Citation Nr: 1633199 Decision Date: 08/22/16 Archive Date: 08/26/16 DOCKET NO. 12-19 814 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for residuals of esophageal cancer, status post-surgery, including fatigue and memory loss, as a result of exposure to herbicides. REPRESENTATION Veteran represented by: Jeffrey E. Marion, Attorney at Law ATTORNEY FOR THE BOARD Joshua Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1964 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In this regard, a rating decision issued in November 2010 initially denied the Veteran's service connection claim; however, as additional relevant records were received within one year of such decision, the RO readjudicated the matter in the June 2011 rating decision pursuant to 38 C.F.R. § 3.156(b) (2015). Thereafter, the Veteran perfected an appeal as to such decision. In November 2013, the Board remanded the case for additional development and it now returns for final appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicides coincident with his service in the Republic of Vietnam. 2. Esophageal cancer, to include the residuals thereof, is not related to any disease, injury, or incident of service, to include herbicide exposure, and did not manifest within one year of service discharge. CONCLUSION OF LAW The criteria for service connection for esophageal cancer, to include the residuals thereof, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a June 2010 letter, sent prior to the initial unfavorable decision issued in June 2011, advised the Veteran of the evidence and information necessary to substantiate his service connection claim as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, such letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment records and post-service treatment records, to include records from the Social Security Administration (SSA), have been obtained and considered. In November 2013, the Board requested VA treatment records dated from May 2002. Upon remand, the relevant VA medical center provided records from March 2010 and twice indicated that earlier records do not exist. The Veteran was notified to this effect, in December 2015, and has not identified any additional, outstanding records that have not been requested or obtained. In view of this information, the Board finds that it is reasonably certain that records dated prior to March 2010 do not exist and that further efforts to obtain the records would be futile. See 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(2). The Veteran was afforded a VA examination for his esophageal cancer in June 2015. The Board finds that such VA examination and accompanying opinion is adequate to decide the issue as they are predicated on an interview with the Veteran; a review of the record, to include his relevant medical history; and an appropriate examination. The opinion proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issues decided herein has been met. As indicated previously, in November 2013, the Board remanded the case to afford the Veteran a VA examination and obtain outstanding SSA and VA records, which have been completed. Therefore, the Board finds that the agency of original jurisdiction has substantially complied with the November 2013 remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis The Veteran seeks service connection for residuals of esophageal cancer, which he relates to herbicide exposure during service in the Republic of Vietnam. Service connection is established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during periods of active service. 38 U.S.C.A. § 1110. In general, service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, such as a malignant tumor, may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. § 3.309(a). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. However, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus."). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all Veterans who served in Vietnam during the Vietnam Era. See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). In the instant case, the Veteran's service personnel records reflect service in the Republic of Vietnam during such era. Therefore, he is presumed to have been exposed to herbicides coincident with such service. If a Veteran was exposed to a herbicide agent during active service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) are among those designated diseases. 38 C.F.R. § 3.309(e). However, esophageal cancer is not included among such diseases. Notwithstanding the foregoing, the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). VA and private treatment records reflect that the Veteran was diagnosed with esophageal cancer in June 2002 and has continued to experiences residuals thereof. See, e.g., Private treatment record (June 4, 2002). Thus, the current disability criterion is met. The evidence does not show, and the Veteran does not contend, that esophageal cancer had its onset during service or within one year of his service discharge. He also does not contend that he had a continuity of symptoms of esophageal cancer since service. Accordingly, service connection on such bases is not warranted. Rather, as noted above, the Veteran contends that esophageal cancer is related to in-service herbicide exposure. Esophageal cancer is not presumptively related to herbicide exposure as it is not listed under 38 C.F.R. § 3.309(e). Accordingly, this case turns on whether the Veteran's esophageal cancer, and residuals thereof, is related to his presumed exposure to herbicide agents in the Republic of Vietnam. To that end, a June 2015 VA examiner opined that it is less likely than not that esophageal cancer, and any residuals thereof, had its clinical onset during active service or is related to any in-service disease, event, or injury, to include presumed exposure to herbicides. The rationale was that, according to UpToDate, esophageal carcinoma rises from a region of Barrett's metaplasia, which is due to gastro esophageal reflux disease (GERD). Among patients who have Barrett's esophagus, the risk of developing esophageal cancer is increased at least 30-fold above that of the general population. Other risk factors include smoking, alcohol use, obesity, H. Pylori infection, epidermal growth factor polymorphisms, GERD, drugs that decrease lower esophageal sphincter pressure, and cholecystectomy. Esophageal carcinoma is largely a disease of Caucasians and males. The American Cancer Society notes cancers of the gastrointestinal system--esophagus, stomach, liver, pancreas, colon, and rectum--have been extensively studied in Vietnam Veterans, groups with herbicide exposure in the workplace, and people exposed to dioxins. A link between these exposures and any gastrointestinal cancer has not been found. The examiner further explained that the Veteran has a strong history of smoking, 35 pack years. Additionally, several private physicians noted that the Veteran's esophageal cancer arose from Barrett's esophagus, which was secondary to GERD. See, e.g., Private treatment records, (June 11, 2002; June 13, 2002). The Board finds that none of the medical evidence of record relates the Veteran's esophageal cancer to service, to include his acknowledged herbicide exposure, but rather attributes it to nonservice-connected GERD and smoking. The Board considered Veteran's contentions that his esophageal cancer is related to his herbicide exposure. However, cancer is not a simple medical condition the Veteran is competent to self-diagnose and an opinion as to its etiology is equally complex. Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer.") (emphasis added). The Veteran has not shown that he is qualified through education, training, or experience to offer medical diagnoses or opinions on complex medical conditions. Accordingly, he is not competent to offer an opinion as to the etiology of his cancer and his opinion in this regard is of no probative value. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In February 2013, the Veteran's attorney argued that service connection is warranted on the basis of a past Board decision that granted service connection for esophageal cancer due to herbicide exposure. First, prior Board decisions are non-precedential, and thus, not binding on future adjudications. 38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.1303. Second, the facts of the cited Board decision are distinguishable from those at bar. Specifically, the cited Board decision granted service connection on the basis of two favorable medical opinions. Here, however, there are no favorable medical opinions. In this regard, the medical evidence of record does not link the Veteran's esophageal cancer to his in-service herbicide exposure, but instead to his longstanding history of smoking and nonservice-connected GERD. In sum, the Board finds that service connection for residuals of esophageal cancer, status post-surgery, including fatigue and memory loss, as a result of exposure to herbicides, is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for residuals of esophageal cancer, status post-surgery, including fatigue and memory loss, as a result of exposure to herbicides, is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs