Citation Nr: 1817647 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 14-24 997A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for germ cell cancer, to include as due to exposure to an herbicide agent. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD B. Whitelaw, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from May 1968 to May 1970, including in the Republic of Vietnam. Among other commendations, the Veteran was awarded the Combat Infantryman Badge for his honorable service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. FINDING OF FACT The Veteran's germ cell cancer did not arise during his active duty service and it is not etiologically related to his service, to include as due to his presumed exposure to an herbicide agent. CONCLUSION OF LAW The criteria for service connection for germ cell cancer have not been met. 38 U.S.C. §§ 101, 1110, 1112, 1131, 5103, 5103A (2012); 38 C.F.R. § 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection - Legal Standard Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection may also be awarded on a presumptive basis for veterans who were exposed to an herbicide agent during active service for certain diseases. 38 C.F.R. §§ 3.307, 3.309. The Board notes, however, that germ cell cancer is not identified in the regulations as a type of cancer that may be presumptively service connected due to exposure to an herbicide agent. II. Service Connection - Analysis At the outset, the Board finds that the Veteran has a current diagnosis of germ cell cancer, as confirmed by the January 2012 VA medical examination report. The Board also finds that the Veteran was likely exposed to an herbicide agent due to his active duty service in the Republic of Vietnam. The Board also recognizes that the Veteran has not contended that his germ cell cancer arose in active duty service and there is no competent or probative evidence of record indicating that the claimed condition was diagnosed during the Veteran's active duty service or is attributable to any circumstance of his service other than his exposure to an herbicide agent. As such, the Board will turn to the central question in this claim of whether or not the Veteran's germ cell cancer is etiologically related to his acknowledged exposure to an herbicide agent. As noted above, VA has determined that certain disabilities are presumptively caused by exposure to an herbicide agent and enumerated these conditions in 38 C.F.R. § 3.309(e). Included in this list are prostate cancer, respiratory cancers, and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). To determine whether the Veteran's germ cell cancer should be classified as a soft-tissue sarcoma, VA obtained an addendum medical opinion from a physician assistant in November 2012. After reviewing the January 2012 VA medical examination report, the Veteran's Veterans Health Administration (VHA) treatment records, and medical literature, the examiner ultimately concluded that it is less likely than not that the Veteran's type of cancer is a granular cell tumor and/or any type of cancer found under the presumptive list set forth in 38 C.F.R. § 3.309(e). As a physician assistant, this examiner is competent to delineate and describe the nature of the Veteran's particular type of cancer and the Board has no reason to doubt the credibility of this statement. As such, the Board finds it highly probative in determining whether the Veteran's cancer should be presumptively granted service connection in accordance with 38 C.F.R. §§ 3.307 and 3.309. The record does not contain any other competent and probative opinions suggesting that the Veteran's cancer should be characterized as one of the cancers identified in 38 C.F.R. § 3.309. Thus, the Board finds that the preponderance of the evidence of record weighs against a finding that the criteria have been met for presumptive service connection for the Veteran's germ cell cancer. Although the criteria for presumptive service connection have not been met, the Veteran has repeatedly contended that his exposure to Agent Orange directly led to his development of cancer. For instance, in his July 2014 VA Form 9, the Veteran reported that no one in his immediate family had cancer and that he was the only sibling in his family to serve in the armed forces. The Veteran also submitted a January 2015 buddy statement from a fellow service member in which the Veteran's colleague contended that the Veteran deserved compensation for cancer. The Board does not doubt the sincerity of the Veteran's belief or the intentions of the Veteran's fellow service member in the January 2015 buddy statement. However, the issue of whether there is any causal relationship between exposure to an herbicide agent, including Agent Orange, and the development of germ cell cancer is a medically complex question that requires significant medical knowledge, training, or experience. There is no evidence in the record that either the Veteran or his Army colleague has this required knowledge or experience that would allow them to provide a competent opinion under VA's regulations regarding this extremely complex medical question. See Jandreau, supra. As they are not competent to render an opinion regarding this issue, their statements are not probative in determining whether the Veteran's exposure to an herbicide agent has caused his germ cell cancer. The claims file also contains a medical opinion from Dr. J.M., the Veteran's treating physician. In that February 2015 statement, Dr. J.M. acknowledged that the Veteran's type of cancer is not identified in the presumptive list of cancers that are attributable to exposure to herbicide exposure in 38 C.F.R. § 3.309. However, Dr. J.M. stated that the Veteran's exposure to Agent Orange "could be as likely as not a cause of this cancer." In contrast to the Veteran, this clinician has significant medical knowledge, training, and experience and is competent to render a probative opinion regarding the relationship between the Veteran's exposure to an herbicide agent and his germ cell cancer. VA is statutorily permitted, but not required, to accept a report provided by a private physician as sufficient to grant claims in the absence of a VA examination if the opinion is sufficiently complete to be "adequate for the purpose of adjudicating the claim." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). However, the use of equivocal language such as "could" or "may have" can render an opinion speculative. See Bostain v. West, 11 Vet. App. 124, 127-128 (2006). To be adequate for the purposes of a service connection claim, an opinion may not be speculative in nature. See e.g., McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006); Bloom v. West, 12 Vet. App. 185, 187 (1999). Moreover, medical opinions must also contain not only clear conclusions, but also a reasoned medical explanation for the bases of these conclusions. See e.g., Nieves-Rodriguez, 22 Vet. App. at 301. Here, Dr. J. M. did not provide any supporting rationale or explanation for his statement that this exposure could be as likely as not a cause of the Veteran's post-service cancer. The Board ultimately finds that this equivocal and speculative opinion is not an adequate basis to support a finding that a medical nexus exists between the Veteran's germ cell cancer and his exposure to an herbicide agent. His opinion is therefore entitled to little probative weight. The Board has also considered an internet article that the Veteran submitted in January 2016 that includes a medical abstract regarding the effects of Agent Orange exposure. This 2003 article states that veterans' exposure to Agent Orange "also may increase their risk" for cancer and other associated diseases. Like Dr. J.M.'s opinion, the Board finds that this medical abstract also lacks any clear or non-equivocal statement that addresses the likelihood that the Veteran's exposure to an herbicide agent caused his specific type of cancer. Notably, this speculative report of a link between Agent Orange and cancer is not based on the Veteran's history and circumstances. As the abstract is general in nature and does not specifically relate to the facts and circumstances surrounding this particular case, the Board finds that it is of little probative value. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). However, the Board does find that the November 2012 VA addendum opinion is of significant probative value. Although the examiner who gave this opinion did not review the entire claims file, the sole question remaining before the Board is whether or not the Veteran's presumed exposure to an herbicide agent directly caused his germ cell cancer. As explained above, this November 2012 examiner reviewed the prior VA medical examination report in addition to pertinent medical literature and the Veteran's VHA treatment records. The examiner explained that the Veteran's extragonadal germ cell tumor originates outside of the testes and was treated with chemotherapy. The examiner also noted that the weight of the medical literature does not support that the Veteran's type of germ cell cancer is related to soft tissue sarcoma or any other type of cancer that is listed under the presumptive list of Agent Orange related conditions. He ultimately opined that the claimed cancer was less likely than not incurred in or caused by the claimed in-service exposure. In contrast to Dr. J.M., this examiner did provide a definitive statement regarding the likelihood of whether or not the Veteran's cancer was due to the claimed in-service event of exposure to an herbicide agent. This examiner also explained the course of treatment and nature of the Veteran's specific type of cancer and specifically noted that this cancer was not one that has been associated by VA with the types of cancers that are presumptively due to exposure to an herbicide agent. Accordingly, the Board finds that this reasoned opinion is entitled to significant probative weight. Given that this negative opinion is the most probative in determining whether the Veteran's herbicide agent exposure directly led to his germ cell cancer, the Board finds that the preponderance of the competent and probative evidence is against the Veteran's claim. The Board also has considered the Veteran's numerous requests that VA prove to him that his cancer was not caused by his exposure to Agent Orange. However, the law does not require that VA affirmatively and definitively rule out the Veteran's exposure to an herbicide agent as a potentially causative factor in his development of his cancer. Rather, the Board is tasked with weighing the competent and probative evidence of record that is for and against the claim. Here, the Board finds that the preponderance of this evidence is against the proposition that the Veteran's cancer arose in service, is among the cancers subject to presumptive service connection, or was directly caused by his exposure to an herbicide agent. Therefore, the criteria for service connection have not been met and the doctrine of the benefit of the doubt is not for application. III. VA's Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159(b). Here, the Veteran was provided with the required notice and information in a January 2012 letter prior to the initial adjudication of his claim. There have been no contentions that this notice is deficient in any way. As such, the Board is convinced that VA has satisfied its duty to notify. VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records and identified private treatment records have been obtained and associated with the claims file. The Veteran was also provided with a January 2012 VA medical examination and VA obtained a clarifying addendum opinion in November of that year. Taken together, this examination report and addendum opinion contain a description of the history of the Veteran's germ cell cancer; document and consider the relevant medical facts and principles; and provide an adequate opinion regarding the etiology of the Veteran's claimed condition. VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). ORDER Service connection for germ cell cancer is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs