Citation Nr: 18140765 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 15-40 699 DATE: October 5, 2018 ORDER Entitlement to service connection for appendiceal adenocarcinoma, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is denied. FINDING OF FACT Appendiceal adenocarcinoma did not have its clinical onset in service; was not manifested during any applicable presumptive period; and is not otherwise related to active service. CONCLUSION OF LAW The criteria for service connection for appendiceal adenocarcinoma, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.309, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1987 to October 1991. His service personnel records confirm service in the Southwest Asia Theater of operations during the Persian Gulf War. Entitlement to service connection for appendiceal adenocarcinoma, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. Service connection may be established for an injury or disease resulting in disability that was incurred in the line of duty in active service or, if pre-existing such service, was aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. There must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For Veterans with service in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may also be established under 38 C.F.R. § 3.317. Under that section, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active service in the Southwest Asia theater of operations during the Persian Gulf War. For disability due to undiagnosed illness and medically unexplained chronic multi symptom illness, the disability must have been manifest either during active military service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021. See 38 C.F.R. § 3.317 (a)(1). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. 1117 (d) warrants a presumption of service connection. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117; 38 C.F.R. § 3.317, unlike those for “direct service connection,” there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317 (a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). A medically unexplained chronic multi-symptom illness is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi-symptom illness. A “medically unexplained chronic multi symptom illness” means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by “overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.” Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). “Objective indications of chronic disability” include both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317 (a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317 (b). For purposes of this section, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317 (a)(4). Presumptive service connection is also warranted for certain infectious diseases, however, they are not pertinent to the issues currently before the Board. See 38 C.F.R. § 3.317 (c)(2). The Veteran asserts that he has developed appendiceal adenocarcinoma as a result of his period of active service in the Persian Gulf Theater of Operations during the Persian Gulf War. He contends that he was exposed to various contaminants while stationed in Southwest Asia that have caused the appendiceal adenocarcinoma with metastasis to the colon. In correspondence dated in February 2014, the Veteran indicated that his oncologist had suggested that contaminants that he had been exposed to in the Gulf had contributed to his disease. The Veteran has also suggested that he had experienced gastroesophageal reflux disease and irritable bowel syndrome since service, and that this may have been a precursor to his current disorder. Private medical treatment records since service confirm that the Veteran has been diagnosed with appendiceal adenocarcinoma with metastasis to the colon. The private medical evidence of record does not provide an opinion as to the etiology of the diagnosed disability. A VA examination report dated in March 2014 shows that the VA examiner opined that the appendiceal adenocarcinoma was a diagnosable condition with a partially explained etiology. The examiner added that it was less likely as not that the condition was due to a specific exposure event experienced by the Veteran in Southwest Asia. In December 2017, the Board determined that the March 2014 VA medical opinion was slightly inadequate in that the examiner did not provide a substantial basis for the opinion, and did not address whether the Veteran’s asserted symptoms of gastroesophageal reflux disease and irritable bowel syndrome may have been a causative factor in the later-diagnosed adenocarcinoma. As such, an additional VHA medical opinion was sought. A VA Specialist Opinion dated in July 2018 shows that the medical specialist indicated that a July 2012 private medical record had shown that the Veteran was very healthy until most recently when he presented to a gastroenterologist with complaints of bloating and abdominal pain. A computed tomography (CT) scan and biopsy confirmed a cancer diagnosis. The medical specialist referenced the American Society of Clinical Oncology (ASCO) in establishing that symptoms of appendiceal adenocarcinoma include appendicitis, ascites, bloating, abdominal pain, increased girth, changes in bowel functions and/or infertility. There were usually no symptoms of this type of cancer until appearing in other organs. Therefore, the Veteran’s symptoms of bloating and abdominal pain in 2012 would have been symptoms associated with appendiceal adenocarcinoma. The medical specialist further opined that it was less likely than not that the Veteran’s active duty service was related to any of his gastrointestinal disorders. A December 1984 record from Community Hospital was referenced that noted he had been recently treated with Immodium for irritable colon; prior to the Veteran’s deployment. He had been on record in March 1987 of marking “yes” to stomach, liver, or intestinal trouble on his report of medical history. In the comment section, he elaborated that stomach tenderness was now normal with no problems. The medical specialist indicated that there was currently no gastrointestinal disorder that had conceded service connection with the Gulf War per Board guidelines. The medical specialist concluded that it was less likely than not that the Veteran’s appendiceal adenocarcinoma was related to active service; adding that the only identifiable risk factor for appendiceal adenocarcinoma was increasing age. In correspondence received in August 2018, the Veteran, in pertinent part, reiterated that he had been asymptomatic at the time of his entrance into service, and that he had not been treated for any chronic gastrointestinal issues during active service. He contended that all of his symptoms manifested following his deployment to Southwest Asia. He also indicated that during his deployment, he had been exposed to a variety of environmental carcinogens. He also noted that he had no family history of colon cancer. In support of his claim, the Veteran also submitted a number of treatises demonstrating a relationship between environmental toxins (to include those found during the Gulf War) and the development of cancer. Having carefully considered the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran’s claim of service connection for appendiceal adenocarcinoma. In this regard, there is no evidence of appendiceal adenocarcinoma in service and no treatment for related symptoms until many years after separation. The Veteran, himself, conceded that there was no treatment for gastrointestinal symptoms during active service. Moreover, there is no evidence of a nexus between active service and the currently diagnosed appendiceal adenocarcinoma. There is also no evidence of record to suggest that the Veteran had manifested a cancerous tumor within one year of separation from service. Additionally, appendiceal adenocarcinoma is not a qualifying chronic disability, as it is neither as undiagnosed illness or a medically unexplained multi-symptom illness. Thus, service connection solely on the basis of service specifically in the Southwest Asia theater of operations is not warranted. The Board finds probative the July 2018 opinion of the VA medical specialist as it was definitive, based upon a complete review of the Veteran’s entire claims file, and supported by detailed rationale. The Veteran has not provided any competent medical evidence to rebut the opinion against the claim or otherwise diminish its probative weight. The Board recognizes the Veteran’s contentions that he has developed appendiceal adenocarcinoma as a result of active service. When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination medical in nature and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau, 492 F.3d at 1376-77. To the extent that the Veteran is able to observe continuity of appendiceal adenocarcinoma, his opinion is outweighed by the competent medical evidence. Appendiceal adenocarcinoma is too complex an issue, one typically determined by persons with medical training, to lend itself to lay opinion evidence. See Jandreau, supra. The diagnosis or opinion on etiology cannot be made by the Veteran as a lay person since he has not demonstrated the expertise in medical matters and, therefore, is not competent to render a medical etiology of the disability in this case. Even if he could provide a competent opinion as to etiology in this instance, the Board finds that the reasoned opinion of a medical professional is more probative than the lay assertions. The VA medical specialist has medical education, training, and expertise that the Veteran is not shown to have. With specific regard to the various treatises submitted by the Veteran demonstrating a relationship between environmental toxins (to include those found during the Gulf War) and the development of cancer, the submissions provide medical information that is very general in nature and does not address the specific facts of the Veteran’s claim before the Board. As the generic medical treatises do not specifically state an opinion as to the relationship between the Veteran’s current appendiceal adenocarcinoma and service, it is insufficient to establish the element of medical nexus evidence. See Sacks v. West, 11 Vet. App. 314 (1998). Overall, the evidence is not in relative equipoise, as the most probative evidence of record addressing the etiology and onset of the Veteran’s asserted symptoms weighs against service incurrence. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. The benefit sought on appeal must, therefore, be denied. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals