Citation Nr: 20006063 Decision Date: 01/24/20 Archive Date: 01/24/20 DOCKET NO. 19-09 413 DATE: January 24, 2020 ORDER Entitlement to service connection for stomach cancer due to Agent Orange exposure is granted. FINDING OF FACT The most probative evidence of record establishes that the Veteran’s stomach cancer is etiologically linked to his in-service Agent Orange exposure. CONCLUSION OF LAW The criteria to establish service connection for stomach cancer due to Agent Orange exposure have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.309(e) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Army from June 1968 to June 1971. Entitlement to service connection for stomach cancer The Veteran seeks service connection for stomach cancer, which he asserts is due to Agent Orange exposure. The record reflects a current diagnosis for stomach cancer, and the Veteran’s in-service exposure to Agent Orange has also been established. Per VA regulations, there are listed conditions for which a positive association to Agent Orange exposure may be presumed. However, stomach cancer is not a presumptive condition for Agent Orange exposure. 38 C.F.R. § 3.309(e) lists the diseases covered by the regulation, and the list does not include stomach cancer. The Secretary of VA has determined that 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); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21,260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). As such, a positive association between Agent Orange and stomach cancer cannot be presumed. However, service connection may be established on a direct basis. See 38 C.F.R. § 3.303. As noted, a current diagnosis and in-service incurrence have been established. Thus, the remaining issue is a nexus opinion linking the Veteran’s stomach cancer to his in-service Agent Orange exposure. In addressing the issue of a nexus, the Board finds the October 2019 private opinion of a Dr. C.R. most probative of the issue. Dr. C.R. opined that Agent Orange “substantially or materially aided in [the Veteran’s] development of cancer.” In her reasoning, the doctor noted review of the Veteran’s record and history of his symptoms. Dr. C.R. also acknowledged that stomach cancer is not on the presumptive list for conditions due to Agent Orange exposure but indicated that there is literature that confirms that Agent Orange and dioxins are responsible for causing a multitude of cancers. The doctor noted the composition of toxins/chemicals in Agent Orange, to include TCDD, which she stated is commonly known as dioxin. She further noted that this dioxin contains benzene rings that are well known to be toxic to humans. In support of this assertion, she stated that the World Health Organization and other global agencies recognize dioxins and benzene as highly toxic substances. Dr. C.R. also noted the risk factors for stomach cancer. She indicated that the Veteran met the risk factors for old age, gender, remote history of smoking tobacco (1-2 packs a day for 10 years and quit in 1979) and a maternal grandfather with esophageal cancer. However, Dr. C.R. stated that it would be impossible to determine how much the Veteran’s age, gender, tobacco use and exposure to Agent Orange may have contributed to his development of stomach cancer. However, she stated that it is highly known that benzene rings are highly toxic in any form, as per the World Health Organization. She stated that it is also known that when dioxins enter the body, they last a long time due to their chemical stability and ability to be absorbed by fatty tissues where they are stored. She indicated that there are approximately 419 types of dioxin-related compounds and 30 are considered to have significant toxicity, with TCDD being the most toxic. In correspondence with her letter, Dr. C.R. also provided a medical article about stomach cancer, which addresses the risk factors and impact of TCDD as discussed in her letter. The Board finds this opinion highly probative. Dr. C.R. provided a medically explained rationale that includes consideration of the scientific makeup of Agent Orange and the impact those toxins have on the body. Additionally, Dr. C.R. provided medical literature in support of her rationale. The Board acknowledges the March 2019 VA opinion indicating that it is less likely than not that the Veteran’s stomach cancer is due to Agent Orange exposure. The Board notes that the VA opinion was provided in response to a private opinion submitted in October 2018 which states that, “This is to inform you that [the Veteran] is on treatment at our office for gastric cancer poorly differentiated adenocarcinoma with significant ring cell features. I believe Agent Orange is a possible cause of this cancer.” As this opinion was not adequate, VA sought a medical opinion. In response to the private opinion, the March 2019 examiner reasoned that there is inadequate or insufficient evidence to determine an association between stomach cancers and Agent Orange exposure. The VA examiner’s rationale was stated as follows: [R]egarding ‘stomach cancers’ there is ‘inadequate or insufficient evidence to determine an association... the available epidemiologic studies are of insufficient quality, consistency, or statistical power to permit a conclusion regarding the presence or absence of an association. For example, studies fail to control for confounding, have inadequate exposure assessment, or fail to address latency. There is inadequate or insufficient evidence to determine association between exposure to the chemicals of interest and the...health outcomes that were explicitly reviewed...” The Board notes that the VA examiner’s rationale in its entirety was provided as a direct quote, and the examiner cited to Neoplasms of the Esophagus and Stomach, Rutsgi, AK; In: Goldman-Cecil Medicine textbook 25th Ed. 2016. The examiner further indicated that this literature discusses the conditions that are predisposing to or associated with gastric cancer, and it is noted there is no mention of dioxins or other herbicide chemicals. However, the Board finds that the October 2019 medical explanation provided by Dr. C.R. does address and explain the relation of dioxins to gastric cancer. As the VA examiner’s rationale was based solely on the lack of such explanation, the Board finds that Dr. C.R.’s opinion adequately addresses any contentions raised by the March 2019 VA opinion. As such, the Board finds the opinion of Dr. C.R. most probative. Thus, in light of the most probative evidence, the Board finds that a nexus has been established between the Veteran’s stomach cancer and his in-service Agent Orange exposure. Accordingly, all criteria having been met, entitlement to service connection for stomach cancer as due to Agent Orange exposure is granted. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.