Citation Nr: 1623819 Decision Date: 06/14/16 Archive Date: 06/29/16 DOCKET NO. 13-17 636 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for pancreatic cancer, to include as due to herbicide exposure in the Republic of Vietnam, and to include as secondary to service-connected hypertension. 2. Entitlement to service connection for sleep apnea, to include as secondary to service-connected sinusitis and/or hypertension. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M. D. Bruce, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1963 to November 1988, including service in the Republic of Vietnam from March 1968 to March 1969, and his decorations include the Purple Heart Medal. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. These matters were remanded in December 2013 and July 2014 so that a hearing could be scheduled. In August 2014, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. Since the Agency of Original Jurisdiction (AOJ) last considered the appeal, the Veteran submitted additional evidence. With the exception of evidence discussed below, the Veteran did not request in writing that the AOJ initially review the evidence and, as such, initial review of the evidence by the Board is appropriate. See 38 U.S.C.A. § 7105(e) (West 2014). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of entitlement to service connection for sleep apnea is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT The probative, competent evidence is against a finding that the Veteran's pancreatic cancer is related to service, to include herbicide exposure in the Republic of Vietnam, or is proximately caused or aggravated by his service-connected hypertension. CONCLUSION OF LAW The criteria for service connection for pancreatic cancer have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions with respect to the issues decided herein. 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); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). A November 2011 letter satisfied the duty to notify provisions with respect to the issue decided herein, to include notification of the regulations pertinent to the establishment of an effective date and disability rating. With respect to the duty to assist, the Veteran's service treatment records, private treatment records, and lay evidence are associated with the record. In December 2015, in accordance with 38 U.S.C.A. § 7109 (West 2014) and 38 C.F.R. § 20.901 (2015), the Board obtained a medical expert opinion from the Veterans Health Administration (VHA) with respect to a relationship between the Veteran's pancreatic cancer and presumed in-service exposure to herbicides. In February 2016, the Veteran and his representative were provided a copy of the VHA opinion and afforded the opportunity to submit additional evidence and argument. The Board notes that the Veteran subsequently submitted medical opinions and asked that his case be remanded to the AOJ for consideration of the new evidence. Upon review, however, the Board finds that the opinions are duplicates of those already of record and, accordingly, have already been considered by the AOJ. The Board finds the VHA opinion sufficient and adequate for purposes of determining service connection. The VHA medical expert reviewed the Veteran's relevant medical history and provided a sufficient rationale for the opinion stated. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from whether it is factually accurate, fully articulated, and has sound reasoning for the conclusion, not from the mere fact that the claims file was reviewed). The Board notes that the Veteran's representative has expressed concern regarding the adequacy of the opinion; specifically, the representative noted that the opinion was "gender specific" and incorrectly stated that the Veteran was obese. Upon review, the Board finds that while the VHA medical expert cited to studies of female Vietnam veterans because no relevant studies of male Vietnam veterans were available, the expert also discounted and did not rely upon these studies in forming the opinion. Furthermore, while the representative has argued that the Veteran is not obese and thus the opinion is inaccurate, the Veteran's medical records, specifically a December 2011 statement from Dr. D. Song, note a diagnosis of obesity. Accordingly, the opinion is adequate. The Board notes that the issue decided herein has also been characterized by the Board as a claim for service connection as secondary to the Veteran's service-connected hypertension. The VHA medical expert was not asked to address a relationship between the Veteran's service-connected hypertension and his pancreatic cancer; however, the Board finds that VA was not obligated to provide an examination or opinion with respect to this theory. Generally, a VA medical examination is required for a service connection claim only 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 certain diseases manifesting 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) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Here, the record demonstrates that the Veteran has pancreatic cancer and that he is service-connected for hypertension. However, upon review, the Board finds that the Veteran has never alleged a relationship between his hypertension and his pancreatic cancer. Neither he nor his representative argued as such during his August 2014 hearing or in the March 2016 response to the VHA medical opinion. In an August 2013 statement, the Veteran's representative suggested some relationship between the two conditions based on medical articles submitted by the Veteran. However, while the articles submitted by the Veteran suggest a relationship between a specific type of hypertension, sinistral portal hypertension, and pancreatic pathology, the evidence does not reflect that the Veteran has been diagnosed with sinistral portal hypertension. Furthermore, the medical articles submitted suggest that sinistral portal hypertension, noted to be a rare condition, is a manifestation of pancreatic issues rather than a cause. As a result, the Board finds the evidence does not meet the threshold to obtain a VA opinion or examination. See VAPOGCPREC 27-97, 72 Fed. Reg. 63604 (1997); Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008); McLendon, 20 Vet. App. at 83. The Federal Circuit has also addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Here, there is no medically competent evidence of a relationship between the Veteran's hypertension and his pancreatic cancer, and there is only the unsupported lay assertion of a connection inherent in any service connection claim. Since there is no competent suggestion of a link between the Veteran's hypertension and his pancreatic cancer, referral for a VA medical examination or opinion as to this theory of entitlement is not warranted. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met with respect to the Veteran's service connection claim for pancreatic cancer. 38 C.F.R. § 3.159(c)(4). 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) (2015) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The August 2014 hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate the claims. In addition, the Veteran was assisted at the hearing by an accredited representative from Disabled American Veterans. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran, and neither the Veteran nor his representative has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). There is no indication in the record that any additional evidence relevant to the issue is available and not part of the claims file. See Pelegrini, 18 Vet. App. 112. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield, 444 F.3d 1328; see also Dingess/Hartman, 19 Vet. App. at 483; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). The Board has thoroughly reviewed all of the evidence in the Veteran's claims file. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matter decided herein. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Analysis The Veteran has asserted that he has pancreatic cancer as a result of exposure to herbicides in the Republic of Vietnam. Service connection may be established for disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1101, 1110. 1131; 38 C.F.R. § 3.303. 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In the case of a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, namely from February 28, 1961, to May 7, 1975, VA regulations provide that he shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). Certain diseases shall be service connected if a veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, and provided further that the requirements of 38 C.F.R. § 3.307(d) are satisfied. The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341 -346 (1994); see also Notice, 61 Fed. Reg. 41,442 -449 (1996). Further, the Secretary has found that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 68 Fed. Reg. 27,630 (May 20, 2003). Pancreatic cancer is not a disease specifically presumed to be caused by herbicide exposure. 38 C.F.R. § 3.309(e). Nevertheless, presumptions of service connection are not intended to limit service connection to that basis of entitlement when the evidence warrants direct service connection. 38 C.F.R. § 3.303(d). Direct service connection may be granted for disease or disability diagnosed in service; or, if diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Id. With respect to a current disability, the record reflects a diagnosis of pancreatic cancer during the pendency of the appeal. Accordingly, the Board finds that the Veteran has established a current disability for service connection purposes. With respect to an in-service event or injury, the record reflects that the Veteran served in the Republic of Vietnam from March 1968 to March 1969. Accordingly, he is presumed to have been exposed to herbicides. 38 C.F.R. § 3.307(a)(6)(iii). As such, the Veteran has established an in-service event or injury for service connection purposes. With respect to a nexus between the Veteran's current disability and the in-service event, there are conflicting opinions. The Board has the authority to consider the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In evaluating the probative value of competent medical evidence, the Court has stated that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Further, the credibility and weight to be attached to these opinions are within the province of the adjudicator. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As such, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In December 2011, one of the Veteran's physicians, Dr. C. Henderson of a Hematology-Oncology practice, provided an opinion. Dr. Henderson opined that, while he was not an expert in environmental medicine and occupational safety, it was certainly a possibility that could not be ruled out that the Veteran's pancreatic cancer was caused by herbicide exposure. In the same month, another physician, Dr. A. Douglass, also opined that the Veteran's herbicide exposure contributed to his current illnesses, including pancreatic cancer. The Board notes that Dr. Henderson also completed a Gallbladder and Pancreas Conditions Disability Benefits Questionnaire on the Veteran's behalf in February 2012, but did not provide a further etiological opinion. Upon review, the Board finds that both Dr. Henderson and Dr. Douglass failed to provide rationales for the opinions stated and, as such, the Board must afford the opinions little probative weight. See Madden, 125 F.3d at 1477; Nieves-Rodriguez, 22 Vet. App. 295 (the probative value of a medical opinion comes from sound reasoning). Conversely, in December 2015, the VHA medical expert provided a negative opinion with respect to a relationship between the Veteran's herbicide exposure and his pancreatic cancer. The examiner ultimately opined that there was insufficient evidence to conclude that the Veteran's pancreatic cancer is at least as likely as not related to his service in Vietnam. In support of the opinion, the examiner cited to recent medical literature for the proposition that there is inadequate or insufficient evidence to determine whether there is an association between exposure to herbicides and pancreatic cancer. The examiner noted that there are no studies which report an increased risk of pancreatic cancer among male Vietnam veterans, but that two studies report an increased risk for pancreatic cancer among female Vietnam veterans. The examiner also explained, however, that these studies did not control adequately for smoking, which is a known risk factor for pancreatic cancer. The examiner opined that the Veteran was at an increased risk for pancreatic cancer due to his obesity and his race, which are known risk factors for pancreatic cancer. Upon review, the Board finds the VHA medical expert's opinion has high probative value. The expert reviewed the evidence and cited to medical literature in support of the opinion, and provided an adequate rationale for the opinion. See Nieves-Rodriguez, 22 Vet. App. 295. The Board recognizes that the Veteran is competent to describe symptoms that he is able to perceive through the use of his senses. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, a layperson without medical training is not qualified to render a medical diagnosis or medical opinion concerning the etiology of pancreatic cancer. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (noting that lay testimony is competent to establish observable symptomatology but not competent to establish medical etiology or render medical opinions). The Board finds the origin or cause of such disabilities is not a simple question that can be determined based on mere personal observation by a lay person, and as such, the Veteran's lay testimony is not competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Davidson, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Here, the evidence does not show that the Veteran possesses the requisite training or credentials needed to render a competent opinion as to the medical causation of his current pancreatic cancer. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). As such, the Veteran's lay opinion does not constitute competent medical evidence. Additionally, the Board notes that in his Substantive Appeal the Veteran referenced a January 2003 Board decision rendered in a different appellant's appeal that awarded service connection for the cause of death of a veteran due to metastatic pancreatic cancer, and discussed an etiological relationship between diabetes mellitus due to herbicide exposure and pancreatic cancer. However, the Board notes that past opinions are non-precedential, and the decision as to one veteran can have no precedential weight in the decision for a different veteran. 38 C.F.R. § 20.1303 (2015). As a result, this evidence is not probative with respect to the Veteran's claim. Upon review, the Board finds that the Veteran has not established a nexus between his pancreatic cancer and any in-service event or injury, including herbicide exposure. Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). As a current disability has been shown, the remaining element is whether or not the Veteran's pancreatic cancer has been caused or aggravated by his service-connected hypertension. The only evidence in support of the vague assertion of a relationship between the two conditions are medical articles submitted by the Veteran which address a relationship between pancreatic disease and a specific type of hypertension, sinistral portal hypertension. While the Board has reviewed the literature provided by the Veteran, it notes that the Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). In short, articles and treatises tend to be general in nature and tend not to relate to the specific facts in a given veteran's claim. The articles submitted by the Veteran fall into this general category. The articles do not pertain specifically to this Veteran, and the articles are not combined with any opinion of a medical professional. Furthermore, the record does not reflect that the Veteran has been diagnosed with sinistral portal hypertension and, in any event, the medical articles tend to suggest that pancreatic disease leads to sinistral portal hypertension, rather than this specific type of hypertension leading to pancreatic disease. Therefore, this evidence is not probative with regard to the issue on appeal. As there is no other evidence, let alone competent evidence, regarding whether the Veteran's hypertension has caused or aggravated his pancreatic cancer, the claim cannot be granted on a secondary basis. Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for pancreatic cancer on a direct basis, to include as due to herbicide exposure in the Republic of Vietnam, as well as on a secondary basis, to include as due to the Veteran's service-connected hypertension. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable, and service connection must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for pancreatic cancer, to include as due to herbicide exposure in the Republic of Vietnam, and to include as secondary to service-connected hypertension, is denied. REMAND The Veteran asserts that his current sleep apnea is caused or aggravated by his service-connected hypertension and/or sinusitis or, alternatively, that it is directly related to service. The record does not show that a VA examination was performed specifically in connection with the Veteran's claim of entitlement to service connection for sleep apnea. Here, the record reflects a diagnosis of sleep apnea during the pendency of the appeal. Further, the record reflects that service connection is in effect for hypertension and sinusitis. The Veteran has asserted that chronic bouts of sinusitis have contributed to his sleep apnea, and has submitted medical articles suggesting a relationship between hypertension and sleep apnea. As there is no competent medical opinion of record, the Board finds that one should be obtained upon remand. McLendon, 20 Vet. App. at 83. Additionally, the record does not reflect the Veteran has been provided with proper VCAA notice of the information and evidence needed to substantiate his secondary service connection claim. Accordingly, upon remand the Veteran should be provided with VCAA notice concerning secondary service connection. Furthermore, the record reflects that the Veteran obtains private treatment for his conditions. Upon remand, he should be afforded with the opportunity to provide VA with releases for his private care providers in order to obtain updated treatment records. Accordingly, the case is REMANDED for the following actions: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Send a proper VCAA notice letter to the Veteran and his representative. The letter should notify the Veteran and his representative of the information and evidence necessary to substantiate his claim of secondary service connection. 2. Provide the Veteran with the opportunity to identify any private care providers who provide treatment for his sleep apnea. Then, obtain and associate with the record treatment records from any other private care providers identified by the Veteran. All actions to obtain such records should be fully documented in the claims file. The RO must make two attempts to obtain any private records identified, unless the first attempt demonstrates that further attempts would be futile. If private records are identified but not obtained, the RO must notify the Veteran and his representative of (1) the records sought, (2) the steps taken to obtain the records, (3) that the claim will be adjudicated based on the evidence available, and (4) that if the records are later obtained, the claim may be readjudicated. 3. Schedule the Veteran for a VA examination to determine the current nature and etiology of his sleep apnea. The Veteran's claims file, to include a copy of this Remand, should be made available to the examiner in conjunction with the examination. Any medically indicated tests should be accomplished. After a review of the evidence, to include the Veteran's service treatment records, private treatment records, and with specific consideration of the Veteran's lay statements regarding his symptoms and the medical articles submitted by the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that sleep apnea began in service, was caused by service, or is otherwise related to service. If the above opinion is negative, then the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current sleep apnea is caused or aggravated by the Veteran's service-connected hypertension or sinusitis. Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability. In formulating the opinion, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. A complete rationale should be provided for any opinion or conclusion expressed. 4. After all development has been completed, re-adjudicate the claim of entitlement to service connection for sleep apnea, to include as secondary to service-connected hypertension and/or sinusitis. If the benefit sought on appeal is not granted to the fullest extent, issue the Veteran and his representative a Supplemental Statement of the Case and provide a reasonable opportunity to respond before the case is returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs