Citation Nr: 1819007 Decision Date: 03/29/18 Archive Date: 04/05/18 DOCKET NO. 14-21 199 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for a left shoulder disability. 3. Entitlement to service connection for a perforated stomach and ulcer surgery. 4. Entitlement to service connection for cholecystitis and residuals of cholecystectomy. 5. Entitlement to service connection for residuals, status post nephrectomy. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD T.S.E., Counsel INTRODUCTION The Veteran served on active duty from August 1964 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In December 2015, the Board remanded the claims for additional development. FINDING OF FACT 1. The Veteran served in Vietnam during the Vietnam War and is presumed to have been exposed to herbicides such as Agent Orange. 2. The Veteran does not have has a right shoulder disability, a left shoulder disability, a perforated stomach and ulcer surgery, cholecystitis and residuals of cholecystectomy, or residuals, status post nephrectomy, that are related to his service, to include as a result of any exposures therein. CONCLUSION OF LAW A right shoulder disability, a left shoulder disability, a perforated stomach and ulcer surgery, cholecystitis and residuals of cholecystectomy, and residuals, status post nephrectomy, were not caused by the Veteran's service. 38 U.S.C. §§ 1110, 1116(f), 5107 (2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran asserts that he has a right shoulder disability, a left shoulder disability, a perforated stomach and ulcer surgery, cholecystitis and residuals of cholecystectomy, and residuals, status post nephrectomy, due to his service. He asserts that service connection is warranted based on his presumed exposure to Agent Orange during service in the Republic of Vietnam. He states that he has required the use of stool softeners for 40 years due to stomach issues. See Veteran's statement in support of claim (VA Form 21-4138), dated in May 2011. He has also asserted that he had relevant symptoms for all of the claimed disabilities during his active duty service. See Veteran's statement in support of claim (VA Form 21-4138), dated in June 2012. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of 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. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a), to include arthritis. See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. The statutory provision specifically covering Agent Orange is 38 U.S.C. § 1116. Under 38 U.S.C. § 1116 (f), a claimant, who, during active service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during that service. Disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309, will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; type 2 diabetes, non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; multiple myeloma, respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma. 38 C.F.R. § 3.309 (e). The Secretary of VA has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341 -46 (1994); see also Notice, 61 Fed. Reg. 41, 442-49 (1996). The Secretary has clarified that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32,395 -32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258 -21260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), does not preclude establishment of service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran's discharge (DD Form 214) shows that he served in the Army, and that his awards include the Vietnam Service Medal, and the Vietnam Campaign Medal. The Veteran's service treatment records do not show any treatment, complaints, or diagnoses involving the Veteran's shoulders, stomach, or kidneys. In January 1970, he was treated for a fall on ice, with a complaint of severe pain in the lumbar area, but no relevant complaints involving any of the claimed disabilities. The impression was low back contusion and strain. The Veteran's separation examination report, dated in March 1970, shows that his upper extremities, "spine, other musculoskeletal," and abdomen and viscera, were clinically evaluated as normal. The associated report of medical history shows that he specifically denied a history of stomach, liver or intestinal trouble, "painful or 'trick' shoulder or elbow," sugar or albumin in urine, arthritis or rheumatism, kidney stone or blood in urine, or frequent indigestion. There is a notation of "painful joints - broken leg (femur) 1958, prior to service." As for the post-service medical evidence, it includes VA progress notes, which show that beginning in December 2001, he was prescribed medication for knee and shoulder pain. An August 2004 bone imaging scan was normal. A November 2007 report notes a history of smoking 1 to 11/2 packs of cigarettes per day. A December 2008 report notes use of tobacco, one PPD (pack per day). He denied abdominal pain, nausea, vomiting, melena, or changes in bowel habits. He was advised to quit smoking. There was no relevant diagnosis. An October 2009 report notes a history of smoking tobacco, one pack per day, for 40 years, and that the Veteran stated that he did not want to quit. He refused a nicotine patch. The assessments included tobacco use disorder. Reports from the Spalding Regional Medical Center ("SRMC"), dated in July 2010, note that the Veteran was admitted for a one-day history of epigastric pain. He was noted to have a perforated duodenal ulcer, with other diagnoses that included kidney stone removal. It was noted that the Veteran smoked two packs of cigarettes per day. He underwent an exploratory laparoscopy. The operative findings were consistent with perforated duodenal ulcer. SRMC records show that in October 2010, the Veteran was readmitted with complaints of postprandial right upper quadrant pain, constant, associated with CT (computerized tomography) scan consistent with acute cholecystitis and ultrasound consistent with gallbladder intraluminal defect, possible stone, now presents for attempted laparoscopic cholecystectomy. The postoperative diagnosis was attempted laparoscopic cholecystectomy converted to open cholecystectomy with intraoperative cholangiogram. SRMC records show that the Veteran was readmitted and treated between November and December of 2010. He was noted to have a history of peptic ulcer disease, and hypertension. A colonoscopy showed a right colon lesion. He underwent a right hemicolectomy. The pre- and post-operative diagnoses were right colon cancer. A statement from J.C., M.D., dated in December 2010, shows the Dr. J.C. states that the Veteran has been under his care for the last year. He has received a right hemicolectomy for colon cancer, an open cholecystectomy for severe cholecystitis, and an emergency expiration for a perforated ulcer. He has had three separate operations for these conditions in the last year. VA progress notes, dated in February 2011, note a medical history that includes renal cell carcinoma, colon carcinoma, cholecystectomy, nephrolithiasis, osteoarthritis (with no joint specified), and tobacco use disorder. There is a notation of a history of smoking one pack per day for 40 years. The problem list notes disorders that include tobacco use disorder. The Veteran declined to stop using tobacco, stating that, "It's the only thing I enjoy." A VA progress note, dated in January 2014, shows that the Veteran reported a recent fall onto his left shoulder. He reported a history of arthritis in the shoulders. An April 2014 report notes complaints of right shoulder pain; reports dated in 2014 contain multiple notations of obesity. A statement from T.M., M.D., dated in December 2014, notes a problem list that includes chronic kidney disease (with one kidney removed), history of renal cell carcinoma with nephrectomy, acute or chronic renal failure, and "smoker." See also statement from B.L., M.D., dated in November 2010 (noting a history of radical nephrectomy with high grade renal cell carcinoma). Private treatment reports, dated in 2015, show that the Veteran was found to have a renal mass and uretal lesion in his left kidney, with a history of prior right nephrectomy for cancer. The reports note RCC (renal cell carcinoma), left kidney. In December 2015, the Board remanded the claims for additional development, to include affording the Veteran examinations, and obtaining etiological opinions. In July 2016, the requested examinations (shoulder and arm, gallbladder and pancreas, and stomach and duodenal conditions) were performed. This evidence shows that in each case, the examiner was the same VA physician, who indicated that the Veteran's VA e-folder (VBMS or Virtual VA) and CPRS (Computerized Patient Record System) records had been reviewed. The Veteran reported that his gallbladder had been removed because it was cancerous, and that his kidney, colon, and appendix were cancerous. He also gave a history of a perforated duodenal ulcer in 2011 with associated emergency surgery. With regard to the claim for a bilateral shoulder disability, the Veteran reported falling off of a tank in Germany and hurting his left shoulder. He denied further work-up or treatment for his left shoulder. He stated that he assumes that he injured his right shoulder at the same time. He reported having a history of smoking 1/2 a pack per day of cigarettes for 40 years until quitting in February 2015. An X-ray for the shoulders was noted to be unremarkable. The diagnoses were cholecystectomy (gallbladder, removal of) (with a date of diagnosis of 2011), perforated duodenal ulcer, status post surgery (with a date of diagnosis of 2010), and shoulder impingement syndrome. For each claimed disability, the VA physician concluded that that it was less likely than not that the claimed condition was incurred in, or caused by, the Veteran's service. She explained the following: the Veteran's service treatment records were negative for any gallbladder, stomach, or ulcer complaints. His March 1970 separation examination report was negative for any stomach or ulcer complaints. The Veteran developed a perforated duodenal ulcer in either July or September of 2010, abdominal pain, with nausea and vomiting, until October 2010, and renal cell carcinoma in October 2010. In each case, this was about 40 years after separation from service. With regard to the claim for a perforated stomach and ulcer surgery, he was taken to the emergency room for exploratory laparotomy. A duodenal ulcer is quite a common condition in the general population. Risk factors include H. pylori infection, NSAID (nonsteroidal anti-inflammatory drugs) use, and smoking. An H. pylori test result could not be located, however, the Veteran has an extensive cigarette smoking history since age 17, which is more likely the main cause of his duodenal ulcer. With regard to the claim for cholecystitis and residuals of cholecystectomy, he was taken to the emergency room with a diagnosis of acute cholecystitis, and had an open cholecystectomy. His gallbladder disease is due to gallbladder inflammation leading to abdominal pain, nausea, and vomiting. With regard to the claim for residuals, status post nephrectomy, renal cell carcinomas are the most common primary renal neoplasms. The incidence of renal cell carcinoma occurs mainly in patients when they're in their 60s to 80s. Established risk factors include smoking, hypertension, obesity, and occupational exposure to asbestos. Unfortunately, this Veteran has many of the risk factors including a long history of cigarette smoking (since age 17), hypertension, and overweight (BMI (body mass index)) of 29. He developed renal cell carcinoma in 2010, at the age of 65. He does not have objective radiographic evidence of asbestos exposure. With regard to the claims for a perforated stomach and ulcer surgery, cholecystitis and residuals of cholecystectomy, and residuals, status post nephrectomy, the examiner stated that current medical literature does not show a direct causational link between herbicide exposure and gallbladder disease, duodenal ulcer, or renal cell carcinoma. With regard to the claim for a bilateral shoulder disability, the Veteran did not complain of shoulder injury after his fall in January 1970. He denied shoulder pain upon separation from service. His post-service medical record is silent for treatment of should pain. On current examination, he has a limited range of motion bilaterally, due to impingement. His shoulder X-rays are negative for any pathology including DJD (degenerative joint disease). If the Veteran injured his shoulders in the service, the left shoulder X-ray should show some kind of pathology, including DJD, worse than the non-injured right shoulder. However, in this case, both his shoulders show the same amount of decreased range of motion, and his X-rays are unremarkable. Therefore, his bilateral shoulder impingement is less likely due to his reported fall in January 1970. The Board finds that the claims must be denied. With regard to the possibility of service connection on a direct basis, the Veteran was not treated for any relevant symptoms during service. There are no complaints, findings, or diagnoses of a shoulder, stomach, or kidney, disorder during service, nor was a shoulder, stomach, or kidney disorder shown upon separation from service. Therefore a chronic disorder is not shown during service. See 38 C.F.R. § 3.303 (a), (b). The earliest post-service medical evidence of any of the claimed conditions is dated no earlier than 2001 (i.e., evidence of medication for shoulder pain), which is approximately 30 years after separation from service. There is no competent opinion of record in support of any of the claims on a direct basis. In this regard, the July 2016 VA opinions weigh against the claims. These opinions are considered highly probative evidence against the claims, as the examiner indicated that the Veteran's VA e-folder had been reviewed, and as the opinions are accompanied by sufficiently detailed rationales. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); Neives- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In addition, the Veteran is not shown to have been diagnosed with a disorder listed at 38 C.F.R. § 3.309 (a), to include arthritis of either shoulder, and the U.S. Court of Appeals for the Federal Circuit has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic at 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). There is no evidence to show that the Veteran had arthritis of either shoulder within one year of separation from service. See 38 C.F.R. §§ 3.307, 3.309. Accordingly, the claims must be denied. The Veteran also argues that service connection is warranted based on his presumptive exposure to Agent Orange. Although the Veteran is shown to have served in Vietnam, and is therefore presumed to have been exposed to herbicides such as Agent Orange, the applicable law does not include any of the claimed conditions as a condition for which presumptive service connection may be granted. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). There is no competent and probative evidence of record to show that the Veteran has any of the claimed conditions due to exposure to Agent Orange, and the July 2016 VA examiner stated that she was unable to conclude that the Veteran's perforated stomach and ulcer surgery, cholecystitis and residuals of cholecystectomy, or residuals, status post nephrectomy, were caused by exposure to Agent Orange. Accordingly, service connection is not warranted on this basis. In reaching this decision, the Board has considered the following: A letter from B.L., M.D., dated in December 2015, shows indicates that he treated the Veteran, and that in January 2010, he underwent a right radical nephrectomy for renal cell carcinoma. Dr. B.L., states, "Ultimately, it is quite possible that the development of bilateral high grade clear cell renal cell carcinoma can be associated with exposure to Agent Orange." A letter from Dr. J.C., dated in January 2016, notes a history of bilateral high grade, clear cell renal cell carcinoma, which resulted in perforated viscus, and right colon cancer, that could have been associated with exposure to Agent Orange. At that point we did treat the patient for a perforated, duodenal ulcer, and in December 2010 the Veteran was treated for right colon cancer and a right hemicolectomy was performed. The Board finds that this evidence is insufficiently probative to warrant a grant of any of the claims. Neither one of these opinions are shown to have been based on a review of the Veteran's claims file, or any other detailed and reliable medical history. Prejean. Neither of these opinions cites to any inservice or post-service findings, or any studies in support. Neives-Rodriguez; Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Finally, the opinions are vague and speculative in their terms (i.e., "quite possible" and "could have been"). The U.S. Court of Appeals for Veterans Claims (Court) has held that that use of equivocal language such as "possible," or "possibility" makes a statement by an examiner speculative in nature. See Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus.). Current regulations provide that service connection may not be based on a resort to speculation or even remote possibility. See 38 C.F.R. § 3.102 (2017); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). As a lay person, the Veteran is competent to report what comes to him through his senses, but he lacks the medical training and expertise to provide a complex medical opinion as to the etiology of the claimed conditions. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In Jandreau, the Federal Circuit specifically determined that a lay person is not considered competent to testify when the issue was medically complex. As such, his opinion is insufficient to provide the requisite nexus. Although the Veteran has asserted that he has had symptoms related to all of the claimed disabilities during, and since, his service, there is no evidence of any relevant complaints, or findings, during service, and he denied having shoulder or stomach symptoms upon separation from service. Given the foregoing, the Veteran is found not to be an accurate historian as to his symptomatology. See Wilson v. Derwinski, 2 Vet. App. 16, 19-20 (1991); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (in determining whether documents submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant); Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). The Court has made it clear that lay evidence concerning continuity of symptoms after service is competent, regardless of the lack of contemporaneous medical evidence, only if it is credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Given the foregoing, the Board finds that the medical evidence outweighs the Veteran's contentions to the effect that he has the claimed conditions due to his service, to include as due to exposure to Agent Orange. Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997). As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Duties to Notify and Assist There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. § 5103A (c)(2). All records pertaining to the condition at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159 (c)(3)). In this case, the Veteran has not identified any such records, and it appears that all pertinent records have been obtained. To the extent that the Veteran has argued that service treatment records for his back injury in Germany may be missing, and that they may show a shoulder injury, he merely indicated that following his initial treatment, he was put on best rest for a week. See Veteran's appeal (VA Form 9), received in June 2014. There is no evidence of missing service treatment records; his service treatment records include reports from his unit during service in Germany, i.e., the 2nd Battalion, 68th Armor, Baumholder, Germany. In December 2015, the Board remanded these claims. The Board directed that the Veteran be requested to provide completed release forms with the names and addresses of medical care providers who have treated him for his shoulder disabilities, renal cancer, gallbladder surgery, and ulcer, to include Dr. L (Urology of Greater Atlanta), Spaulding Regional, and Griffin General Surgery, LLC. In February 2016, the Veteran was sent a duty-to-assist letter that was in compliance with the Board's remand. These records were subsequently obtained. The Board directed that the results of a VA shoulder X-ray ordered on December 5, 2001 be obtained, and that any relevant VA treatment records dated since August 2011 be obtained. Additional VA reports were subsequently obtained, however, in August 2016, the Appeals Management Center was notified by the Atlanta VA Medical Center that a December 2001 X-ray report for the Veteran could not be located. The Board directed that it be clarified whether or not the Veteran receives benefits from SSA due to disability, and the Veteran subsequently reported that he does not received SSA benefits due to disability. Finally, the Board directed that the Veteran be afforded examinations, and that etiological opinions be obtained. In July 2016, this was done. Given the foregoing, the Board finds that there has been substantial compliance with its remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Service connection for a right shoulder disability, a left shoulder disability, a perforated stomach and ulcer surgery, cholecystitis and residuals of cholecystectomy, and residuals, status post nephrectomy, is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs