain, nausea, vomiting, diarrhea, constipation, heartburn, blood in stools, urinary urgency or frequency, or dysuria. His abdomen was clinically evaluated as "nontender to palpation, tone normal without rigidity or guarding, no masses present, abdominal contour scaphoid Right inquire [sic] hernia present." There was "no hepatomegaly present" and his liver was "nontender to palpation." The assessment included hypertrophy (benign) of prostate, inguinal hernia, and umbilical hernia. In January 2007, the Veteran was seen for repair of an umbilical hernia and right inguinal hernia. Imaging revealed a "[l]arge amount of pelvic ascites with cystic masses within the pelvic fluid suggestive of a cystic neoplasm." The Veteran underwent an exploratory laparotomy with resection of omental metastases and umbilicus at Hart County Hospital; the pathology report indicates that an appendectomy was also performed at this time. During the operation, he was found to have "mucoid ascites with free floating and peritoneal attached cysts of mucoid material." There were three omental tumor cakes located in the anterior abdomen and left and right upper quadrants that were removed. Additional tumor cakes located on the spleen, liver, lesser omentum, and pelvis were not removed at that time. According to the accompanying pathology report, "histologic findings [were] suggestive of a diffuse involvement of the abdominal cavity by a mucinous glandular neoplasm which could be consisted with a mucinous adenocarcinoma." The appendiceal wall demonstrated "mild adenomatous changes" with "[n]o definitive areas of perforation or of an invasive carcinoma." Diagnoses at discharge were intraperitoneal mucinous adenocarcinoma (pseudomyxoma peritonei), cancer cachexia, umbilical hernia, and malignant ascites. In February 2007, radiological testing at Wake Forest University Health revealed widespread peritoneal carcinomatosis with compression of the solid organs within the upper abdomen, secondary to appendiceal carcinoma. Evaluation by Dr. D. G. indicated "an abundance of disease in [the Veteran's] pelvis and around his liver." Pathological review of specimens taken during the January 2007 surgery revealed appendiceal adenoma and findings consistent with dissemination peritoneal adenomucinosis. An addendum from Dr. E. A. L. added that same month concluded that "[t]he final pathology is consistent with [the Hart County Hospital findings of pseudomyxoma peritonei and] disseminated peritoneal disease originating in what appeared to be the villous adenoma of the appendix." In March 2007, the Veteran underwent a more extensive operation to treat peritoneal carcinomatosis from appendiceal carcinoma. "There was massive tumor filling the pelvis, lesser omentum, and in both upper quadrants with relative sparing of the small bowel." Pathology was conducted on a variety of tissue, including from the spleen, gallbladder, and liver. Neither the operative summary nor the pathology report refer to or otherwise indicate involvement of the stomach. In June 2007, the Veteran stated that he would obtain records from a prior treating physician that would demonstrated that "stomach spasm has been a problem since I was discharged." In a July 2007 VA primary care note, the Veteran reported a prior medical history of "stomach cancer". In February 2008, the Veteran submitted a statement to VA in which he asserted that the stomach complaints for which he was treated during active service were managed with antacid drugs but never completely went away and had persisted since service. He stated that a Dr. W. diagnosed "stomach spasm" in the 1980s, but that those records were no longer available. He also stated that he had received chiropractic treatment to relieve his stomach symptoms. In his April 2008 notice of disagreement, the Veteran stated that he was diagnosed with pseudomyxoma and that, although that was not one of the cancers presumptively linked to Agent Orange exposure, "it is definitely associated with those type of cancers" because it was "in the -oma family of cancers such as sarcoma, multiple myeloma, and non-Hodgkin's lymphoma." He stated that shortly after seeking treatment for stomach problems while in service, he was selected for participation in a study on the effects of Agent Orange. He believed "that [he] was selected as a participant for the twenty year study on Agent Orange because of [his] stomach problem" and that "the stomach problem evolved into cancer." The Veteran died in September 2009. His death certificate lists his cause of death as malignancy cachexia, due to "metastatic disease: liver" and "gastric carcinoma". VA obtained an expert medical opinion in May 2013. The examiner reviewed the claims file and noted that, although the Veteran referred (in statements to VA and in medical histories given to treatment providers) to a diagnosis of "stomach cancer" and the death certificate noted "gastric cancer," the record did not indicate a gastric source for the Veteran's cancer. The examiner noted that, according to pathology reports, "the inflammatory reaction surround[ing] the appendix was consistent with a perforating and metastasizing appendiceal tumor" and that the final diagnosis from Wake Forest was "widely diffuse mucinous adenocarcinoma." The examiner ultimately concluded that the Veteran's cancer was not at least likely as not related to Agent Orange exposure in service because the specific adenocarcinoma diagnosed "is not a condition that is otherwise recognized by the medical community as being due to Agent Orange (or any other) exposure." The examiner acknowledged that "prostate cancer is an adenocarcinoma that is related to Agent Orange," but noted that "there is nothing to suggest that this case was related to prostate cancer." The examiner further concluded that the Veteran's cancer was not at least likely as not related to the gastritis or other stomach complaints reported more than 20 years prior, during active service, noting that "[r]egardless of the organ of origin of his cancer we would expect the duration of symptoms prior to diagnosis to be months and not years - certainly not greater than 5 years." Analysis The Board finds that, in this case, service connection is not warranted with regard to pseudomyxoma peritonei/peritonel carcinomatosis because the preponderance of the evidence is against finding that any such disability manifested during service, manifested within a year following service, or is otherwise causally linked to service, to include as due to herbicide exposure. Pseudomyxoma peritonei/peritonel carcinomatosis is a disability for which presumptive service connection on the basis of Agent Orange exposure is not permitted. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. Furthermore, although prostate cancer is a presumptive condition, there is no evidence in the record, to include testimony from the Veteran or appellant, to suggest any association between the Veteran's benign enlarged prostate and his cancer. None of the other disorders listed as possible causes of the Veteran's death are presumptive disorders for Vietnam veterans. Thus, service connection on a presumptive basis is precluded as a batter of law. As for entitlement to service connection on a direct basis, the Veteran's STRs do not reflect, nor have the Veteran or appellant contended, that he was treated for a carcinoma (or an appendix-related condition) while in service or within a year following service. Additionally, the competent and credible evidence of record is against a finding that the Veteran's disability was related to service. The Veteran averred that his cancer was either the result of in-service herbicide exposure or developed from his in-service gastric complaints. However, neither he nor the appellant has presented evidence, other than their own lay statements, supporting either theory of causation. The Board finds that the disability on appeal, cancer, is not one for which a layperson is competent to provide etiology or nexus evidence, and neither the Veteran nor appellant have demonstrated that they have the necessary competence or specialized medical training and expertise required to competently determine the etiology of his cancer. Therefore, the Board finds that the Veteran's lay statements with respect to the etiology of his cancer are not competent evidence. See Jandreau, supra. Furthermore, the Board finds that the Veteran's lay statements, made in conjunction with his request for disability compensation, of gastric symptomatology on-going since service are contradicted by the contemporaneous evidence of record and not credible. For example, he denied gastric symptomatology in statements to his chiropractor and cancer treatment providers. Those reports were made contemporaneous to receiving medical treatment and are of more probative value than more recent assertions made while seeking compensation. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding Board decision assigning more probative value to a contemporaneous medical record report of causation than subsequent lay statements asserting different etiology). He also denied gastric complaints, other than indigestion, on separation from service and stomach trouble of any sort on his 1995 application for life insurance. The Board does not view the assertions of a continuity of pertinent symptoms since service to be credible when viewed against the overall record. In contrast, the medical expert opinion is highly probative evidence against a finding of entitlement to service connection. The examiner reviewed the evidence of record and considered whether the Veteran's cancer, however diagnosed, could be connected to his in-service stomach complaints or his herbicide exposure. With respect to the former, the examiner acknowledged the Veteran's statements to VA treatment providers, post-diagnosis, that he suffered from gastric cancer, as well as the death certificate noting "gastric carcinoma," but noted that the record did not indicate a gastric source and stated that, regardless of the precise origin of the Veteran's cancer (appendix or otherwise), diagnosis would have been made within five years, at the maximum, of symptom onset, not over 20 years after service separation and reports of continuous symptomatology. With respect to the latter, the examiner noted that the medical community does not recognize a link between the Veteran's cancer and Agent Orange exposure. Finally, although the Veteran submitted evidence of treatment for a kidney stone in 1981, there is no medical evidence in the record suggesting a link between the kidney stone and either the in-service gastric complaints or the cancer. Consequently, the Board finds that the competent, credible evidence in this case weighs against a finding of any medical nexus between the Veteran's cancer and his active service. As the preponderance of the evidence is against the claim of entitlement to service connection for pseudomyxoma peritonei/peritonel carcinomatosis, to include as secondary to appendiceal carcinoma, the benefit-of-the-doubt rule does not apply and this claim is denied. See 38 U.S.C.A § 5107. ORDER The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs