Citation Nr: 1644192 Decision Date: 11/22/16 Archive Date: 12/01/16 DOCKET NO. 13-04 723 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for esophageal adenocarcinoma status post Ivor-Lewis esophagogastrectomy with jejunostomy tube placement. 2. Entitlement to service connection for esophageal adenocarcinoma status post Ivor-Lewis esophagogastrectomy with jejunostomy tube placement. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD L. McCabe, Associate Counsel INTRODUCTION 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 Veteran served on active duty from August 1960 to May 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA). The RO subsequently reopened the claim and denied service connection in a December 2012 statement of the case. Although the RO reopened the claim, the Board must determine of its own accord whether reopening is warranted before it may address the claims on the merits. Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). In February 2016, the Veteran testified at a videoconference hearing before the undersigned. A transcript of that hearing is of record. FINDINGS OF FACT 1. An unappealed September 2009 Board decision denied service connection for esophageal cancer residuals. 2. The evidence added to the record since the September 2009 Board decision was not previously submitted to agency decisionmakers, is not cumulative or redundant and, by itself or when considered with the previous evidence of record, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for esophageal cancer residuals. 3. The Veteran has a gastrointestinal disability, including esophageal cancer residuals, that is as likely as not related to his active military service. CONCLUSIONS OF LAW 1. The September 2009 Board decision is final. 38 U.S.C.A. §§ 5108, 7103, 7104 (West 2014); 38 C.F.R. §§ 20.1100, 20.1104 (2016). 2. New and material evidence has been presented since the September 2009 Board decision to reopen the claim of service connection for esophageal cancer residuals. 38 U.S.C.A. §§ 1110, 1131, 5108, 7104 (West 2014); 38 C.F.R. §§ 3.104(a), 3.156, 3.159, 20.1103, 20.1104 3.156(a) (2016). 3. The criteria for service connection for a gastrointestinal disability, including esophageal cancer residuals, have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran petitions to reopen a previously denied claim for service connection esophageal cancer residuals. The Board finds that reopening is warranted. The Veteran originally filed a claim for service connection for a gastrointestinal disability, to include esophageal cancer residuals, in July 2005. A February 2006 rating decision denied the claim, and a letter dated that same month notified the Veteran of the decision and of his appellate rights. 38 C.F.R. § 19.25 (2016). He appealed that decision to the Board. 38 U.S.C.A. § 7105(a) (West 2014); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302 (2016). A September 2009 Board decision upheld the denial. The Veteran did not appeal that decision to the United States Court of Appeals for Veteran's Claims and that Board decision became final. 38 U.S.C.A. §§ 7103, 7104 (West 2014); 38 C.F.R. §§ 20.1100, 20.1104 (2016). Since the issuance of the Board's September 2009 denial, new and material evidence has been received in the form of private treatment records from H.E.G., M.D., the Veteran's private treating gastroenterologist, opining that the Veteran's esophageal cancer residuals were directly attributable to the gastrointestinal symptomatology that initially manifested during active service. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1994); Justus v. Principi, 3 Vet. App. 510 (1992). At the time of the September 2009 Board decision, the record did not contain medical opinion evidence linking esophageal cancer residuals to in-service symptomatology. Accordingly, that new evidence relates to an unestablished fact necessary to reopen the claim, and raises a reasonable possibility of establishing service connection for esophageal cancer residuals. 38 C.F.R. § 3.156(a) (2015); Shade v. Shinseki, 24 Vet. App. 110 (2010). Therefore, reopening is warranted and the claim for service connection will be adjudicated. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110 (West 2014). Establishing service connection generally requires competent medical or lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a relationship between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In addition, certain chronic diseases, including malignant tumors, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016). Here, the Veteran's private and VA treatment records show gastrointestinal diagnoses during the pendency of the claim including esophageal adenocarcinoma status post Ivor-Lewis esophagogastrectomy with jejunostomy tube placement, Barrett's esophagus, esophageal ulcer, gastroparesis, and dysplasia, such as in an August 2008 Gastroenterology Follow Up Note from H.E.G., M.D.; September 2010 Treatment Note from H.E.G., M.D.; May 2012 Esophageal Conditions Disability Benefits Questionnaire (DBQ); January 2013 Nexus Statement submitted by H.E.G., M.D.; and July 2015 Nexus Medical Opinion of H.E.G., M.D. Additionally, the service medical records note repeated complaints of gastrointestinal dysfunction, such as in Chronological Records of Medical Care Dated in December 1960, February 1961, February 1962, October 1962, December 1962, January 1963, May 1963, June 1963, July 1963, and December 1963, which note the Veteran's complaints of and treatment for conditions including an upset stomach, severe abdominal pain, indigestion, stomach cramps, pain and tightness in the chest compartment, nervous stomach, vomiting, and diarrhea). Diagnoses made during active service include gastritis, acute gastroenteritis, pylorospasm, esophageal sphincter spasm, as shown in a December 1962 Chronological Record of Medical Care diagnosing "gastritis rule out ulcer disease; a January 1963 Radiographic Report showing a marked spasm of the pylorus and some associated spasm of the esophageal sphincter; March 1963 Chronological Record of Medical Care noting a diagnostic impression of acute gastroenteritis; a June 1963 Radiographic Report noting initial pylorospasm of five minutes duration; and a November 1963 Chronological Record of Medical Care showing a diagnosis of gastroenteritis. In statements and testimony adduced throughout the pendency of the claim, to include at the hearing, the Veteran asserted that he continued to experience progressively worsening gastrointestinal symptomatology during and since active duty. Specifically, he testified at a February 2016 hearing that he has experienced near-constant gastrointestinal dysfunction since active service and that he had continuous treatment for gastrointestinal disorders from separation from service until the present, undergoing treatment from various private medical practitioners. The Board notes that the Veteran is competent to report both the onset and continuity of his gastrointestinal symptomatology, as symptoms including upset stomach, indigestion, and abdominal pain and cramping, are capable of lay observation. Washington v. Nicholson, 19 Vet. App. 362 (2005); Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran is also competent to report undergoing continuous medical treatment for stomach problems from various private treatment providers since his discharge. Washington v. Nicholson, 19 Vet. App. 362 (2005); Layno v. Brown, 6 Vet. App. 465 (1994). The Board additionally finds those competent statements of continuing gastrointestinal symptomatology since active service to be credible. Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001). The Veteran's statements are supported by the testimony of his spouse confirming that he experienced progressively worsening gastrointestinal symptomatology since separation from service and attesting to a continuity of medical treatment for stomach complaints from the 1960s to the present. Moreover, his assertions concerning persistent symptoms are corroborated by private medical records. An August 2008 Gastroenterology Follow Up Note from H.E.G., M.D. notes that the Veteran started having reflux while he was in service, which continued to the present and was the cause of his entire problem. A September 2010 Treatment Note from H.E.G., M.D. notes that the Veteran's gastrointestinal symptoms, including gastroparesis, persistent nausea, and guaiac positive stools, all dated back to 1961 when he was in service. Lay statements made for purposes of obtaining or aiding in medical treatment may be assigned greater probative value because there is a motive to tell the truth to receive proper care. Rucker v. Brown, 10 Vet. App. 67 (1997). The Veteran's competent and credible report of a continuity of gastrointestinal symptomatology since separation from active service suggests a link between the gastrointestinal complaints and service. Duenas v. Principi, 18 Vet. App. 512 (2004). Additionally, the Veteran's competent and credible assertions of the onset and continuity of gastrointestinal symptoms are corroborated by the numerous medical opinions submitted by the private treating gastroenterologist, Dr. H.E.G., finding that his current diagnosis of esophageal cancer residuals, including Barrett's esophagus, esophageal ulcer, gastroparesis, and dysplasia, represent the progression of, and are thus directly attributable to, the Veteran's in-service gastrointestinal manifestations. Although there is there is evidence in the form of a November 2012 VA opinion disassociating the esophageal cancer residuals from active service, that examination report does not constitute probative medical evidence, as it does not address in any meaningful way the Veteran's competent complaints of experiencing continuing gastrointestinal symptoms since active service. Stefl v. Nicholson, 21 Vet. App. 120 (2007). Specifically, the VA examiner based the negative opinion solely on the lack of evidence of a continuity of care or evidence of chronicity of symptoms in the years following service in the November 2012 Medical Opinion DBQ. Furthermore, the examiner did not offer any supporting rationale for the bare assertion that occasional gastroenteritis does not cause esophageal adenocarcinoma 40 years later. The probative value of a medical opinion comes from its reasoning Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiner also did not consider or address the Veteran's records of private medical treatment which show the determination that there exists a positive association between the Veteran's in-service complaints and his currently diagnosed esophageal cancer residuals. The November 2012 VA medical opinion is therefore inadequate, and cannot form the basis for a denial of entitlement to service connection. Furthermore, even assuming the adequacy of the November 2012 VA medical opinion, the Board finds that its probative value is far outweighed by the opinions of the Veteran's private treating gastroenterologist. Dr. H.E.G.'s medical opinions represent the informed conclusion of a specialist in the field of gastroenterology, and are supported by a thorough explanation and based on a review of the Veteran's medical history, the clinical findings made on examination, and the symptomatology reflected in the medical and lay evidence of record. By contrast, the November 2012 VA opinion was put forth by a physician's assistant who was not a specialist in gastroenterology and who had no personal history of treating the Veteran or observing the nature and progression of esophageal cancer. D'Aries v. Peake, 22 Vet. App. 97 (2008) (proper for Board to assign more weight to a physician's opinion when the opinion was in an area of that physician's medical expertise). Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise. When the evidence for and against the claim is in relative equipoise, the Board must resolve all reasonable doubt in favor of the Veteran. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016). Therefore, the Board resolves reasonable doubt in the Veteran's favor and finds that the evidence supports a grant of entitlement to service connection for esophageal adenocarcinoma status post Ivor-Lewis esophagogastrectomy with jejunostomy tube placement. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015). ORDER As new and material evidence has been submitted, the petition to reopen the claim of entitlement to service connection for esophageal adenocarcinoma status post Ivor-Lewis esophagogastrectomy with jejunostomy tube placement is granted. Entitlement to service connection for esophageal adenocarcinoma status post Ivor-Lewis esophagogastrectomy with jejunostomy tube placement is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs