Citation Nr: 1736751	
Decision Date: 09/01/17    Archive Date: 09/19/17

DOCKET NO.  10-27 298	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to service connection for esophageal cancer.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. Thompson, Associate Counsel 


INTRODUCTION

The Veteran had active military service from January 1969 to October 1970, including service in the Republic of Vietnam from June 1969 to January 1970.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin.  

The Veteran testified before the undersigned in April 2017 and a transcript of this hearing is of record.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014). 


FINDING OF FACT

The Veteran is presumed to have been exposed to herbicides during his service in the Republic of Vietnam and the competent evidence is at least in relative equipoise as to whether this exposure led to the development of esophageal cancer.


CONCLUSION OF LAW

Service connection for esophageal cancer is warranted.  38 U.S.C.A. §§ 1110, 1116, 5107 (West 2016); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran seeks service connection for esophageal cancer under two separate theories of entitlement.  As this grant is predicated upon one of these theories, the Board finds it unnecessary to discuss the other theory.  Further, as this decision grants the benefit sought, there is no need to discuss VA's efforts to notify and assist in this appeal.

The record documents the Veteran's service in the Republic of Vietnam.  Based on this service, the Veteran is presumed to have been exposed to herbicides.  Esophageal cancer is not among the diseased provided presumptive service connection under VA regulation.  See 38 C.F.R. §§ 3.307, 3.309.  Service connection is warranted, however, if competent evidence links a non-presumptive disease to the presume herbicide exposure.  See 38 U.S.C.A. § 1110, Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). 

Here, there are multiple opinions that address the contended nexus between the presumed exposure and the development of esophageal cancer.  The Veteran has submitted multiple private opinions in which clinicians opine that the diagnosed esophageal cancer is at least as likely as not due to the presumed herbicide exposure.  These clinicians cite to the Veteran's family and personal health history and medical knowledge in providing these positive opinions.  Although cognizant that a VA examiner provided a negative opinion, the examiner's rationale cites, essentially, to the findings of the Institute of Medicine (IOM) without rationale tailored to the circumstances and medical history of the Veteran, and based on this lack of tailored rationale this opinion is of limited probative value.  

In summary, the evidence documents a current diagnosis.  Considering the competent medical evidence and the probative value of each opinion of  record, the Board finds that it is at least in relative equipoise as to the question of nexus.  On this basis, the Board grants service connection.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.


ORDER

Entitlement to service connection for esophageal cancer is granted.




____________________________________________
Nathaniel J. Doan
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs