Citation Nr: 1606497 Decision Date: 02/22/16 Archive Date: 03/01/16 DOCKET NO. 13-18 522A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for esophageal cancer, to include as due to exposure to herbicides. 2. Entitlement to service connection for esophageal cancer, to include as due to exposure to herbicides. REPRESENTATION Veteran represented by: Jon Brown, Agent WITNESSES AT HEARING ON APPEAL Veteran, spouse, daughter, and C.B. ATTORNEY FOR THE BOARD Journet Shaw, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The case has since been returned to the RO in St. Paul, Minnesota. The May 2011 rating decision reopened the claim for service connection for esophageal cancer and denied the claim for service connection for esophageal cancer. Despite the RO's action, the Board must perform its own de novo review of whether new and material evidence has been received to reopen the claim of entitlement to service connection for esophageal cancer before addressing the claim on its merits. See 38 U.S.C.A. § 7104 (West 2014); see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board's discussion can be found below. The Veteran, his wife, his daughter, and a medical expert, C.B. testified before the undersigned Veterans Law Judge at a November 2015 videoconference hearing. A transcript of this hearing is of record. In December 2015, the Veteran submitted additional evidence in support of his appeal. The Veteran filed his substantive appeal in July 2013. Accordingly, under the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, this evidence is subject to initial review by the Board because the Veteran did not request in writing that the AOJ initially review such evidence. See 38 U.S.C.A. § 7105(e)(1) (West 2014). FINDINGS OF FACT 1. In a March 2009 rating decision, the RO denied the Veteran's claim for entitlement to service connection for esophageal cancer; the Veteran did not submit a Notice of Disagreement and the decision became final. 2. The evidence received since the March 2009 rating decision is not cumulative or redundant of the evidence, was not previously received evidence, does relate to an unestablished fact, and does raise a reasonable possibility of substantiating the Veteran's claims of entitlement to service connection for esophageal cancer. 3. Resolving all reasonable doubt in favor of the Veteran, the evidence shows that the Veteran's esophageal cancer is etiologically related to his active duty service. CONCLUSIONS OF LAW 1. The March 2009 rating decision that denied the Veteran's claim of entitlement to service connection for esophageal cancer is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2015). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for esophageal cancer. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015). 3. The criteria to establish entitlement to service connection for esophageal cancer have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Given the Board's favorable decision in granting the petition to reopen the claim for entitlement to service connection for esophageal cancer and entitlement to service connection for esophageal cancer, the Board finds that all notification and development actions needed to fairly adjudicate the appeal have been accomplished. I. New and Material Evidence Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c) (West 2014); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, 20.302(a) (2015). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In a March 2009 rating decision, the RO denied the Veteran claim for esophageal cancer. In March 2009, the Veteran was advised of the rating decision and his appellate rights. The Veteran did not file a NOD. In addition, no new and material evidence pertaining to the Veteran's claim was received within one year of the March 2009 rating decision. Therefore, the March 2009 rating decision is final. 38 U.S.C.A § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2015). In the March 2009 rating decision, the RO denied the Veteran's claim for service connection for esophageal cancer. The RO found that the evidence did not show a positive association between the Veteran's esophageal cancer and exposure to herbicides; that it did not show that his esophageal cancer had its onset during active duty service or was caused by such service; and that it did not show that his esophageal cancer had manifested to a compensable degree within a year of his discharge. The evidence of record at the time of this decision consisted of service treatment records, lay statements, and VA treatment records from December 2008 to March 2009. Since the Veteran's last prior final denial in March 2009, the records includes private treatment records, October 2010, February 2011, November 2011, September 2015, and November 2015 private treating physician and independent medical expert opinions, lay statements, and a March 2011 VA examination. The Veteran submitted numerous opinions from his private treating physicians and independent medical experts who found that his esophageal cancer was related to his Agent Orange exposure during active duty service. The Board finds that this evidence is new as it was not previously of record and tends to prove a previously unestablished fact necessary to substantiate the underlying claim of service connection. The opinions of the private treating physicians and independent medical experts will be presumed credible for the purpose of reopening the claim. Consequently, the claim of entitlement to service connection for esophageal cancer is reopened. II. Service Connection The Veteran contends that during his tour in Vietnam from 1966 to 1967, he was exposed to Agent Orange. He asserts that his esophageal cancer is directly related to such exposure. In addition, the Veteran explains that he was told that 90 percent of patients with that type of cancer smoke or chewed tobacco; he denied ever doing either. Moreover, the Veteran submitted numerous lay statements that denied that the Veteran excessively drank alcohol, which is another causal factor for the development of esophageal cancer. Indeed, the lay statements discussed how the Veteran diligently and consistently worked long hours, first, as the owner of a bar for three and half years, and then, as a grocery store manager for over 25 years. See March 2011, December 2013, and November 2015 statements and November 2015 Board hearing transcript. 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; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, such as cancer, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for chronic diseases may also be established by chronicity and continuity of symptomatology. See 38 C.F.R. § 3.303(b). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is 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). Pertinent law further provides that a Veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. 38 U.S.C.A. § 1116 (West 2014); 38 C.F.R. § 3.307(a)(6)(iii) (2015). For purposes of application of this legal presumption, service in the Republic of Vietnam means actual service in-country in Vietnam from January 9, 1962 through May 7, 1975, and includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a) (2015). In this case, the evidence does show that the Veteran served in Vietnam, however, he has not been diagnosed with a presumptive disease for exposure to herbicides. Therefore, the Veteran is not entitled to consideration of presumptive service connection on this basis. See DD Form 214. Notwithstanding the provisions relating to presumptive service connection, a Veteran may establish service connection for a disability with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service treatment records show that the Veteran had no findings related to complaints, treatment, or diagnosis for esophageal cancer. See April 1965 enlistment examination, April 1968 separation examination, and April 1968 report of medical history. Military personnel records reflect that the Veteran served in Vietnam from May 1966 to May 1967. January 2009 VA and private treatment records document that the Veteran was diagnosed with esophageal cancer when he sought treatment for difficulty swallowing. In an October 2010 statement, the Veteran's private treating physician, Dr. R.C., noted that the Veteran did not smoke, had never used alcohol, and had not used any toxic agents that would cause a rare cancer like esophageal cancer. The Veteran had reflux symptoms, but the physician opined that it may have been associated with esophageal his cancer or his exposure to Agent Orange. Finding that the Veteran had a carcinogenic agent, Agent Orange, in his past, Dr. R.C. concluded that it should be considered as the cause of his esophageal cancer. In a February 2011 statement, the Veteran's private treating physician, Dr. D.L.F., found that the Veteran lacked a history of typical exposures that are associated with esophageal squamous cell carcinoma (i.e., smoking and the consumption of large amounts of alcohol). Noting his prior history of Agent Orange exposure and the reported history linking such exposure to esophageal squamous cell carcinoma, Dr. D.L.F. opined that it was likely that his cancer was the result of Agent Orange exposure. In March 2011, the Veteran underwent a VA examination. The VA examiner noted the Veteran's history of esophageal cancer treatment and current symptoms. Upon objective evaluation, the VA examiner confirmed the Veteran's diagnosis of stage III squamous cell carcinoma of the upper third of the esophagus. The VA examiner referred to his review of the October 2010 and February 2011 private opinions. Citing the VA published Agent Orange Review, the VA examiner stated that it "does not qualified agent orange as a etiological factor related to the carcinoma of the esophagus and consequently does not determine sq. cell carcinoma of the esophagus as a service connected medical condition." In November 2011, the Veteran submitted an independent medical expert opinion from Dr. C.N.B. Following a review of the Veteran's medical records and lay statements and an interview and physical examination of the Veteran, Dr. C.N.B. opined that the Veteran's exposure to Agent Orange during his active duty service was the "more likely plausible etiology for his current [squamous cell carcinoma] of his esophagus." Citing medical literature, Dr. C.N.B. noted that Agent Orange was a known carcinogen with biologically plausible pathways to induce cancer. Dr. C.N.B. explained that the Veteran reported drinking on average one beer per week due to his full-time work schedule and explicitly denied all tobacco use. Based on that history, Dr. C.N.B. found that the Veteran lacked any other risk factors for squamous cell carcinoma as his drinking was too minimal to be more carcinogenic than his exposure to Agent Orange. Furthermore, Dr. C.N.B. noted that the time between the Veteran's exposure to Agent Orange during service and his current pathology was consistent with known medical principles and the natural history of the disease. Finally, Dr. C.N.B. found that the March 2011 VA examiner's opinion was cursory and did not provide a rationale, including no discussion of the medical literature or the specific facts of the Veteran's condition. In November 2011, the Veteran submitted another independent medical expert opinion from Dr. S.S.K. Following a review of the Veteran's medical history, Dr. S.S.K. concluded that based on the Veteran's lack of history of significant tobacco or alcohol use, which might explain the development of his esophagus carcinoma, it was reasonable to conclude that his cancer was the result of his exposure to toxins contained in Agent Orange. In response to the assertions made by the RO in the May 2011 rating decision and May 2013 statement of the case that the Veteran's alcohol intake contributed to his development of esophageal cancer, the Veteran submitted a September 2015 independent medical opinion from Dr. C.N.B. Reiterating the Veteran's denial that he drank excessively, Dr. C.N.B. described how the Veteran's laboratory results did not reflect a typical pattern of liver enzyme changes that would exist in patients who abused alcohol. Citing National Institute of Health research, Dr. C.N.B. noted that there was no evidence that alcohol consumption by itself was a complete carcinogen, meaning that it caused cancer by itself. The research showed that there was a synergistic effect (four-fold increase in risk) of alcohol and smoking on the risk of esophageal cancer. The Veteran had no history of smoking. Admitting that it was difficult to say which carcinogen was most responsible for the Veteran's development of esophageal cancer, Dr. C.N.B. repeated his prior opinion that the Veteran's exposure to Agent Orange caused his esophageal cancer. The Veteran's medical records document that he had a history of heartburn and Zenker's diverticulum (defined as a diverticulum at the junction of the pharynx and esophagus, see Dorland's Illustrated Medical Dictionary 559 (32nd ed. 2012)). In a November 2015 opinion, Dr. C.N.B. explained how these conditions did not cause the Veteran's esophageal cancer. The Veteran had a Zenker's diverticulum which was surgically removed thus removing any risk of cancer in the diverticulum. He developed esophageal carcinoma in another location in the esophagus many years later. Based on these findings and the medical literature, Dr. C.N.B. opined that the Veteran's esophageal cancer was not caused by his Zenker's diverticulum. With regard to the Veteran's history of heartburn 25 years ago, Dr. C.N.B. noted that the Veteran lacked a Barrett's esophagus diagnosis, which would be a precursor to cancer induced by reflux. The Veteran testified that his symptoms were minimal and that once he changed his eating habits (no fatty meals before bedtime and use of antacid pills), his heartburn had stopped years ago. Thus, Dr. C.N.B. concluded that his heartburn was a less likely cause of his esophageal cancer than his exposure to Agent Orange during active duty service. As an initial matter, the evidence shows that the Veteran served in the Republic of Vietnam. Thus, the Veteran is presumed to have been exposed to herbicides. However, esophageal cancer is not a presumptive disease for exposure to herbicides under 38 C.F.R. § 3.309(e). Nevertheless, the Veteran can still establish that he is entitled to service connection for a disease claimed to be related to herbicide exposure, if there is proof of direct causation. See Combee v. Brown, supra. Based on the foregoing and resolving all reasonable doubt in favor of the Veteran, the Board concludes that the Veteran's esophageal cancer was caused by his exposure to Agent Orange during his active duty service. The record includes conflicting medical opinions as to whether the Veteran's esophageal cancer is etiologically related to his Agent Orange exposure. In assessing the relative probative value of the competing medical opinions, the Board affords more value to the opinions that offer comprehensive explanations and complete rationales for the conclusions offered. See Nieves-Rodriguez, 22 Vet. App. at 304 (most of the probative value of a medical opinion comes from its reasoning, and neither an examination report nor a medical opinion are entitled to any weight if it contains only data and conclusions); See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) ("the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted"). The Board finds that the November 2011, September 2015, and November 2015 independent medical opinions, collectively, provide the most probative evidence as to the etiology of the Veteran's esophageal cancer as they were based on a complete rationale, including a consideration of the Veteran's specific medical history, the competent and credible lay testimony, and the likelihood of other risk factors. By contrast, the March 2011 VA examiner's opinion was based on conclusory statements without any rationale. Therefore, the March 2011 VA opinion offers little probative value. For the foregoing reasons, the Board finds that, resolving all reasonable doubt in favor of the Veteran, the Veteran is entitled to service connection for esophageal cancer, and therefore, service connection must be granted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence has been received, and the appeal to reopen the claim for entitlement to service connection for esophageal cancer is granted. Entitlement to service connection for esophageal cancer is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs