Citation Nr: 21063818 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-49 137 DATE: October 18, 2021 ORDER Service connection for gastric cancer is denied. Service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran's gastric cancer was 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 disability is not otherwise etiologically related to an in-service injury or disease, including as a result of herbicide agents, Camp Lejeune contaminated water exposure, chemical exposures at Marine Corps Air Station El Toro, or as secondary to his service-connected diabetes mellitus. 2. The Veteran died in February 2013; the primary case of death was advanced gastric cancer metastatic to liver with liver cirrhosis listed as the secondary cause of death. 3. The Veteran's advanced gastric cancer metastatic to liver and liver cirrhosis were not etiologically related to his service and/or service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for gastric cancer have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1318; 38 C.F.R. §§ 3.22, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from October 1969 to January 1969. The Veteran died in March 2013. The Appellant is the Veteran's surviving spouse and she has been substituted as the claimant for the service connection claim on appeal. In April 2019, the Board of Veterans' Appeals (Board) remanded this matter for additional development. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id. In addition, service connection for certain chronic diseases, including malignant tumors, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For purposes of establishing service connection for a disability resulting from exposure to herbicide agents, a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era, beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during that service, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f); 38 C.F.R. §§ 3.307(a), 3.309(e). The applicable criteria provide that a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e), will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). The enumerated diseases which are associated with herbicide agent exposure does not include gastric carcinoma. 38 C.F.R. § 3.309(e). To establish presumptive service connection for a disease associated with exposure to contaminated water at Camp Lejeune, a claimant must show the following: (1) that the veteran served at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) from August 1, 1953 to December 31, 1987; (2) that the veteran suffered from a disease associated with exposure to contaminants in the water supply at Camp Lejeune enumerated under 38 C.F.R. § 3.309(f); and (3) that the disease process manifested to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307(a)(7), 3.309(f). The enumerated diseases which are associated with exposure to contaminated water at Camp Lejeune does not include gastric carcinoma. 38 C.F.R. § 3.309(f). The availability of presumptive service connection for a disability based on exposure to herbicide agents or contaminated water at Camp Lejeune does not preclude a veteran from establishing service connection with proof of direct causation, or on any other recognized basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Secondary service connection is warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. The Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to service connection for gastric cancer. The Appellant seeks service connection for gastric cancer. However, the Veteran's service treatment records, to include his November 1972 separation examination, are silent for any complaints, findings, treatment, or diagnoses related to gastric cancer. Moreover, his postservice treatment records reveal that gastric cancer was not diagnosed until 2012, nearly 40 years after separation from service. Thus, based on the foregoing information, there is no evidence that the Veteran's gastric cancer manifested in service or to compensable degree in the first year following his separation from active duty service. See 38 C.F.R. § 3.309(a). Consequently, service connection for gastric cancer on the basis that such became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), is not warranted. Notably, neither the Appellant nor her representative has alleged (nor have they submitted competent evidence to show) that the Veteran suffered from gastric cancer continuously since service. See 38 C.F.R. § 3.303(b). Rather, it is the Appellant's contention, that the Veteran's gastric cancer is due to herbicide agent exposure, exposure to contaminated water at Camp Lejeune, exposure to chemicals at Marine Corps Air Station El Toro, or as secondary to his service-connected diabetes mellitus. As indicated above, however, the Veteran's gastric cancer is not on the list of diseases entitled to presumptive service connection due to herbicide agents or Camp Lejeune contaminated water exposure. See 38 C.F.R. § 3.309. While the Appellant is not precluded from establishing entitlement on a direct incurrence or other basis, aside from her bare assertion that the Veteran's gastric cancer is associated with in-service exposure to herbicide agents, contaminated water at Camp Lejeune, or chemical exposures at Marine Corps Air Station El Toro, there is no competent evidence establishing or even indicating that an etiological connection exists between the Veteran's diagnosis of gastric carcinoma and his in-service exposures. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). The Veteran's postservice treatment records only document the treatment of the claimed gastric carcinoma and do not include any indication that it may be related to his in-service exposures. In November 2015, a VA medical opinion was obtained to determine the nature and etiology of the Veteran's gastric cancer. Following a review of the record, the examiner opined that the Veteran's gastric cancer was less likely than not caused by or a result of the Veteran's exposure to contaminated water at Camp Lejeune. The examiner explained that the Veteran was exposed to contaminated water at Camp Lejeune for a period of 94 days, which was less than the average duration of exposure of 18 months published in studies of Camp Lejeune Marines. Further, the examiner indicated that the Veteran was diagnosed with gastric cancer in 2012, which was approximately 42 years after his service at Camp Lejeune. The Veteran was noted to have multiple risk factors for the development of gastric cancer. Additionally, the examiner noted that the Veteran had a history of alcohol abuse, obesity, and diabetes. Ultimately, the examiner held that in consideration of the Veteran's three months at Camp Lejeune, four decade latency, age, gender ethnicity, and risk factors, the Veteran's gastric cancer was less likely than not due to exposure to contaminated water at Camp Lejeune. See November 2015 VA Medical Opinion. In July 2020, another VA medical opinion was obtained to address whether an etiological relationship existed between the Veteran's gastric cancer and exposure to contaminated water at Camp Lejeune. After reviewing the claims file as well as multiple pieces of medical literature (with citations provided) the examiner opined that the Veteran's gastric cancer was less likely than not caused or incurred in by the Veteran's exposure to contaminated water at Camp Lejeune. To the contrary, the examiner noted that the Veteran had important risk factors for gastric cancer including age, male gender, Hispanic American ethnicity, and smoking. He had a negative family history or occupational history pertaining to gastric cancer. Further, the examiner noted that there was a long latency period between the Veteran's exposure to contaminated water and the onset of his gastric cancer. Ultimately, the examiner concluded that, while the Veteran was exposed to Camp Lejeune water contaminants in service, the weight of the medical evidence did not support a causal relationship between Camp Lejeune contaminated water exposure and the onset of gastric cancer. See July 2020 VA Medical Opinion. There are no contrary opinions of record. In September 2020, a VA medical opinion was obtained to address whether the Veteran's gastric cancer was etiologically related to his in-service herbicide agent exposure. Following a review of the record, the examiner opined that the Veteran's gastric cancer was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Namely, the examiner noted that the Veteran had a heavy smoking history, family history of cancer, obesity, and alcohol abuse. The examiner held that it was medically and scientifically impossible for the Veteran to have developed stomach cancer during service and live with it for decades until his death. Further, the examiner indicated that correlating the condition to any exposure event during service would entail overlooking more obvious risk factors and possible oncogenic mutations that occurred spontaneously. See VA Medical Opinion received September 2020. There are no contrary opinions of record. In October 2020, a VA medical opinion was obtained to address whether the Veteran's gastric cancer was caused by his diabetes mellitus or by the associated treatments for the condition, to include metformin. The examiner opined that neither diabetes mellitus, nor any of the associated treatments, to include metformin, were established etiologies of gastric cancer. To the contrary, the examiner held that the condition was more likely due to the Veteran's established history of alcohol abuse. To support this position, the examiner included an article from the National Institute of Health entitled, "Alcohol Consumption and Gastric Cancer Risk: A Meta-Analysis." The meta-analysis concluded that alcohol consumption elevated the risk of gastric cancer. See October 2020 VA Medical Opinion. There are no contrary opinions of record. A September 2020 VA medical opinion was also obtained to address whether the Veteran's gastric cancer was aggravated by his service-connected diabetes mellitus. The examiner opined that the Veteran's gastric cancer was considered inoperable and terminal and was less likely than not aggravated by another condition. The examiner explained that there is no physiological or anatomical mechanism by which diabetes would impact or aggravate the Veteran's gastric cancer. Further, he held that the metastases would be completely independent of any other medical condition, including diabetes. In reaching this determination, the examiner noted that his conclusion was supported by established medical knowledge and practice, and supported by current literature and medical texts, including Cecil and Harris. Therefore, he concluded, there was no evidence of aggravation beyond the natural course of the Veteran's gastric cancer, due to any cause, and specifically diabetes. See VA Medical Opinion received September 2020. There are no contrary opinions of record. The Board acknowledges an August 2014 Statement in Support of Claim submitted by the Appellant, which, in part, contended that the Veteran's gastric cancer may be related to exposure to burnings at landfills on former Marine Corps Air Station El Toro. To support this contention, the Appellant included an article titled, "El Toro Marine Dead from Chemical Exposure", which essentially reported that a Veteran was granted service connection for leukemia and lymphoma due to in-service chemical exposures while serving at Marine Corps Air Station El Toro. Specifically, the article indicated that a VA physician opined that the Veteran's leukemia and lymphoma were more likely than not due to in-service chemical exposures sustained while transporting hazardous materials and exposure to pollution from landfill burnings. Further, the article included a July 2004 VA medical opinion, which indicated that the Veteran's cancer was related to exposure to benzene and Agent Orange. The Board notes, however, that the present claim is different in several ways. Namely, unlike in the present case, the Veteran in the article was diagnosed with leukemia and lymphoma, which are both subject to presumptive service connection. Additionally, in the present case, numerous medical opinions have been obtained, which consistently state that the Veteran's gastric cancer was not etiologically related to in-service toxic exposures and instead was likely caused by factors such as age, gender, ethnicity, alcohol abuse, and smoking. Thus, the Board finds the article to have limited probative value with regard to the matter at hand. See August 2014 Statement in Support of Claim. The Board acknowledges the Appellant's contentions that the Veteran's gastric cancer was etiologically related to his in-service exposures, or alternatively, due to his diabetes mellitus and treatment thereof; however, the Board finds that the establishment of a nexus between the Veteran's gastric cancer and his military service and/or diabetes is a complex issue that requires an opinion from a trained medical professional. The Appellant has not been shown to have the required medical training to render a competent opinion on this issue. Layno, 6 Vet. App. at 470. In light of the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran's gastric cancer was etiologically related to the Veteran's active duty service, to include exposure to contaminated water at Camp Lejeune, herbicide agents exposure, or chemical exposure at Marine Corps Air Station El Toro. Additionally, the Bord finds that the preponderance of the evidence is against a finding that the Veteran's gastric cancer was caused or aggravated by his service-connected diabetes mellitus. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. See Gilbert, 1 Vet. App. at 49. Accordingly, the Veteran's claim for service connection must be denied. 2. Entitlement to service connection for cause of death. Death benefits may be paid to a deceased veteran's surviving spouse if the evidence shows that a service-connected disability either caused or contributed substantially or materially to the cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. In order to be service connected, a disability must have been incurred in or aggravated by service, or proximately due to a service-connected disability. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a pre-existing injury in the active military, naval or air service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran. See 38 C.F.R. § 3.312(a). The Veteran died in February 2013. The death certificate documents that the Veteran's immediate cause of death was advanced gastric cancer metastatic to liver and the secondary cause of death was liver cirrhosis. See Death Certificate received October 2014. At the time of the Veteran's death, his only service-connected disability was diabetes mellitus, Type II, with erectile dysfunction. As detailed above, the Board finds that the Veteran's gastric cancer was not etiologically related to service, to include exposure to contaminated water at Camp Lejeune, herbicide agents exposure, or chemical exposure at Marine Corps Air Station El Toro. Therefore, service connection for cause of death on the basis that the Veteran's gastric cancer was related to service and contributed to the Veteran's death is not warranted. To the contrary, the Appellant generally contends that the Veteran died as a result of exposure to herbicide agents or carcinogenic chemicals during service. See Statement in Support of Claim received January 2016. However, as the Veteran's gastric cancer was determined to be unrelated to service, this analysis will focus on whether the Veteran's liver cirrhosis was etiologically related to service. In November 2015, the Appellant submitted an article about the medication metformin. Notably, the article indicated that an individual taking metformin should contact their physician if they have a habit of drinking too much alcohol or have liver problems. See Correspondence received November 2015. The Appellant also submitted a letter in November 2015, wherein she indicated that the Veteran's physician, Dr. P.M., told the Veteran not to take metformin because it was hurting his liver. See Correspondence received November 2015. Despite the Appellant's claims regarding metformin, the record does not indicate that the Veteran was told to stop taking metformin due to liver damage. To the contrary, in January 2013, a month prior to the Veteran's death, a VA medical record indicates that the Veteran was informed that his a1c was at its goal and that he may no longer need to take glyburide/metformin. See VA Treatment Record received July 2017. As the contemporaneous treatment records indicate that the Veteran stopped taking metformin due to his a1c being under control, rather than the medication causing liver damage, the Board finds the Appellant's allegations regarding metformin causing liver damage not to be credible. In August 2017, a VA medical opinion was obtained to address whether the Veteran's diabetes mellitus and/or metformin contributed to his death. In relevant part, the examiner held that diabetes mellitus and/or metformin does not cause cirrhosis. To the contrary, she indicated that alcohol consumption was the number one cause of cirrhosis in this country. Moreover, she indicated that the Veteran had a long history of heavy alcohol use of up to 24 beers per week for 20 years. Further, the examiner noted that the VA treatment records revealed that the Veteran was drinking up to 6 beers daily in January 2012 and that he continued to drink 2 to 3 beers per week in July 2012, which was after the Veteran's diagnosis of cirrhosis. Therefore, the examiner concluded, alcohol consumption was the cause of the Veteran's cirrhosis. See August 2017 VA Medical Opinion. In September 2020, a VA medical opinion was obtained to address whether the Veteran's liver cirrhosis was etiologically related to his exposure to contaminated water at Camp Lejeune. The examiner noted that the Veteran had a long and extensive history of alcohol abuse. She maintained that the literature accepted by the medical community indicated that alcohol abuse was directly associated with development of cirrhosis. Specifically, the examiner noted that intake of 40 to 80 grams of ethanol per day in males for 10 to 12 years is a general predictor of advanced liver disease, including alcohol steatohepatitis, fibrosis and cirrhosis. Further, she indicated that Hispanics have a greater risk for development of cirrhosis. Regarding the present case, the examiner held that there was not sufficient medical evidence to associate solvent exposure to development of cirrhosis, especially in light of the Veteran's alcoholism for many decades, age, and ethnicity. Ultimately, the examiner stated that the Veteran's diagnosis of cirrhosis was 42 years after his exposure to contaminated water at Camp Lejeune, and this exposure was unlikely to have been the source of damage to his liver. See September 2020 VA Medical Opinion. Later in September 2020, another VA medical opinion was obtained to determine whether the Veteran's cirrhosis was causally related to the Veteran's military service. Following a review of the record, the examiner held that the Veteran's cirrhosis was less likely than not incurred in or caused by the Veteran's military service. Ultimately, the examiner held that the Veteran did not have hepatitis A or B, the other leading causes of liver cirrhosis. Additionally, the Veteran did not have hemochromatosis, Wilson's disease, Lupus, or other chronic underlying causes of cirrhosis. Further, the Veteran's STRs revealed no evidence that he developed cirrhosis during service, and the examiner held that it was medically and scientifically impossible for the Veteran to have developed cirrhosis during service and lived with it for decades until his death. See September 2020 VA Medical Opinion. In October 2020, a VA medical opinion was obtained to address whether the Veteran's liver cirrhosis or gastric cancer were etiologically related to the Veteran's diabetes mellitus, to include as secondary to metformin. Following a review of the record, the examiner held that the conditions were less likely than not proximately due to or a result of the Veteran's service-connected diabetes mellitus. The examiner explained that diabetes mellitus, nor any of the associated treatments, including metformin, were established etiologies of cirrhosis of the liver or gastric cancer. To the contrary, the examiner held that both conditions were more likely due to the Veteran's history of alcohol abuse, which was well established to cause cirrhosis. To support this conclusion, the examiner included two medical treatise articles from the National Institute of Health, which indicate that excessive alcohol consumption leads to higher risk of both gastric cancer and liver cirrhosis. See October 2020 VA Medical Opinion. The Board acknowledges the Appellant's allegations that the Veteran's liver cirrhosis was related to service, to include as due to herbicide agents exposure, contaminated water at Camp Lejeune, chemical exposure at Marine Corps Air Station El Toro, or as secondary to diabetes mellitus; however, the Appellant is not competent to provide a nexus opinion regarding this matter. This is a medically complex question that requires specialized medical education and knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Likewise, as the Appellant has not demonstrated any specialized medical training, such question is outside the competence of the Appellant in this case. See Id. at 1377 n.4; see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the numerous VA medical opinions that consistently stated that the Veteran's liver cirrhosis was due to his extensive history of alcohol abuse, age, and ethnicity. In sum, the Board finds that the Veteran's gastric cancer and liver cirrhosis were not etiologically related to service. As the preponderance of the evidence is against a finding that the Veteran's cause of death was etiologically related to service, to include a service-connected disability, service connection for the cause of the Veteran's death cannot be established, and the claim must be denied. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Talton, John H. 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.