Citation Nr: 18143180 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 17-38 148 DATE: October 18, 2018 ORDER Entitlement to service connection for a lumbar spine disability, to include degenerative disc disease, is denied. Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents, is denied. Entitlement to service connection for esophageal adenocarcinoma, to include as due to exposure to herbicide agents, is denied. FINDINGS OF FACT 1. The Veteran’s lumbar spine disability did not manifest within one year of his service, and is not related to an in-service event, illness, or injury. 2. The Veteran’s hypertension did not present itself during service, nor within one year after service, and is not a disease considered to be caused by exposure to herbicide agents. 3. The Veteran’s esophageal adenocarcinoma was not caused by an in-service event, illness, or injury, and it is not a disease considered to be caused by exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability, to include degenerative disc disease, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for esophageal adenocarcinoma have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Army from January 1970 to September 1971, including service in the Republic of Vietnam. Additional medical records were received after the last statement of the case in May 2018. As these records are not relevant to the claims in this decision. Thus, a waiver is not necessary, and this matter is properly before the Board. Service Connection Service connection is warranted where the evidence of record established that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if preexisting, such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). “To establish a right to compensation for a present disability, a veteran must show: ‘(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’ – the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) (2017). Presumptive service connection can be established based upon continuity of symptomatology for those chronic diseases set forth in 38 C.F.R. § 3.309(a). 38 C.F.R. §§ 3.307(a)(2)-(3), 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January1, 1947, and a chronic disorder becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303 (2017). A Veteran who, during active military, naval, or air service, served between January 9, 1962, and May 7, 1975, in the Republic of Vietnam, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that said veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii) (2017). VA regulations provide that the following diseases shall be service connected if the 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: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type II diabetes mellitus, Hodgkin’s disease, ischemic heart disease (to include coronary artery disease), all chronic B-cell leukemia, multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, certain respiratory cancers, and soft tissue sarcoma. 38 C.F.R. § 3.309(e) (2017). The Board must assess the credibility and weight of all of the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue.”). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2012); Gilbert, 1 Vet. App. at 49. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). 1. Entitlement to service connection for a lumbar spine disability, to include degenerative disc disease The Veteran’s February 1970 enlistment examination notes normal lumbar spine findings. In March 1970, while in service, the Veteran experienced a fall from a foot locker and hurt his back. There was evidence of back spasm, but no hematoma was noted. An x-ray of the thoracolumbar spine revealed a slight wedging at T12 on lateral projection. The radiologist noted that this slight wedging could be normal, but it could also represent a change secondary to injury. No further complaints of lumbar spine pain were noted throughout the Veteran’s service, and his back was found to be normal upon his September 1971 separation physical examination. The first post-service evidence of a thoracolumbar spine disability comes in September 1985, in which a private provider ordered an x-ray of the thoracic spine and prescribed Flexeril. The note orders returning to clinic with reports as soon as possible. No x-ray results or evidence of the requested reports are noted in the file. The next mention of a lumbar spine disability comes in December 2010, where the VA performed a magnetic resonance imaging scan on the Veteran’s lumbar spine. The Veteran’s lumbar spine was noted to have a straightening of the lumbar lordosis and multilevel degenerative disc disease, more prominent in the lower lumbar spine. In February 2011, the Veteran received a neurosurgery consultation with the VA medical center. He was noted to have displacement of lumbar intervertebral disc without myelopathy. The Veteran’s medical history reported that the Veteran had a work accident in 1986 and had had low back pain since that time. The Veteran informed the physician that for two months, his pain was not controlled by medication. Throughout 2011, the Veteran continued to receive treatment for lumbar spine pain. See VA Treatment Records, dated September 2011 and April 2011. In April 2011, the Veteran informed the VA treatment provider that his back pain began between 1985 and 1987. In August 2016, the Veteran received a VA examination to determine the etiology of his lumbar spine disability. The examiner endorsed that the Veteran had a diagnosis of lumbar spine degenerative disc disease. The examiner opined that it was less likely as not that his lumbar spine disability was incurred in or caused by an in-service injury, event, or illness. The examiner noted that there was evidence that the Veteran fell, experiencing low back pain, in March 1970 and assessed with muscle spasm, the x-ray performed at the time of the fall did not reveal a fracture. The Veteran next reported back pain in 1986, which, in the opinion of the examiner, demonstrated that the March 1970 injury was acute and transitory, and that it improved with proper treatment. The examiner went on to note that the Veteran’s lumbar spine disability is a chronic condition that tends to progressively worsen over time with the natural aging process or repetitive trauma, and, more likely than not, the Veteran’s lumbar spine disability was due to the natural process of aging. The examiner noted that, per medical literature, people do not develop degenerative disc disease or degenerative joint disease in a short period of service, but that it is a long-standing process more likely than not caused by age or predisposition to degenerative changes in the spine. Applying the above summarized law to these facts, the Veteran was diagnosed with lumbar spine degenerative disc disease via a magnetic resonance imaging scan in December 2010, and the Veteran fell from a foot locker in March 1970, while in service, injuring his lower back. The first two elements of the service connection framework are met. That said, the probative evidence of record is against a finding that the Veteran’s current disability is related to his active service. Notably, the August 2016 VA examiner opined that it was less likely than not that the Veteran’s lumbar spine degenerative disc disease was caused by the Veteran’s in-service event. Rather, the examiner opined that it was more likely that the Veteran’s lumbar spine degenerative disc disease was due to age or a predisposition to degenerative changes in the spine. The examiner is a licensed medical professional, competent to opine as to the etiology of the Veteran’s lumbar spine disability, and there is no evidence that he is not credible. The examiner based his opinion on both an in-person evaluation, including obtaining both subjective and objective evidence, and a review of the Veteran’s claim file. The examiner considered the specific in-service injury, in addition to subsequent injuries, and the medical history of record and provided a thorough, well-reasoned opinion based upon his expertise and medical literature. Moreover, the evidence of record is consistent with the opinion of the VA examiner, noting that the Veteran, himself, reported that his back pain began between 1985 and 1987, which coincides with a work accident that he reported to have caused back pain. See VA Treatment Records, dated April 2011 and February 2011. Therefore, the Board affords the VA examiner’s opinion great probative weight. The Board has considered that the Veteran’s service treatment records, in March 1970, included an x-ray that revealed a slight wedging at T12 that may represent a change secondary to injury. The Board also notes, however, that the physician stated that this could also be normal. The Board does not contest that an in-service event occurred. Moreover, the VA examiner addressed this injury and x-ray in the examination and still opined that it was more likely that the Veteran’s lumbar spine degenerative disc disease was due to aging process or genetic predisposition. There is no competent evidence in support of the Veteran’s contention that his current disability is related to his active service. With regard to the Veteran’s statement that he believes that his lumbar spine disability is causally related to the physical rigors of combat. See VA Form 9, dated June 2018. While the Veteran is competent to report his symptomatology, including when his symptoms began, and there is no evidence that he is not credible, he has not presented evidence that he has the necessary medical expertise to opine as to the etiology of his current lumbar spine disability. As such, his statements are afforded limited probative weight. Jandreau, 492 F.3d at 1372. The Board has considered presumptive service connection. Although arthritis is a chronic condition contemplated by 38 C.F.R. § 3.309(a), the Veteran’s degenerative disc disease was not diagnosed, via radiographic evidence, until December 2010, greater than 39 years after his separation from the Army. 38 C.F.R. §§ 3.307, 3.309(a) (2017). As such, presumptive service connection for the Veteran’s lumbar spine disability may not be awarded. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-57; 38 C.F.R. § 3.102 (2017). For these reasons, the claim is denied. 2. Entitlement to service connection for hypertension, to include as secondary to exposure to herbicidal agents For VA rating purposes, “hypertension” means that diastolic blood pressure is predominately 90 mm. or greater; “isolated systolic hypertension” means that the systolic blood pressure is predominately 160 mm. or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (2017). The Veteran’s service treatment records, including his February 1970 enlistment examination and his September 1971 separation examination, are silent for blood pressure measurements consistent with hypertension. The first mention in the medical evidence of a hypertension diagnosis comes in February 2011, when a VA neurosurgeon listed hypertension in the Veteran’s problem list. The Veteran continued to receive medical intervention for his elevated blood pressure. See VA Treatment Records, dated May 2011 and February 2011. The Veteran underwent a VA examination to determine the etiology of his hypertension in August 2016. The examiner confirmed the Veteran’s diagnosis of hypertension and noted three blood pressure readings consistent with hypertension, pursuant to VA rating purposes. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (2017). At the time of the VA examination, the Veteran was 64 years old. The Veteran told the examiner that he was first diagnosed with hypertension in 2002, by his private physician, and that he had received treatment for hypertension since that diagnosis. The VA examiner found that it was less likely as not that the Veteran’s hypertension was caused by the Veteran’s military service. The examiner supported her opinion by pointing to the length of time that elapsed between the Veteran’s separation from service and his reported initial diagnosis of hypertension, which the examiner equated to be 40 years based upon a diagnosis of 2012. The examiner also found it less likely than not that the Veteran’s exposure to herbicide agents in Vietnam was the cause of his hypertension. Applying the law to these facts, the Veteran does have a diagnosis of hypertension; the first prong of the service connection framework is met. However, there is no evidence that the Veteran presented with abnormal blood pressure measures, consistent with hypertension, while in-service, and there is no competent evidence of a direct link between his current disability and his active service. Service connection on a direct basis is therefore not warranted. With regard to the chronic disease presumption, while hypertension is a chronic illness considered for presumptive service connection by 38 C.F.R. § 3.309(a), the Veteran’s hypertension was not diagnosed within one year of separation. As such, the Veteran may not be awarded service connection for hypertension via presumptive service connection for chronic illness. The Board has considered the possibility of presumptive service connection for the Veteran’s hypertension being related to his exposure to herbicide agents. The Veteran served in the Republic of Vietnam, and his exposure to herbicide agents is presumed. However, hypertension is not covered by this presumption. In making its decision, the Board has considered the evidence of record and finds the VA examiner’s opinion, that the Veteran’s hypertension is less likely as not causally related to his service in the Army or to herbicide agent, is the most probative evidence for this claim. The examiner is a licensed medical professional, competent to opine as to the etiology of the Veteran’s hypertension, and there is no evidence that she is not credible. The examiner performed an in-person examination, and considered both objective and subjective reports. She reviewed the entirety of the claims file. Moreover, her findings are consistent with the evidence of record, in which there was greater than 30-year time between separation from the army and the Veteran’s reported hypertension diagnosis. As such, this opinion is afforded great probative weight. The Board has also considered the Veteran’s statement that he believes that his hypertension was caused by exposure to herbicide agents. The Veteran has not provided evidence that he possesses the necessary medical expertise to provide an etiological opinion concerning his hypertension. Jandreau, 492 F.3d at 1372. As such, the Board affords this statement no probative weight. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b) (2012); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-57; 38 C.F.R. § 3.102 (2017). For these reasons, the claim is denied. 3. Entitlement to service connection for esophageal adenocarcinoma, to include as secondary to exposure to herbicidal agents The Veteran’s service treatment records, including his February 1970 entrance examination and September 1971 separation physical, are silent for esophageal adenocarcinoma or symptoms consistent with that disability. The first appearance of an esophageal disability comes in May 2016, when the Veteran was seen by an internal medicine provider at the VA. The Veteran had been in a state of good health until three months prior when he developed a problem swallowing. He received an upper endoscopy from the gastrointestinal clinic which revealed a large mass of the esophageal lumen as well as several patches of mucosa suggestive of Barrett’s esophagitis. A computed tomography examination of the chest revealed a large irregular constrictive tumor of the distal thoracic esophagus. The radiologist found that it was difficult to determine whether the neoplasm originally arose from the stomach or from the distal esophagus extending into the stomach. The clinical findings were consistent with adenocarcinoma. The Veteran continues to be followed for signs of recurrence of the esophageal adenocarcinoma. The Veteran received treatment for esophageal adenocarcinoma and continues to receive follow up monitoring to determine whether any resurgence is present. The first criterion of the service connection framework is met. That said, there is no competent evidence that the Veteran had this disability in service or that his current disability is directly related to his service. Service connection on a direct basis is therefore not warranted. The Board has also considered the Veteran’s statements that his esophageal adenocarcinoma was caused by herbicide agent exposure. See VA Form 9, dated July 2017. While the Veteran served in the Republic of Vietnam, and exposure to herbicide agents is conceded, esophageal adenocarcinoma is not a disease considered for presumptive causation pursuant to exposure to herbicide agents. 38 C.F.R. §§ 3.307, 3.309(e) (2017). As such, the Veteran may not be awarded service connection for his esophageal adenocarcinoma via presumptive service connection due to exposure to herbicide agents. Id. The Veteran contends that his esophageal adenocarcinoma should be considered for service connection due to exposure to herbicidal agents. 38 C.F.R. §§ 3.307, 3.309 (2017). Specifically, the Veteran claims that his esophageal adenocarcinoma should be considered as a respiratory cancer. Esophageal cancer is not a respiratory cancer, as it does not pertain to the lung, bronchus, larynx, or trachea. 38 C.F.R. § 3.309(e) (2017). Moreover, the Veteran has not demonstrated evidence of medical expertise sufficient to render an opinion as to the etiology of his esophageal adenocarcinoma. Jandreau, 492 F.3d at 1372. As such, the Board assigns his statement no probative weight. In making this decision, the Board has afforded the greatest probative weight to the medical evidence of record. The medical evidence was provided by medical professionals, competent to perform measurement and diagnostic testing and interpretation thereof, and there is no evidence that they are not credible. Moreover, there is no evidence disputing their findings. The Board notes that the Veteran was not afforded a VA examination to determine the etiology of his esophageal adenocarcinoma. The VA must provide an examination when the evidence shows: (1) A current disability; (2) an in-service event, injury, or disease; (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for the VA to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). As fully addressed above, while the Veteran has a current disability, there is no evidence of an in-service event, injury, or disease. As such, a VA examination is not required, and the Board finds that VA’s duty to assist is met with this regard. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b) (2012); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-57; 38 C.F.R. § 3.102 (2017). For these reasons, the claim is denied. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. E. Trotter, Associate Counsel