Citation Nr: 21064121 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 16-52 137 DATE: October 19, 2021 ORDER Entitlement to service connection for cancer of the esophagus is denied. Entitlement to service connection for gastroesophageal reflux disease (GERD) and Barrett's esophagus is denied. REMANDED Entitlement to service connection for a skin disability, to include squamous cell carcinoma, basal cell carcinoma, and actinic keratosis, is remanded. FINDINGS OF FACT 1. The Veteran does not have and has not had cancer of the esophagus. 2. GERD and Barrett's esophagus were not manifest in service and are not attributable to service. 3. Barrett's esophagus is not proximately due to or aggravated by a service-connected disease or injury. CONCLUSIONS OF LAW 1. Esophagus cancer was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. GERD and Barrett's esophagus were not incurred in or aggravated by service. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. Barrett's esophagus is not proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1969 to July 1970. He had service in the Republic of Vietnam. In March 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board of Veterans' Appeals (Board) video conference hearing. The VLJ clarified the issues, explained the concept of service connection, identified potential evidentiary defects, and left the file open for the submission of evidence. Such actions comply with 38 C.F.R. § 3.103. A transcript of the proceeding is of record. In a June 2020 decision the Board denied the Veteran's claims for service connection for esophagus cancer, Barrett's esophagus, and a skin disability. The Veteran appealed the denials to the United States Court of Appeals for Veterans Claims (Court). In a June 2021 Order, the Court granted a Joint Motion for Partial Remand, vacated the portion of Board's June 2020 decision denying service connection for esophagus cancer, Barrett's esophagus, and a skin disability, and remanded the matters for action consistent with the terms of the Joint Motion. The matters now return to the Board. SERVICE CONNECTION 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. 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 causal relationship between the present disability and the disease or injury incurred or aggravated during service" the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection is warranted on a secondary basis for "disability which is proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310 (a). Secondary service connection is also warranted for "[a]ny increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease." 38 C.F.R. § 3.310 (b). Certain chronic diseases, including malignant tumors, will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303 (b), 3.307, 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Cancer of the esophagus. 2. GERD and Barrett's esophagus. The Veteran primarily seeks service connection for Barrett's esophagus. He originally filed a claim for respiratory cancer in December 2014. However, as found by the Agency of Original Jurisdiction and noted during the March 2020 Board hearing, he has not ever had a respiratory cancer. At the Board hearing, the undersigned VLJ allowed the Veteran to modify his claim to be entitlement to service connection for cancer of the esophagus rather than respiratory cancers. The undersigned found there was no prejudice to the Veteran because he was aware of the modification and was the one modifying the issue. See March 2020 hearing transcript, page 3. Later in the hearing, the Veteran testified that he has not ever had cancer of the esophagus, but instead has Barrett's esophagus, a complication of gastroesophageal reflux disease (GERD). See March 2020 hearing transcript, page 11. The Veteran does not contend, and evidence does not show, he has cancer of the esophagus. To the contrary, the Veteran has testified to not ever having esophagal cancer. Therefore, the first prong of establishing service connection for esophagal cancer is not met. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § § 1110; Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such, the claim for service connection for esophageal cancer is denied. The Veteran does not have and has not ever had cancer of the esophagus. Service connection for cancer of the esophagus must be denied. The Board's June 2020 decision also denied service connection for Barrett's esophagus, concluding that there was no evidence of the disorder in service, no competent evidence linking the disorder to service. The Board also concluded that, although the Veteran had speculated that Barrett's esophagus was related to GERD, he was not service connected for GERD and had not raised a valid legal theory of entitlement to secondary service connection. As noted above, the Veteran appealed the Board's June 2020 decision to the United States Court of Appeals for Veterans Claims (Court). Regarding the claim for service connection for Barrett's esophagus, the parties to the Joint Motion agreed that the Board had erred by failing to consider DiLisio v. Shinseki, 25 Vet. App. 45 (2011) when denying service connection for Barrett's esophagus in the June 2020 decision. In DeLisio, the Court noted that, ". . . if [a] condition for which VA benefits are sought is not directly associated with service, but information obtained during the processing of the claim reasonably indicates that the cause of the condition is a disease or other disability that may be associated with service, the Secretary generally must investigate whether the causal disease or disability is related to service, in order to determine whether the claimed condition is related secondarily to service." DeLisio, 25 Vet. App. 45, 54. The Court went on to explain that, "[i]f the Secretary determines that the causal disease or disability is, in fact, connected to service, then the claim for benefits for the condition "reasonably encompasses" a claim for that causal disease or disability, such that no additional filing is necessary to initiate a claim for benefits for the causal disease or disability." Id. Here, at the March 2020 Board hearing, the Veteran and his wife testified that he had GERD symptoms during service that continued afterward and that he eventually developed Barrett's esophagus. The parties to the Joint Motion agreed that the Board's June 2020 decision denying service connection for Barrett's esophagus must be vacated because the Board's failure to consider and discuss DiLisio, combined with the brief discussion of GERD, when looked at in the light of the hearing testimony, did not enable the Veteran to understand the precise basis for the decision. Initially, this matter is somewhat distinguishable from the situation presented in DiLisio. Here, the Secretary has already investigated whether the causal disease of the Veteran's Barrett's esophagus (GERD) is related to service. The Veteran filed a separate claim for service connection for GERD in January 2020, which was denied in an April 2020 rating decision. The Secretary has already determined that GERD is not in fact connected to service. Nevertheless, we note that the information suggesting that the Veteran's GERD may be associated with his service was obtained at the March 2020 Board