Citation Nr: 20006946 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 18-55 573 DATE: January 28, 2020 ORDER Entitlement to service connection for anemia is denied. Entitlement to service connection for artery stenosis is denied. REMANDED Entitlement to service connection for malignant neoplasm, oropharynx (claimed as cancer in tonsil) is remanded. Entitlement to service connection for lung cancer is remanded. Entitlement to service connection for cause of death is remanded. FINDINGS OF FACT The Veteran’s anemia and artery stenosis (bilateral carotid stenosis and celiac stenosis) were not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disabilities are is not otherwise etiologically related to an in-service injury or disease, to include herbicide agent exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for anemia have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for artery stenosis have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1966 to April 1970. He died in August 2016. The Appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) from August 2016 and May 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the RO determined that the Appellant met the basic eligibility for substitution and substituted her as the Appellant. The Board notes that additional evidence was associated with the record after the last adjudication of the issues on appeal by the Agency of Original Jurisdiction (AOJ). The Board notes that this evidence is not pertinent to the issues being decided herein. Therefore, the Board may review the evidence in the first instance. See 38 C.F.R. § 20.1304 (c). The representative was provided an opportunity to submit an Informal Hearing Presentation or other argument; but did not do so. The appeal is granted advanced on docket (AOD) status based on the Appellant’s age.   Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases (including primary anemia and all forms of valvular heart disease) will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection may also be granted for certain diseases based on presumed exposure to certain herbicide agents, even though there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. The presumptive provisions of 38 C.F.R. § 3.307 are specifically limited to enumerated chronic diseases listed in 38 C.F.R. § 3.309 (e). Even if a Veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide exposure, VA must also consider the claim on a direct service-connection basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 1. Entitlement to service connection for anemia 2. Entitlement to service connection for artery stenosis (to include bilateral carotid stenosis and celiac stenosis) The Appellant seeks service connection for anemia and for bilateral carotid stenosis and celiac stenosis, to include as due to herbicide agent exposure. For the reasons that follow, the Board finds entitlement to service connection is not warranted. The Veteran’s military personnel records indicate he served at Tuy Hoa Air Base in the Republic of Vietnam from May 1968 through May 1969. Therefore, the Veteran is presumed to have been exposed to an herbicide agent in service. A September 2015 private treatment record indicates a July 2010 diagnosis of chronic anemia. A March 2016 ischemic heart disease (IHD) disability benefits questionnaire completed by the Veteran’s physician indicates a current diagnosis of bilateral carotid artery stenosis. The physician noted the Veteran did not have IHD. Anemia and artery stenosis are not presumptive diseases under 38 C.F.R. § 3.309(e). However, the provisions for presumptive service connection do not preclude a claimant from establishing service connection with proof of actual direct causation, on the basis that in-service exposure to herbicide agents led to the development of the claimed disability after service. See Combee v. Brown, 34 F.3d at 1044. The Veteran’s service treatment records show no treatment or diagnoses of anemia or artery stenosis. The Veteran’s September 1965 and May 1970 reports of medical examination both reflect a normal clinical evaluation, to include of the heart and vascular system. The Veteran’s post-service treatment records do not indicate a diagnosis of anemia until July 2010, decades after his separation from active service and presumed exposure to herbicide agents in Vietnam. A June 2015 VA treatment record notes regular rate and rhythm without murmurs, gallops, or rubs regarding the cardiovascular system. A September 2015 private treatment record indicates significant stenosis of right carotid internal artery and a right carotid endarterectomy in January 2015. The Veteran’s post-service treatment records are otherwise silent regarding anemia and artery stenosis. In addition, the records do not contain any competent medical opinions relating the Veteran’s conditions to his service. Primary anemia, arteriosclerosis, cardiovascular-renal disease, and all forms of valvular heart disease, are presumptive chronic conditions under 38 C.F.R. § 3.309(a). However, neither primary anemia or artery stenosis were shown to be present in service or to have manifested to a compensable degree within the one-year presumptive period following the Veteran’s separation from service such that service incurrence may be presumed. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). As for service connection on a direct basis, the weight of the evidence is against a finding that the claimed disabilities had onset in service or are otherwise causally or etiologically related to service, including as a result of exposure to an herbicide agent. As indicated, the service records do not reflect findings or diagnoses of these conditions. The current evidentiary record does not include competent medical opinions or similar findings that relate the claimed disabilities to the Veteran’s military service, to include his exposure to herbicide agents therein. There is no duty in this case to provide a VA examination in support of the claim. See Waters v. Shinseki, 601 F.3d 1274, 1276-77 (2010); McClendon v. Nicholson, 20 Vet. App. 79 (2006). The Board recognizes that the Appellant believes the Veteran’s anemia and artery stenosis were related to an in-service injury, event, or disease. However, neither the Veteran nor the Appellant are competent to provide a nexus opinion regarding this issue. A determination as to the etiology of anemia and artery stenosis is medically complex, as it involves requires knowledge of the complex cardiovascular system, pathology, and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran and the Appellant because the record does not show that they have the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Therefore, the Board finds any such statements to have no probative value. The preponderance of the evidence weighs against finding that the Veteran’s anemia and artery stenosis began during service or are otherwise related to an in-service injury, event, or disease, to include herbicide agent exposure. Accordingly, the benefit of the doubt rule does not apply, and service connection is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for malignant neoplasm, oropharynx (claimed as cancer in tonsil) is remanded. Prior to his death, the Veteran asserted his oropharyngeal cancer was due to herbicide agent exposure during service in Vietnam. In August 2016, a VA physician determined the Veteran’s malignant neoplasm of the oropharynx was not a respiratory cancer such that it may be presumed to have been incurred as a result of his exposure to an herbicide agent in service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. The Board cannot make a fully-informed decision on the issue of oropharyngeal however, because no VA examiner has opined whether the Veteran’s oropharyngeal cancer is related to service on a direct basis. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In December 2018, the Appellant submitted a private opinion from the Veteran’s former physician of 15 years, Dr. N. In his opinion dated in November 2018, Dr N. opined that it is more likely than not that the Veteran’s active duty military service, and exposure to herbicide agents, is the cause of his metastatic tonsil cancer. An opinion regarding the nature and etiology of the Veteran’s oropharyngeal cancer should be obtained. See 38 U.S.C. § 5103 A(a); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). The medical records from Dr. N. should also be obtained. 2. Entitlement to service connection for lung cancer is remanded. 3. Entitlement to service connection for cause of death is remanded. The Veteran’s post-service treatment records suggest his oropharyngeal cancer metastasized to his lungs. See September 2015 private treatment record. Additionally, the Veteran’s death certificate notes his cause of death as metastatic tonsil cancer. Thus, because a decision on the remanded issue of serivce connection for malignant neoplasm of the oropharynx could significantly impact a decision on the issues of service connection for matastisized lung cancer and service connection for cause of death, the issues are inextricably intertwined; remand of the latter two issues is required. The matters are REMANDED for the following action: 1. Ask the Appellant to complete a VA Form 21-4142 for physician(s)/facility(ies) that treated the Veteran’s oropharyngeal cancer, to specifically include Dr. N. 2. Obtain an opinion by an appropriate clinician to determine the nature and etiology of the Veteran’s malignant neoplasm of the oropharynx. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including presumed in-service exposure to an herbicide agent. The clinician must also opine whether it at least as likely as not a malignant neoplasm of the oropharynx (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. In addressing these questions, the examiner should review the November 2018 opinion from Dr. N. and must also provide a complete rationale for all proffered opinions. (Continued on the next page)   If the requested opinions cannot be provided without resorting to speculation, the examiner should provide an explanation as to why speculation is required. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.Aoughsten, 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.