Citation Nr: 20060463 Decision Date: 09/15/20 Archive Date: 09/15/20 DOCKET NO. 16-54 792 DATE: September 15, 2020 ORDER Entitlement to service connection for esophageal cancer is denied. FINDING OF FACT The preponderance of the evidence is against finding that esophageal cancer began during active service, or is otherwise related to an in-service injury or disease, to include in-service exposure to Agent Orange. CONCLUSION OF LAW The criteria for service connection for esophageal cancer have not been met. 38 U.S.C. §§ 1110, 5121; 38 C.F.R. §§ 3.303, 3.07, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1968 to October 1969, with service in the Republic of Vietnam. During the pendency of this appeal, the Veteran died. The appellant is his surviving spouse and has been substituted for the Veteran in this appeal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a February 2019 decision, the Board denied the claim. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (the Court). Pursuant to a September 2019 Joint Motion for Remand (JMR), the Court vacated the Board’s February 2019 decision and remanded the case for further development in compliance with the directives specified in the JMR. The Board remanded the appeal for additional development in April 2020. Entitlement to service connection for esophageal cancer is denied. The Veteran’s esophageal cancer is alleged to have been caused by his exposure to Agent Orange in Vietnam. In the initial July 2016 claim, the Veteran asserted that his esophageal cancer was related to Agent Orange exposure in service. In August 2016 correspondence, the Veteran indicated that he was exposed to herbicide agents and toxic chemicals through the food and water he consumed during his service in Vietnam. The Veteran further posited that the herbicide agents went through his esophagus into his stomach, resulting in his cancer. The Veteran denied continued use of alcohol, tobacco, or agents recognized to significantly increase the risk of developing the disease, to include other carcinogenic exposure in an October 2016 notice of disagreement. 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). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted on a presumptive basis for enumerated diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. The Veteran had service in the Republic of Vietnam during the appropriate period, and his exposure to herbicide agents is conceded. It also undisputed that the Veteran had a diagnosis of esophageal cancer. See April 2016 VA treatment records. Unfortunately, esophageal cancer is not listed as a condition that is presumed to be the result of exposure to herbicide agents. 38 C.F.R. § 3.309 (e). The Board is bound by law on this matter and is without authority to grant service connection on a presumptive basis. Nevertheless, when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must be reviewed to determine whether service connection can be established on another basis. Combee v. Brown, 34 F. 3d. 1039 (Fed. Cir. 1994). Accordingly, the Board will also consider whether service connection is warranted based upon exposure to herbicide agents without the presumption or if the condition is otherwise related to his period of active service on a direct basis. Service treatment records are silent regarding any complaints, diagnosis, or treatment for esophageal cancer. Nor is there medical evidence of such diseases within one year of separation from active service. Rather, post-service treatment records show a diagnosis of esophageal cancer many decades after service. In April 2016 VA oncology consult, the Veteran was noted to have initially come in 6 to 8 weeks prior for chest pain, dysphagia and eventually, abnormal weight loss. Testing revealed a nodular ulcerated friable lesion in the distal esophagus with biopsy from this mass showing invasive adenocarcinoma poorly differentiated with large areas of tumor necrosis. In addition, medical records provide inconsistent reports regarding the Veteran’s smoking history. In support of his claim, the Veteran submitted an August 2016 letter from a thoracic surgeon, Dr. W. The letter indicated that the Veteran’s esophageal cancer at that time had been present for more than one year, though the surgeon could not determine precisely how long. In doing so, the surgeon noted that such an advanced malignancy takes time to grow. Dr. W. did not offer an opinion as to the etiology of the Veteran’s cancer. In October 2016 a VA examiner opined the Veteran’s esophageal cancer was less likely as not caused by the Agent Orange exposure during service. The examiner supported her opinion with rationale; however, the September 2019 JMR noted that the October 2016 opinion report was inadequate as it was internally inconsistent as to the Veteran’s smoking history, noting both a less than 10 pack year smoking history and a 10 pack year smoking history. Pursuant to the Board’s February 2019 Remand, VA obtained an addendum opinion in April 2020. This examiner undertook an exhaustive review of the medical literature and evidence of record. The examiner concluded that the Veteran’s esophageal cancer was less likely than not related to his Agent Orange exposure in service. The examiner provided a lengthy and cogent rationale for her opinion which, for sake of brevity, will not be duplicated in full in this decision. In summary, the examiner explained that she reviewed several studies describing risk factors associated with esophageal adenocarcinoma. The examiner explained that there are several risk factors and potential etiologies of this Veteran’s esophageal cancer. In brief, she explained that several studies estimated that a history of smoking, a body mass index higher than the lowest quartile, gastroesophageal reflux disease, and a diet that was low in fruits and vegetables accounted for a majority of cases of esophageal adenocarcinoma. Although reflux was the strongest individual risk factor, some of the data suggest that interactions between risk factors may be more important than individual risk factors. Overall risk was substantially associated with gene-environment interactions (smoking, body mass index, and genetic polymorphisms in five apoptotic genes) with age modifying other risk factors. For this Veteran's type of esophageal cancer, however, the examiner opined that smoking, body mass index (BMI), and genetic polymorphisms are still the most suggestive risk factors. As to the Veteran’s smoking history, the examiner indicated that it impossible to reconcile his smoking history accurately because his record reflects an inconsistent history. She further indicated, however, that the extent of the Veteran’s smoking history was not a dispositive point- explaining that review of literature did not flag the extent of smoking as a risk factor. The examiner explained that this information would have to be extrapolated from each study and then statistics applied to that data and she provided a brief explanation that identified several studies to support this. Significantly, the examiner noted that for this Veteran's type of cancer- there was no clear reduction in risk after smoking cessation. The examiner concluded that while it is impossible to reconcile the exact cause of this Veteran's type of esophageal cancer; the question concerning Agent Orange exposure can be answered in a setting of legal probability (i.e. at least as likely as not). She opined that it is less likely than not that this Veteran's esophageal cancer is related to service as a result of herbicide agent exposure. The examiner indicated further that since this Veteran's death, there has been an extensive review of literature concerning the effects of Agent Orange and cancer. She noted that the Academy of Science has experts who review and comment on the literature and this panel of experts are unbiased in their reviews. She also provided a synopsis of the studies, findings, and conclusion from the National Academies of Sciences, Engineering, and Medicine (NAS) 2018 Report on Veterans and Agent Orange regarding whether an association exists between exposure to the chemicals of interest (i.e. herbicide agents) and esophageal cancer. The Board finds the April 2020 opinion to be highly probative because the VA examiner has the appropriate training, expertise and knowledge to evaluate the claimed disability. The examiner noted in her report that she had reviewed the file, including the Veteran’s reported experiences in service and exposure to herbicide agents in service. She indicated that she has extensive expertise on Agent Orange exposures as an environmental health examiner for the VA with relevant education and specialized training. The examiner provided a thorough, exhaustive, and cogent rationale for her findings and opinions, which included consideration of the Veteran’s reported symptoms both during and after service, and the post-service clinical history and pertinent scientific studies. There are no competent or equally probative opinions to the contrary. The Board acknowledges the Veteran’s statements in an August 2016 letter that he sincerely believed his esophagus was affected and ultimately diseased when he had to ingest food and water and breathe air containing Agent Orange. The Board also acknowledges the appellant’s sincere belief that the Veteran’s esophageal cancer was caused by his exposure to Agent Orange during service. However, the question of etiology is a complex medical determination requiring medical training, knowledge and understanding of multiple organ systems, toxicology, and oncology. Thus, the competency to opine on the matter is not readily is not within the common knowledge of a lay person. See Layno v. Brown, 6 Vet. App. 465 (1994). As there is no showing of medical expertise on the part of the Veteran or his widow, their statements are not competent to ascertain the etiology of his disease, as the causative factors are not readily subject to lay observation. The Veteran submitted multiple pieces of evidence in support of the contention that esophageal cancer is at least as likely as not is related to exposure to Agent Orange. This included internet articles and forum posts; a quote from an esophageal cancer awareness association; a May 1990 report from Admiral E.R. Zumwult; and previous Board decisions, nine of which granted service connection for esophageal cancer in veterans exposed to herbicide agents. In the Veteran’s VA Form 9 he quoted an esophageal cancer awareness association as indicating “the best researchers still could not tell if adenocarcinoma of the esophagus was specifically associated with exposure to a carcinogenic substance such as Agent Orange. The study was completed by a toxicologist with over 40 years of experience, and it is to the effect that there was some statistical evidence that substantial exposure to agent orange increased the chances of esophageal cancer.” Although acknowledging the claim that there is some evidence that exposure to Agent Orange increased the chances of esophageal cancer, the Board notes that the statement as a whole is equivocal regarding the existence of a causal relationship and points out that the overall uncertainty is consistent with the conclusion of the National Academy of Sciences. With respect to the internet postings from various persons describing Vietnam veterans with esophageal cancer, though these are anecdotal evidence that can help suggest a link between exposure to herbicide agents and esophageal cancer, the Board finds more probative weight in the full-scope studies of the National Academy of Sciences. Moreover, to the extent the authors of the postings themselves assert a link between herbicide agents and esophageal cancer, it is not possible to verify that these persons are competent to give such an opinion. Regarding the general studies and anecdotes presented above, the Board notes that the US Court of Appeals for Veterans Claims has held that broad materials such as treatises generally are not specific enough to show a nexus, Sacks v. West, 11 Vet. App. 314, 317 (1998), and that medical opinions regarding a specific patient are more probative than a medical treatise. Herlehy v. Brown, 4 Vet. App. 122, 123 (1993). Therefore, these submissions warrant less probative weight than the October 2016 VA opinion, which applied medical principles to the specific facts of the Veteran’s case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Regarding the August 2007 article and report authored by Admiral Zumwult the Board notes that the majority of the article broadly discusses the issue without expressly linking esophageal cancer to herbicide exposure, the author did offer his or her own theory that an herbicide agent can create a bodily response similar to Epstein-Barr virus (“EBV”), and then cited medical findings of a link between EBV and esophageal cancer. Moreover, the thrust of the author’s entire article overall seems to be that herbicide agents are linked to diseases such as esophageal cancer. Yet, because the author’s name and credentials, if any, are not provided in the article, the Board is unable to verify the competency of the author to make these claims and therefore must assign it limited probative value. Cited within the August 2007 article and submitted independently to the record was a May 1990 “Report to the Secretary of the Department of Veterans Affairs on the Association Between Adverse Health Effects and Exposure to Agent Orange” authored by Admiral Zumwult. In the report, the Admiral states his belief that it is at least as likely as not that there is a relationship between exposure to Agent Orange and, among other diseases, esophageal cancer. The Board notes that since 1993 the National Academy of Sciences has been reviewing and summarizing the scientific evidence concerning the association between herbicide exposure and diseases suspected to be associated with such exposures. The Secretary has specifically determined that a presumption of service connection is not warranted for gastrointestinal tumors, including of the esophagus, based on herbicide exposure. See 72 Fed. Reg. 32,395 (June 12, 2007). The National Academy of Sciences in Update 2012 and in Update 11 (2018) found inadequate or insufficient evidence to determine whether an association exists between herbicide exposure and cancers of the digestive organs, including esophageal cancer. This category of association means that available epidemiologic studies are of insufficient quality, consistency, or statistical power to permit a conclusion regarding the presence or absence of an association. See77 Fed.Reg. 47,924 (August 10, 2012). Finally, the previous Board decisions are non-precedential, and they are of limited probative value given that each case is decided on the basis of the particular facts in light of the applicable law and regulations. 38 C.F.R. § 20.1303. In summary, the Board finds the April 2020 VA opinion is entitled to the highest probative value. As such, the preponderance of the competent and credible evidence does not support a causal link between the Veteran’s service and his esophageal cancer. Although the Board is sympathetic to the appellant’s claim and presumes that the Veteran was exposed to herbicide agents during his service, the weight of the evidence of record is that the exposure did not cause his esophageal cancer. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the claimant when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the claim for direct service connection for esophageal cancer. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54. (1990) D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Vuong, 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.