Citation Nr: 1454167 Decision Date: 12/09/14 Archive Date: 12/16/14 DOCKET NO. 12-23 524 ) DATE ) ) On appeal from the Department of Veterans Affairs Hartford Regional Office in Newington, Connecticut THE ISSUES 1. Entitlement to service connection for stomach cancer, claimed as due to exposure to Agent Orange. 2. Entitlement to service connection for psychiatric disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and J. M. ATTORNEY FOR THE BOARD G. Fraser, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1970 to May 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Jurisdiction over the case was subsequently transferred to the Hartford RO in Newington, Connecticut. In March 2014, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge, and a transcript of the hearing is of record. The record was held open for 60 days to allow the Veteran to submit additional evidence. No additional evidence from the Veteran has been received by the Board. The record before the Board consists of electronic files known as Virtual VA and the Veterans Benefits Management System (VBMS). The issue of entitlement to service connection for psychiatric disability is addressed in the REMAND that follows the ORDER section of this decision. FINDING OF FACT Stomach cancer was not present in service or until years thereafter and is not etiologically related to service, to include Agent Orange exposure in service. CONCLUSION OF LAW Stomach cancer was not incurred in or aggravated by active military service and in-service incurrence or aggravation of stomach cancer may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2014), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided all required notice in letters mailed in April and August 2011, prior to the initial adjudication of the claim. The record also reflects that all pertinent available service treatment records (STRs) and all available post-service medical evidence identified by the Veteran have been obtained. Additionally, in March 2014, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge. Neither the Veteran nor his representative has identified any outstanding, existing evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. The Board acknowledges that the Veteran was not afforded a VA examination in response to the claim and that no VA medical opinion was obtained in response to the claim. As discussed below, there is no competent evidence of record indicating the Veteran's gastric adenocarcinoma may be etiologically related to service, to include Agent Orange exposure in service. In addition, there is no evidence suggesting that the disability was present within one year of the Veteran's discharge from service or that it is related to anything in service other than the alleged herbicide exposure. Therefore, the Board finds that the medical evidence currently of record is sufficient to decide the claim, and no VA medical examination or opinion is warranted. Accordingly, the Board will address the merits of the Veteran's claim. Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Where a Veteran served for at least 90 days during a period of war and manifests a malignant tumor to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Whenever the Secretary determines, on the basis of sound medical and scientific evidence, that a positive association exists between (A) the exposure of humans to an herbicide agent, and (B) the occurrence of a disease in humans, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for that disease for the purposes of this section. 38 U.S.C.A. § 1116(b)(1). In making determinations for the purpose of this subsection, the Secretary shall take into account (A) reports received by the Secretary from the National Academy of Sciences under section 3 of the Agent Orange Act of 1991 [note to this section], and (B) all other sound medical and scientific information and analyses available to the Secretary. In evaluating any study for the purpose of making such determinations, the Secretary shall take into consideration whether the results are statistically significant, are capable of replication, and withstand peer review. 38 U.S.C.A. § 1116(b)(2). An association between the occurrence of a disease in humans and exposure to an herbicide agent shall be considered to be positive for the purposes of this section if the credible evidence for the association is equal to or outweighs the credible evidence against this association. 38 U.S.C.A. § 1116(b)(3). Gastric adenocarcinoma is not among the diseases specified in 38 U.S.C.A. § 1116(a). As such, the Secretary has not determined, on the basis of sound medical and scientific evidence, that a positive association exists between the exposure of humans to an herbicide agent and the occurrence of gastric adenocarcinoma in humans. Furthermore, the Secretary has published a list of specific conditions for which a presumption of service connection based on exposure to herbicides used in Vietnam during the Vietnam era is not warranted. These include gastrointestinal tumors of the stomach, colon, and rectum. See Notice, 59 Fed. Reg. 341 - 346 (1994); see also Notice, 61 Fed. Reg. 41,442 - 449, and 61 Fed. Reg. 57,586 - 589 (1996); Notice, 64 Fed. Reg. 59,232 - 243 (Nov. 2, 1999); Notice, 67 Fed. Reg. 42,600 - 08 (June 24, 2002); Notice, 72 Fed. Reg. 32,395 - 407 (June 12, 2007). The U.S. Court of Appeals for the Federal Circuit has also held that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis In this case, initially, the Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this 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) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran's service records reflect that he served in the Republic of Vietnam during the Vietnam Era. His service treatment records (STRs) are negative for complaints or findings related to a stomach condition. Moreover, the Veteran does not contend that he initially manifested symptoms of stomach cancer while in service. Following service, treatment records from the West Haven VA Medical Center(VAMC), as well as from Central Connecticut-New Britain Hospital show the Veteran underwent a gastric cancer resection in September 2009. The Board notes that this initial diagnosis was more than thirty five years following his separation from active duty service. To date, the Veteran has not provided any competent evidence of a nexus between his active service, to include presumed exposure to herbicides in service, and his development of stomach cancer. Moreover, as noted above, his stomach cancer is not subject to presumptive service connection on the basis of herbicide exposure. The Board has also considered the Veteran's own statements to the effect that his stomach cancer was incurred as a result of his exposure to herbicides in service. While the Veteran might sincerely believe that to be the case, as a layperson, he is not competent to provide an opinion concerning this matter requiring medical expertise. The Board has duly considered the benefit of the doubt doctrine. 38 U.S.C.A. § 5107; see also Gilbert, supra. However, the preponderance of the evidence is against the Veteran's claim, so that doctrine is not applicable to this claim. The claim must be denied. ORDER Service connection for stomach cancer, claimed as due to exposure to Agent Orange, is denied. REMAND The Board is of the opinion that additional development is required before the remaining claim on appeal is decided. The Veteran's outpatient treatment records from the West Haven VAMC show a long history of treatment for psychiatric disorders, to include bipolar disorder. In a VA Form 21-8940, which was received in April 2012, the Veteran indicated an intent to claim service connection for psychiatric disability secondary to his service connected heart disease and diabetes mellitus. The Board notes that VA is obliged to provide a medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. Based on the foregoing, the Board finds additional development is necessary relative to the Veteran's claim for service connection for psychiatric disability. In addition, any outstanding records pertinent to the claim, to include any more recent VA outpatient records, should be obtained before the other required development is performed. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim, to include any more recent treatment records related to the claimed disability. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, the RO or the AMC should obtain a medical opinion from the examiner who performed the Veteran's April 2011 examination. All pertinent evidence of record must be made available to and reviewed by the examiner. Based on the review of the Veteran's pertinent history, the examiner should identify all acquired psychiatric disorders that have been present during the period of the claim. With respect to each acquired psychiatric disorder that has been present during the period of the claim, the examiner should state an opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that such disorder was caused or permanently worsened by his service-connected heart disease and/or service-connected diabetes mellitus; The rationale must be provided for all proffered opinions. If the examiner is unable to provide any required opinion, the examiner should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. If the prior examiner is unavailable, all pertinent evidence of record should be made available to and reviewed by another psychiatrist or psychologist who should be requested to provide the required opinions with supporting rationale. Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinions. 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or the AMC should furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2014). _________________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs