Citation Nr: 1815658 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 15-44 357 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for Barrett's disease, to include as due to herbicide exposure and as secondary to a stomach disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Becker, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Service connection for Barrett's disease was denied therein. The Veteran appealed this determination. Following receipt of the November 2015 statement of the case (SOC) last adjudicating this matter, additional pertinent evidence became available. Such evidence is to be reviewed initially by the agency of original jurisdiction (AOJ), which here is the RO, unless this right is waived or the benefit sought is allowed in full. 38 C.F.R. § 20.1304(c) (2017). Waiver is automatic when there is no written indication to the contrary for matters involving a substantive appeal received on or after February 2, 2013. 38 U.S.C. § 7105(e)(1) (2012). The substantive appeal concerning this matter was received in December 2015. As neither the Veteran nor his representative has provided a statement requesting initial review by the AOJ/RO, it is undertaken by the Board herein. Review of the claims file at this time reveals that Board adjudication can proceed without delay. Please note that this matter has been advanced on the Board's docket. 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). FINDING OF FACT The Veteran's current Barrett's disease is not related to his service, whether through his presumed herbicide exposure or otherwise, and it cannot be secondary to a stomach disability because none has been service-connected. CONCLUSION OF LAW The criteria for entitlement to service connection for Barrett's disease have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1153, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Preliminary Matters VA has a duty to notify a claimant seeking VA benefits. 38 U.S.C. § 5103; 38 C.F.R. § 3.159. Notice must be provided prior to initial adjudication of the evidence necessary to substantiate the benefit(s) sought, that VA will seek to obtain, and that the claimant should submit. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Notice of how ratings and effective dates are assigned also must be provided. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In addition to the duty to notify, VA has a duty to assist a claimant seeking VA benefits. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes, as suggested by the duty to notify, aiding the claimant in the procurement of relevant records whether they are in government custody or the custody of a private entity. 38 U.S.C. § 5103A(b-c); 38 C.F.R. § 3.159(c)(1-3). A VA medical examination also must be provided and/or a VA medical opinion procured when necessary for adjudication. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Full notification via a December 2012 letter was followed by initial adjudication in the August 2013 rating decision. Service personnel records, service treatment records, and VA treatment records are available. No private treatment records are available. None indeed have been submitted by the Veteran or his representative, and none have been identified so that they could be obtained by VA on his behalf. Finally, he has not had a VA medical examination or opinion. Such is necessary when there is: (1) evidence of a disability or of persistent or recurrent symptoms thereof , (2) evidence that an event, injury, or disease occurred during service or, for certain diseases, that it manifested during the applicable presumptive period after service, (3) an indication that the disability or persistent or recurrent symptoms thereof may be associated with service or a service-connected disability, and (4) insufficient medical evidence for adjudication. McLendon, 20 Vet. App. at 79. As discussed below, the Veteran has been diagnosed with Barrett's disease and is presumed to have had herbicide exposure during service. The first two of the aforementioned requirements thus are met. Concerning the third, a low threshold is established. Id. Medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits and credible evidence of continuity of symptomatology such as pain capable of lay observation satisfies it. Id. So does a relationship to an already service-connected disability. DeLisio v. Shinseki, 25 Vet. App. 45 (2011). Here, there is no medical evidence tending to show a nexus between the Veteran's Barrett's disease and his presumed exposure to herbicides during service. His representative's argument that there has been continuity of symptomatology since service is unsupported. He finally is not service-connected for any stomach disability. The only indication that the Veteran's Barrett's disease may be associated with his service, whether through his presumed herbicide exposure or otherwise, comes from his allegation and that of his representative of such. Conclusory generalized lay statements linking a disability to service do not satisfy the third requirement's threshold even though it is low, however. Waters v. Shinseki, 601 F.3d 1274 (Fed.Cir.2010). If such statements, standing alone without more, were enough to satisfy this threshold, then it indeed essentially would amount to no threshold at all. It would be meaningless, in other words. Interpretation of the statute such as 38 U.S.C. § 5103A that renders part of it superfluous is to be avoided. Splane v. West, 216 F.3d 1058 (Fed. Cir. 2000). In sum, the third requirement is not met. No analysis of the fourth requirement accordingly is needed. In any event, neither the Veteran nor his representative has raised any deficiencies as to the duty to notify or the duty to assist. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (the "obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments" that are not raised); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) (applying Scott to the duty to assist); Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (concerning the duty to notify). Only the most relevant evidence must be discussed in addressing the merits. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). As such, the discussion below is limited to this evidence and that required to address any contentions raised. Scott, 789 F.3d at 1375; Robinson v. Peake, 21 Vet. App. 545 (2008). II. The Merits Service connection means that the facts, shown by the evidence, establish that an injury or disease resulting in disability was incurred in service, or if preexisting service, was aggravated therein. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Direct service connection requires a current disability, the incurrence or aggravation of an injury or disease during service, and a nexus between them. Hickson v. West, 12 Vet. App. 247 (1999); Barr v. Nicholson, 21 Vet. App. 303 (2007). Direct service connection also may be established for any disease diagnosed after separation from service if it was incurred during service. 38 C.F.R. § 3.303(d). For chronic diseases, service connection may be established if there was manifestation during and after service absent an intercurrent cause. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology after service is required if the disease was noted but not chronic or if chronicity was questionable during service. Id.; Savage v. Gober, 10 Vet. App. 488 (1997). Service connection is presumed when a veteran served for 90 days or more during a period of war or after December 31, 1946, and the chronic disease manifested, whether or not it was diagnosed, to a compensable degree within the first year after service. 38 U.S.C. §§ 1112, 1113, 1153; 38 C.F.R. §§ 3.307, 3.309. There also is a rebuttable presumption of service connection for diseases associated with herbicide exposure. 38 U.S.C.A. §§ 1113, 1116; 38 C.F.R. §§ 3.307, 3.309. Exposure to herbicides during service is presumed for veterans stationed in the Republic of Vietnam between January 9, 1962, and May 7, 1975. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii); McCartt v. West, 12 Vet. App. 164 (1999). Manifestation of the disease to a compensable degree may be at any time after service, with a few exceptions when manifestation must be within the first year after the last date of exposure to herbicides during service. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6)(ii). Secondary service connection means that a nonservice-connected disability was incurred because of or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Aggravation means a permanent worsening beyond natural progression. Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292 (1991). The baseline level of the nonservice-connected disability pre-aggravation thus must be compared to the current level post-aggravation. 38 C.F.R. § 3.310 (b). Service-connected compensation may be paid only for the amount attributable to aggravation. Id.; Allen, 7 Vet. App. at 439. Here, the Veteran's VA treatment records reflect his diagnosis of Barrett's disease and show that it first was found in 1999 and was still present in 2013. As such, the disability qualifies as longstanding but also current. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (holding that a disability is current if preset near the time a claim is filed); McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that a disability is current if present at any time during a claim's pendency). Barrett's disease, or a similar condition, is not a chronic disease. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a). Further, neither Barrett's disease nor any similar condition is a disease associated with herbicide exposure. 38 U.S.C. § 1116(a)(2)(F); 38 C.F.R. § 3.309(e). Service connection therefore cannot be presumed, whether based on a chronic disease or a disease associated with herbicide exposure. Exposure to herbicides is still important, however, because service connection can be established on this basis directly. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (stating that the inapplicability of presumptive service connection "does not foreclose proof of direct service connection"). The Veteran's service personnel records convey that he was stationed in the Republic of Vietnam from May 1968 to May 1969. He therefore presumably had exposure to herbicides during service. His representative asserted in a February 2018 Informal Hearing Presentation (IHP) that the mechanism for this exposure was drinking or ingesting contaminated water. No analysis of this assertion is needed, other than to acknowledge that drinking or ingesting as well as other mechanisms of exposure such as inhalation and percutaneous or through the skin all are possible. The mechanism of herbicide exposure indeed is not of great import. With respect to the further assertion in the IHP that the Veteran has had stomach problems ever since drinking or ingesting contaminated water during service, it first is notable that Barrett's disease does not concern the stomach directly. Barrett's disease or esophagus "is a disorder in which the lining of the esophagus is damaged by stomach acid." See https://medlineplus.gov/ency/article/001143.htm. Not all stomach symptoms are relevant here, in other words. Service treatment records are silent with respect to complaints of or treatment for stomach symptoms in any event, other than one occasion when the Veteran was sick to his stomach and vomited. They also are silent for any esophageal condition. The Veteran was assessed as normal in all potentially relevant regards at his June 1967 pre-induction examination, a January 1968 periodic examination, and his May 1969 separation examination. He denied frequent indigestion at each. It is reiterated that Barrett's disease first was found in 1999 VA treatment records. More specifically, a September 1999 record includes the Veteran's report of heartburn for the previous year. This report carries significant probative weight because it was made for the purpose of treatment. Fed. R. Evid. 803 (4) (recognizing that statements made for the purpose of medical treatment generally are reliable); Rucker v. Brown, 10 Vet. App. 67 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons.")). Diagnostic testing performed in November 1999 then revealed the aforementioned condition. The Veteran was prescribed medication and advised to modify his lifestyle due to gastroesophageal reflux disease (GERD). There is no indication, in sum, of relevant stomach symptoms until approximately 1998. This is almost 30 years after the Veteran's separation from service. As such, the assertion of the Veteran's representative that the Veteran had stomach symptoms following herbicide exposure during service which have continued ever since is not supported by the evidence. Medical evidence in the form of service treatment records and VA treatment records indeed contradicts it. There also is no lay evidence confirming it. Despite submitting statements concerning claimed disabilities including Barrett's disease, the Veteran has never related having stomach problems since herbicide exposure during service. This prolonged period between his separation from service and first manifestation of relevant symptoms finally weighs significantly against his claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (indicating that a prolonged period without medical complaint can be considered, along with other factors, in adjudicating a claim). No relevant medical evidence other than the aforementioned exists. It follows that there is no medical evidence supporting a nexus between the Veteran's Barrett's disease and his service, whether through his presumed herbicide exposure or otherwise. Concerning lay evidence, the Veteran asserted his Barrett's disease was due to herbicide exposure when he filed his claim in June 2012. Yet in December 2012, he dropped this assertion. He made it again in December 2015. This wavering could signify that he does not firmly believe herbicide exposure caused his Barrett's disease. In any event, the Veteran is a lay person because there is no indication he has any medical background. A lay person sometimes can confirm a service nexus. Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010); Waters, 601 F.3d at 1274. Whether there is a nexus here falls outside the province of a lay person, however. Whether there is a nexus here rather is a medical question for several reasons. First, a host of etiologies or causes of Barrett's disease may be possible. Second, almost three decades passed before the Veteran noted relevant symptoms following his herbicide exposure during service. Almost another two decades have passed since then as well. Finally, the digestive system is complex. Only those with a medical background are competent where the determinative issue involves a medical question. Jones v. West, 12 Vet. App. 460 (1999). Simply put, the Veteran is not competent to answer the medical question of nexus here because doing so requires medical expertise that he lacks. He lastly has asserted that his Barrett's disease is secondary to a stomach disability. However, he is not service-connected for any such disability. Service connection for GERD, the only stomach disability he claimed, was denied. Secondary service connection therefore cannot be granted. In conclusion, the Board finds that service connection for the Veteran's current Barrett's disease cannot be presumed because it is not a chronic disease or a disease associated with herbicide exposure. The Board also finds that service connection has not been established on a direct or secondary basis. The preponderance of the evidence indeed is against the claim for all these theories of entitlement. As the evidence against service connection is not in approximate balance with the evidence for service connection, there is no benefit of the doubt to afford to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). His claim is denied. ORDER Service connection for Barrett's disease, to include as due to herbicide exposure and as secondary to a stomach disorder, is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs