Citation Nr: 20052980 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 18-35 032 DATE: August 10, 2020 ORDER Entitlement to service connection for residuals of duodenal cancer, to include as due to herbicide exposure and exposure to asbestos, is denied. REMANDED Entitlement to service connection for a gastrointestinal disorder, to include irritable bowel syndrome (IBS), is remanded. Entitlement to service connection for a respiratory disorder, to include as due to herbicide exposure and exposure to asbestos, is remanded. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. The Veteran is shown to have served in the Republic of Vietnam during his active service and exposure to herbicide agents is conceded. 2. The Veteran’s duodenal cancer did not originate in service, within a year of service, and is not otherwise etiologically related to the Veteran’s active service. CONCLUSION OF LAW The criteria for service connection for residuals of duodenal cancer have not been met. 38 U.S.C. §§ 1110, 1116, 1154, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1966 to February 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran requested that his claim be Advanced on the Docket (AOD) due to severe financial hardship. See June 2019 VA Form 21-4138 Statement in Support of Claim. Prior to the request, the Veteran’s wife submitted a letter, which was received in October 2018, stating that she had to stop working in April 2015 so she could drive the Veteran to doctors’ appointments. See October 2018 Buddy/Lay Statement. Appeals must be considered in docket number order but may be advanced if sufficient cause is shown. See 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). Sufficient cause includes advanced age (defined as 75 years or more), serious illness, severe financial hardship, or administrative error resulting in a significant delay. Any motion for AOD should be supported by pertinent documentation. Here, the Board finds that the Veteran’s wife’s report that she had to quit her job to drive the Veteran to doctors’ appointments does not rise to the level of severe financial hardship contemplated by the regulation. Thus, the motion for AOD is denied. 38 C.F.R. § 20.900(c). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.307, 3.309(a). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for residuals of duodenal cancer, to include as due to herbicide exposure and exposure to asbestos, is denied. In an August 2016 statement, the Veteran reported that he developed duodenal cancer due to herbicide exposure during service. In addition, the Veteran stated that his duodenal cancer may be related to exposure to asbestos during service. Specifically, the Veteran reported that he slept directly below asbestos while he was stationed on the USS Guam, LPH-9, from 1967 to 1969, and took multiple trips on helicopters during service. See August 2016 Correspondence; December 2017 VA Form 21-4138 Statement in Support of Claim. The Veteran’s service treatment records (STRs) are silent for any findings or diagnoses related to his stomach, pancreas, or intestines, to include duodenal cancer. See January 2013 STR – Medical. A review of the military personnel records (MPRs) reveals that the Veteran served in the Republic of Vietnam from August 1969 through January 1970, and a sea and air travel embarkation slip shows that the Veteran was stationed aboard the USS Guam, LPH-9, from January to March 1968 and in February 1969 and March 1969. In addition, the Veteran’s DD-214 shows that his military occupational specialty (MOS) was helicopter mechanic, and he received the Vietnam Service Medal and Vietnam Campaign Medal. See December 2017 Certificate of Release or Discharge from Active Duty; December 2017 Military Personnel Record. A review of the post-service treatment records shows that the Veteran was diagnosed with a focal intramucosal adenocarcinoma, moderately differentiated, arising in a seven centimeter villous adenoma with extensive high grade dysplasia and that he underwent a pancreas and duodenum pancreaticoduodenectomy (Whipple resection) in October 2013. See December 2013 Medical Treatment Record – Non-Government Facility. The Veteran was afforded a VA examination for stomach and duodenal conditions in February 2018. The examiner diagnosed the Veteran with periumbilical abdominal pain and irregular bowel habits. To this end, the examiner noted that the Veteran’s duodenum cancer symptoms manifested in October 2013, but stated that he had been experiencing intermittent abdominal cramping and irregular bowel movements for six months. During the examination, the Veteran endorsed intermittent mid-abdominal cramping, irregular bowel movements alternating between diarrhea and constipation, and occasional bloody stool. In addition, the examiner performed a complete blood count test, which was found to be consistent with mild normochromic, normocytic anemia. After conducting the examination and reviewing the Veteran’s claims file, the examiner opined that the Veteran’s duodenal cancer was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of the opinion, the examiner stated that the Veteran’s current symptoms were secondary to his IBS, which while not caused by the Veteran’s service, was likely exacerbated or aggravated by his duties in service. The examiner further stated that since the Veteran’s duodenum cancer was resolved, the Veteran’s current symptoms were less likely than not incurred during or caused by asbestos exposure during his active duty service. VA obtained an addendum opinion in April 2018. The examiner opined that it was less likely than not that the Veteran’s duodenum cancer was incurred in or caused by exposure to asbestos during service. In support of the opinion, the examiner stated that there was no evidence, to his knowledge, that asbestos exposure causes or can cause duodenal cancer. See April 2018 C&P examination. After a review of the evidence of record, the Board finds that service connection for residuals of duodenal cancer, to include as due to herbicide exposure and exposure to asbestos, is not warranted. Initially, the Board notes that the Veteran has not argued, and the evidence does not show, that the Veteran’s diagnosed duodenal cancer began in service or proximately thereafter. In this regard, the record reflects that his service treatment records were absent for findings related to duodenal cancer and the Veteran was initially diagnosed with duodenal cancer some 43-years post-service. Specifically, the Veteran’s private medical record show that he was diagnosed with a focal intramucosal adenocarcinoma in October 2013, following biopsies of adenomas found in his duodenum and rectum. See December 2013 Medical Treatment Record – Non-Government Facility. Accordingly, the Board finds that there is no in-service incurrence. Moreover, the Board finds that presumptive service connection is also not warranted for the Veteran’s duodenal cancer as the condition was not diagnosed in-service or within one-year following active duty service. Turning to the Veteran’s assertion of in-service exposure to herbicides, veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. §§ 1116; 38 C.F.R. § 3.307. In this regard, the Veteran’s service personnel records show that the Veteran was involved in counterinsurgency operations in the Republic of Vietnam from August 1969 to January 1970, and exposure to herbicide agents is therefore conceded. See December 2017 Military Personnel Record. Service incurrence for certain diseases will be presumed on the basis of an association with certain herbicide agents (e.g., Agent Orange). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). However, the Board notes that duodenal cancer is not one of the enumerated presumptive conditions. In this regard, VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341 -346 (1994); see also 61 Fed. Reg. 57586 -57589 (1996). Notwithstanding the presumption, service connection for a disability claimed as due to exposure to herbicides may be established by showing that a disorder resulting in disability was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. § 1113(b) and 1116 and 38 C.F.R. § 3.303. The Board acknowledges that the medical opinions of record do not address whether the Veteran’s duodenal cancer is etiologically related to herbicide exposure during service. However, the Board finds that there is no competent evidence showing that the Veteran’s duodenal cancer may be related to exposure to herbicide agents during service. As such, the Board finds that the Veteran’s claim does not meet the low threshold requirements of McLendon, and therefore the VA’s duty to provide an examination has not been triggered. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (explaining that something more than conclusory, generalized statements is needed to trigger the VA’s duty to assist); Duenas v. Principi, 18 Vet. App. 512, 517 (2004). The Board has also considered the Veteran’s assertion that his duodenal cancer was caused by exposure to asbestos during service. The Veteran’s SPRs confirm that he was aboard the USS Guam, LPH-9, and served as a helicopter mechanic. See December 2017 Military Personnel Record; December 2017 Certificate of Release or Discharge from Active Duty. It appears that the RO conceded exposure to asbestos, as the April 2018 opinion was requested. As to whether the Veteran’s duodenal cancer is related to service, the Board finds the April 2018 medical opinion, when considered in conjunction with the February 2018 VA examination report, to be the most probative evidence of record. After reviewing the evidence of record and conducting an examination, the examiner opined that it was less likely than not that the Veteran’s duodenum cancer was incurred in or caused by exposure to asbestos during active duty service. In support of their opinion, the examiner stated that there was no evidence, to their knowledge, that asbestos exposure caused or could cause duodenal cancer. See April 2018 C&P examination. The Board finds that the April 2018 VA opinion is probative, as it is factually supported, consistent with the other evidence of record, and included review of the claims file. This medical evidence is competent, credible and persuasive, as it is based on accurate facts and supported by a rationale based on medical principles. Importantly, the opinion is not contradicted by any medical evidence of record. The Board has considered the Veteran’s statements that his duodenal cancer was caused by exposure to herbicide agents and/or asbestos during service. However, the question of whether such a relationship exists is a complex medical issue that is far beyond the purview of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007) (providing that the question of whether lay evidence is competent and sufficient is an issue of fact that is to be addressed by the Board); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting that personal knowledge is “that which comes to the witness through the use of his senses-that which is heard, felt, seen, smelled, or tasted”). Thus, the Board concludes that the Veteran’s lay assertions are outweighed by the medical evidence of record, to include the April 2018 VA medical opinion and the cumulative VA medical records. As noted above, the examiner has training, knowledge, and expertise on which he relied to form his opinion and provided a persuasive rationale. Accordingly, the Board finds that the third Shedden requirement has not been met. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit-of-the-doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection for duodenal cancer. The claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). REASONS FOR REMAND 2. Entitlement to service connection for a gastrointestinal disorder, to include IBS, is remanded. As noted above, the Veteran underwent a VA examination for stomach and duodenal conditions in February 2018. Following the examination, the examiner stated that the Veteran’s symptoms, to include periumbilical abdominal pain and irregular bowel habits, were secondary to his IBS, which although not caused by service, was likely exacerbated or aggravated by his duties during service. See April 2018 C&P examination. Accordingly, the Board finds that a secondary service connection claim has been raised by the record. Based on the foregoing, the Board finds that a remand is necessary to obtain an VA examination and medical opinion to determine the nature and etiology of the Veteran’s current gastrointestinal disorder. 3. Entitlement to service connection for a respiratory disorder, to include as due to herbicide exposure and exposure to asbestos, is remanded. In a December 2017 statement, the Veteran reported that his current respiratory disorder was caused by exposure to asbestos during service. Specifically, the Veteran reported that he slept directly below asbestos while he was stationed on the USS Guam, LPH-9, from 1967 to 1969, and took multiple trips on helicopters during service. See August 2016 Correspondence; December 2017 VA Form 21-4138 Statement in Support of Claim. In addition, the Veteran stated that his respiratory disorder may be related to herbicide exposure during service. See August 2016 Correspondence; July 2017 Congressionals. A review of the STRs shows a December 1965 enlistment report of medical examination that notes the Veteran’s lungs and chest to be normal and the Veteran denied asthma, shortness of breath, and chronic cough on the corresponding report of medical history. In December 1969, the Veteran reported a runny nose, sore throat, and cough. The impression was upper respiratory infection. A follow-up appointment dated six days later, shows that the Veteran continued to report nasal drainage, sore throat, and a slight cough. On examination, the Veteran was noted to have a slightly reddened throat, and the examiner affirmed the previous diagnosis of an upper respiratory infection. Thereafter, the February 1970 separation report of medical examination notes the Veteran’s lungs and chest to be normal. See January 2013 STR – Medical. As noted above, herbicide exposure has been conceded. Further, the RO appears to have conceded asbestos exposure. A review of the post-service treatment records shows that the Veteran underwent a chest CT in February 2013, which revealed bilateral calcifications compatible with asbestos exposure and a three millimeter noncalcified pulmonary nodule. See April 2013 C&P examination. During an April 2013 pulmonary consultation, the Veteran reported a chronic cough productive of white-yellow sputum. He described the cough as deep and stated that it had been recurring annually for approximately 15 years. The Veteran also endorsed chronic sinus drainage. On examination, the examiner noted that the Veteran “sniffled” continually and had an occasional “upper airway” type of cough. The examiner noted enlarged turbinates and narrowed air passages in the Veteran’s nose, but stated that he “could not talk [himself] into the presence of polyps.” The impression included asthma, asbestos exposure, and chronic sinus congestion. See April 2018 C&P examination. VA obtained a medical opinion to determine the etiology of the Veteran’s claimed respiratory disability in November 2014. After reviewing the Veteran’s claims file, the examiner opined that it was less likely than not that the Veteran’s respiratory disorder was incurred in or caused by an in-service event, injury, or illness. In support of his opinion, the examiner noted that the Veteran’s enlistment and separation examinations were normal, and that he sought treatment for cold symptoms twice during service and he received conservative treatment. As such, the examiner found that the Veteran’s cold symptoms were not chronic. The examiner further noted that a February 2013 chest CT revealed evidence of bilateral pleural plaques and that, in April 2013, a VA pulmonologist diagnosed the Veteran with possible asthma and asbestos exposure. However, the examiner noted that a 2012 pulmonary function test (PFT) did not show evidence of an obstructive condition. Accordingly, the examiner stated that the Veteran’s lung condition did not occur in and was not caused by the Veteran’s active duty service. See November 2014 C&P examination. The Veteran underwent a VA examination for respiratory disorders in January 2018. The examiner noted that the Veteran had been diagnosed with asthma. During the examination, the Veteran reported that he began experiencing shortness of breath in the 1980s but denied using an inhaler. The examiner further noted that the Veteran had not had any asthma attacks with episodes of respiratory failure during the preceding twelve months or required care for exacerbations. Following the examination, the examiner stated that the Veteran’s asthma was historical in record only. To this end, the examiner stated that there was no evidence that the Veteran had a respiratory disability on the day of the examination and noted that his PFT was normal. After conducting the examination and reviewing the Veteran’s claims file, the examiner opined that it was less likely than not that the Veteran’s respiratory disability was incurred in or caused by an in-service injury, event, or illness. In support of her opinion, the examiner stated that there was no objective evidence that the Veteran was exposed to asbestos or that he had an asbestos related disability. The examiner further noted that the Veteran’s PFTs were normal and that she was unable to confirm any lung condition on the day of the Veteran’s examination. See January 2018 C&P examination. The Board finds that the January 2018 VA examiner incorrectly determined that there was no objective evidence that the Veteran was exposed to asbestos during service. To this end, for the reasons noted above, the RO has conceded that the Veteran was likely exposed to asbestos during service. Thus, the Board finds that the January 2018 VA opinion is inadequate to determine the claim because it is based, at least in part, on a factual error and does not provide adequate rationale for the opinion that the Veteran does not have a current respiratory disability. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board further notes that there are no other VA respiratory examinations of record and that the November 2014 VA opinion did not address whether the Veteran’s respiratory disorder was etiologically related to his in-service asbestos exposure. VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Thus, the Board finds that a remand is necessary to obtain a VA examination and opinion to determine the nature and etiology of the Veteran’s respiratory disorder. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board’s duty to return inadequate examination report). 4. Entitlement to an initial rating in excess of 30 percent for PTSD is remanded. The Veteran last underwent a VA examination for PTSD in October 2014. The examiner noted that the Veteran had been diagnosed with chronic PTSD, which was manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. During the examination, the Veteran reported that he lived with his wife of more than 45 years and stated that he maintained a close relationship with his brother and sister and got along well with his four children. He also stated that he enjoyed playing slot machines with his wife and going out to dinner. The VA examiner also noted the following symptoms: depressed mood; anxiety; chronic sleep impairment; and mild memory loss, such as forgetting names, directions, or recent events. The Veteran also reported nightmares, difficulty staying asleep, lingering dreams, chronic headaches, irritability, memory intrusions, excessive crying, muscle tension, lack of energy, fatigue, and excessive guilt. The Veteran also endorsed thoughts of death and stated that he wanted to “take his life so [he could] take away the pain of what [he did],” but he denied any past suicide attempts or gestures. The examiner did not find of evidence mania, lethality, psychosis, or panic. See October 2014 C&P examination. An October 2016 telephone encounter note shows that the Veteran’s wife contacted VA after the Veteran left his house in a rage. The examiner noted that the Veteran had threatened to obtain a firearm several weeks earlier and advised a VA employee to call the police if she felt threatened. The next day, the Veteran reported that he lost services from his senator due to his outbursts over the phone and reported that his wife was not speaking to him. The Veteran also endorsed agitation and requested help but denied any suicidal or homicidal ideation. In a September 2018 letter, the Veteran’s psychotherapist, P. H. Brown, stated that the Veteran’s chronic PTSD symptoms included anger, hypervigilance, insomnia, nightmares, avoidance, isolation, patrolling at night, and depression. Ms. Brown further reported that the Veteran’s hypervigilance and anger had increased over the preceding years due to his worsening cardiac issues. She also stated that the worsening of PTSD symptoms was common in combat Veterans as they age and as their health begins to deteriorate. See October 2018 Medical Treatment Record – Government Facility. Evidence of a change in the condition or allegation of worsening of the condition renders an examination inadequate for rating purposes. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007); see also Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Given the Veteran’s assertion that his PTSD has worsened since his last VA examination, and recently added medical records evidencing that his condition had worsened, a remand is warranted for a new VA examination. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA and private treatment records from the Veteran not already associated with the claims file. 2. After completion of the above development, schedule the Veteran for a VA examination by an appropriately qualified examiner to determine the nature and etiology of his current gastrointestinal disorder. The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran has IBS or another gastrointestinal disorder(s) that was caused by or began during his service? Please explain why or why not. (b) Is it at least as likely as not that the Veteran has IBS or another gastrointestinal disorder(s) that was (i) caused by or (ii) aggravated by a service-connected disorder or medication taken therefore? Please explain why or why not. The examiner should review the Veteran’s claims file in connection with the examination. The examiner should specifically consider the February 2018 VA medical opinion. 3. After completion of the development in #1, schedule the Veteran for a VA examination by an appropriately qualified examiner to determine the nature and etiology of his claimed respiratory disorder. The examiner should provide the following opinions: (a.) Identify all respiratory disorders found to be present since one year prior to the April 2013 claim, and specifically indicate whether the Veteran has an asbestos-related respiratory disorder. (b.) For each diagnosed respiratory disorder, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that such disorder is etiologically related to the Veteran’s active service. The clinician is advised that exposure to asbestos and herbicide agents, to include Agent Orange, is conceded. The examiner should review the Veteran’s claims file in connection with the examination. A complete rationale for all opinions rendered is requested. 4. After completion of the development in #1, schedule the Veteran for a VA PTSD examination. The examiner should describe the nature and extent of the Veteran’s service-connected PTSD. The examiner should also provide information concerning any functional impairment that results from the service-connected PTSD that may affect his ability to function and perform tasks in a work setting. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Justis, Attorney-Advisor 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.