Citation Nr: 21003290 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 14-43 545 DATE: January 21, 2021 ORDER Entitlement to service connection for lung disability, to include chronic obstructive pulmonary disease (COPD) and restrictive lung disease to include as due to herbicide exposure on a substitution basis, is denied. Entitlement to service connection for esophageal cancer, to include as due to herbicide exposure on a substitution basis, is denied. FINDINGS OF FACT 1. A lung disability was not manifest in service and is not otherwise attributable to service. 2. Esophageal cancer was not manifest in service and is not otherwise attributable to service, nor did not manifest within one year of separation from service. CONCLUSIONS OF LAW 1. The criteria for service connection for a lung disability have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for esophageal cancer have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1967 to March 1968. He died in August 2014. His widow is the appellant and substituted as a claimant. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2015, the appellant testified at a videoconference hearing held at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. In May 2018 and June 2020, the Board remanded the claims on appeal for evidentiary development. The June 2020 remand in particular instructed the agency of original jurisdiction (AOJ) to inform the appellant that she may submit evidence in support of her claims to include submitting a medical authorization form to obtain outstanding records pertaining to the initial diagnosis of esophageal cancer in 1999 as well as obtaining a medical opinion from Dr. Darr or another qualified medical provider pertaining to the claims on appeal. Such development was completed by the AOJ in September 2020. The appellant has not responded to this correspondence. In December 2020, the appellant was informed that the Veteran’s claims folder has returned to the Board for further appellate consideration. Service Connection Lung disability and Esophageal cancer Veterans are entitled to compensation from VA if they develop a disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For certain chronic disorders, including esophageal cancer, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. When the fact of chronicity in service is not adequately supported, a continuity of symptomatology since service is an alternative means of establishing service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331. Certain diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). Esophageal cancer is not on the list of presumptive disorders. When there is an approximate balance of evidence regarding an issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102. The appellant contends that the Veteran had a lung disability that is related to service to include as due to herbicide exposure during service. Previously, the Veteran also suggested that the lung disability is due to asbestos exposure. See the November 2012 notice of disagreement. The appellant further contends that the Veteran had esophageal cancer that is related to service, to include as due to herbicide exposure during service in Vietnam. The service treatment records associated with the claims folder are absent complaints of, or treatment for a lung disability or esophageal cancer or symptoms associated therewith. While the Board acknowledges the Veteran’s report as to in-service exposure to asbestos, there is no objective evidence that he was exposed to asbestos in service to include from performing his military occupational specialty as an inventory management specialist. However, regarding the appellant’s contention that the Veteran’s lung disability and esophageal cancer are due to in-service exposure to herbicides, service personnel records verify the Veteran’s service in Vietnam. Therefore, he is presumed to have been exposed to herbicides in service. 38 U.S.C. § 1116(f). The Board further notes that the medical evidence documents a June 2011 medical opinion from Dr. David Holden wherein he noted a diagnosis of COPD. Also, a December 2019 VA medical opinion indicates the Veteran also had a chronic restrictive lung disease. Further, prior to his death, the Veteran was treated for esophageal cancer. VA regulations provide that certain diseases associated with in-service herbicide exposure may be presumed service connected. 38 C.F.R. §§ 3.307, 3.309(e). The Veteran’s COPD, restrictive lung disease, and esophageal cancer are not included as presumptive conditions. Nonetheless, the Veteran may establish service connection with sufficient evidence of actual causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Upon review of the record, the Board determines that a preponderance of the evidence is against finding that the Veteran’s lung disability and esophageal cancer are related to service. Specifically, a VA medical opinion was obtained in December 2019 regarding the etiology of the Veteran’s lung disability and esophageal cancer. After review of the Veteran’s medical history, the examiner concluded that the Veteran’s restrictive lung disease is likely from recurrent aspiration vs. occupational exposures. The examiner further concluded that it is less likely than not that the Veteran’s COPD and esophageal cancer were related to in-service herbicide exposure. The examiner’s rationale for her conclusion that the Veteran’s COPD is not related to the in-service herbicide exposure was based on her review of medical literature (to include a Zumwalt report) that did not support a finding of a relationship. The rationale for her conclusion that the Veteran’s esophageal cancer is not related to in-service herbicide exposure was based on her finding that the most common causes of esophageal cancer include chronic tobacco exposure and recurrent alcohol use. Although the record does not indicate the Veteran smoked, he reported during a November 2011 VA mental health examination that he was a heavy drinker in the past. Moreover, the examiner reported that there was insufficient medical evidence (including review of the Zumwalt report) to support a finding of a relationship between esophagal cancer and exposure to herbicides. The December 2019 VA examiner’s opinions were based upon thorough analysis of the Veteran’s entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”). Additionally, the VA examiner’s opinions are consistent with the Veteran’s documented medical history, which is absent any report of a lung disability or esophageal cancer in service or for many years thereafter. The examiner also noted the Veteran’s report of exposure to herbicides in service and further indicated that such injury did not cause the lung disabilities and esophageal cancer. In support of this claim, Dr. Darr testified at the August 2015 Board hearing that the Veteran had esophageal cancer directly caused by his Agent Orange exposure in service. Dr. Darr’s rationale was that the Veteran had been a healthy individual with no family history of esophageal cancer prior to his military served and his exposure to Agent Orange is the likely cause of this cancer. However, no further rationale was provided by Dr. Darr. Notably, he did not comment on the Veteran’s history of alcohol abuse, which as discussed above by the VA examiner is a cause of esophageal cancer. He also did not explain the absence of complaints of or symptoms related to the Veteran’s esophageal cancer in service or for many years thereafter. As such, the Board finds that the opinion of Dr. Darr is outweighed in probative value by the December 2019 VA opinion. As referenced above, the appellant was provided additional notice in September 2020 that she could provide another medical opinion in response to the negative December 2019 VA opinions regarding esophageal cancer and lung disability. However, no additional medical evidence was received. Also of record is a private opinion dated in June 2011 by Dr. Holden who noted the Veteran has COPD and reported that COPD is a condition that veterans acquired due to Agent Orange exposure. To the extent that Dr. Holden indicated that the Veteran had COPD related to in-service herbicide exposure, the Board notes that no rationale was provided for his opinion. As such, the Board finds that the private report by Dr. Holden is of no probative value. (Continued on the next page)   The Board further acknowledges the appellant’s reference during the August 2015 Board hearing to a confidential report by Admiral Zumwalt that states it is at least as likely as not that esophageal cancer is related to Agent Orange exposure. This report has been associated with the claims folder. The Board notes that medical treatise evidence can, in some circumstances, constitute competent medical evidence. See Wallin v. West, 11 Vet. App. 509, 514 (1998); see also 38 C.F.R. § 3.159(a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). However, the Zumwalt report does not contain any information or analysis specific to the Veteran’s case. On the contrary, as discussed in detail above, the VA examiner reviewed the Veteran’s medical history, considered his complaints, and thereafter concluded that the Veteran’s esophageal cancer was not related to in-service herbicide exposure. The examiner also considered the Zumwalt report. The Board has therefore placed great probative value on the findings of the VA examiner. As such, the Zumwalt report is outweighed in probative value by the VA examiner’s opinion. The most probative evidence reflects that esophageal cancer and lung disorders developed many years after the Veteran’s separation from service. The preponderance of the evidence is against a finding that they were etiologically related to his presumed in-service herbicide exposure. The preponderance of the evidence is against the claims and the doctrine of reasonable doubt is not for application. The claims are denied. See 38 C.F.R. § 3.102. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Nadia Kamal, 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.