hearing during the processing of the Veteran's appeal for Barrett's esophagus. As noted, when information obtained during the processing of a claim reasonably indicates that the cause of the condition claimed is a disease that may be associated with service, the VA must generally determine whether the causal disease is related to service. As such, the Board will consider whether service connection for GERD is warranted pursuant to DiLisio and the May 2021 Joint Motion. After considering the evidence, the Board concludes that service connection for GERD and Barrett's esophagus is not warranted. Service treatment records are absent any relevant complaints, treatments, or diagnoses relating to either GERD or Barrett's esophagus. The November 1970 separation examination shows a clinically normal evaluation of the abdomen and viscera, with no relevant symptoms noted. Post-service VA treatment records show the Veteran first reported reflux in October 2011 that was waking him up at night and had started in the past year. He was diagnosed with GERD and prescribed ranitidine. Private treatment records dated August 2014 show the Veteran was diagnosed with Barrett's esophagus following an EGD and an esophageal biopsy in July 2014. Subsequent treatment records note Barrett's esophagitis is likely associated with GERD, and the Veteran has submitted a Mayo Clinic article noting that Barrett's esophagus is often diagnosed in people who have long-term GERD. At the March 2020 Board hearing the Veteran testified that he had GERD during service and that he had self-treated his reflux with Tums or Rolaids since, and his spouse testified he had used the antacids immediately after service. Here, medical treatment records are absent any notation of GERD or reflux symptoms until 2011, when the Veteran reported his reflux had started within the past year. Service treatment records show no relevant complaints, treatments, or diagnoses. Barrett's esophagus itself was first identified in 2014. The medical record GERD was diagnosed in 2011 following his report that reflux had started within the past year, suggesting an onset is approximately 2010. Regarding the Mayo Clinic article, while the article states that Barrett's esophagus often diagnosed in people who have long-term GERD, the article itself provides general information and has no bearing on whether the Veteran's GERD was present during his service or is otherwise related to service. The only evidence supporting the claim for service connection for either GERD or Barrett's esophagus is the testimony provided at the March 2020 Board hearing. VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability or death benefits. 38 U.S.C. § 1154 (a); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). Here, the Veteran is competent to report symptoms of reflux and heartburn as these are lay observable, and the Veteran's spouse is competent to report what she witnesses. However, we do not find the assertions that the Veteran had GERD and related symptoms during service and continuing since service to be credible. Service treatment records are negative, and the relevant systems were normal at the separation examination in November 1970. The first post-service records indicating the Veteran had GERD and reflux are the October 2011 VA treatment records diagnosing GERD, where the Veteran reported that his reflux had started within the past year. Barrett's esophagus was first identified in 2014. These findings are not consistent with the after-the-fact reports of symptoms during service that have continued since separation. We again note that the absence of contemporaneous medical records regarding the Veteran's current GERD and Barrett's esophagus does not, in and of itself, render lay evidence not credible. Buchanan, 451 F.3d at 1336-7 (Fed. Cir. 2006). However, the contemporaneous medical record here is not silent. No relevant symptoms were identified during service, the separation examination is clinically normal, and the Veteran previously dated the onset of his reflux to approximately 2010, 40 years after he separated from service. His own report for initial treatment purposes is highly probative as to the onset of the disorder. Furthermore, his report for treatment of a post-service onset is consistent with the normal separation examination. Credibility can be affected by such factors as inconsistent statements, inconsistency with other evidence of record, bias, and self-interest. Caluza, 7 Vet. App. at 511. To the extent the Veteran and his spouse report GERD or any related symptoms and disorders, to include Barrett's esophagus, were present during service and have continued since, such assertions are outweighed by the negative service treatment records, the long period between separation from service and the first complaints of reflux, and the Veteran's prior statements made during treatments dating the onset of his reflux to approximately 2010. The testimony at the March 2020 Board hearing regarding GERD is less credible and afforded much less probative value than the remainder of the record. We note that the Veteran's spouse is a retired physician and qualified to offer medical opinions. However, her after-the-fact statements that the Veteran had GERD symptoms during and immediately following service are remarkably inconsistent with the remainder of the record. Service treatment records show no symptoms and that the relevant systems were normal at separation, and the October 2011 VA treatment records show the Veteran previously dated the onset of his reflux to approximately 2010, 40 years after he separated from service. Her statements are afforded much less probative weight than the medical evidence. In sum, the preponderance of the evidence is against granting service connection for either GERD or Barrett's esophagus. The contemporaneous records show that relevant systems were normal during service and at separation. The more probative evidence establishes that the Veteran did not have GERD during service, that such disorder is not related to any event in service, and that it is otherwise unrelated to service. Post-service records establish a remote onset of both GERD and Barrett's esophagus many years after separation from service. The after-the-fact lay assertions to the contrary are not credible. Considering service connection is not warranted for GERD as directly due to service, it follows that service connection for Barrett's esophagus is also not warranted as secondary to GERD under 38 C.F.R. § 3.310. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim for service connection for GERD and Barrett's esophagus is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In reaching our conclusion, the Board notes that the Veteran has not been provided with a VA examination or nexus opinion with respect to the issues of service connection for esophageal cancer, GERD, or Barrett's esophagus. VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to decide a claim. C.F.R. § 3.159 (c)(4). In in determining whether the duty to assist requires that a VA medical examination be provided, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Considering the McLendon factors, here the Veteran does not have and has never had esophageal cancer, although he does have GERD and Barrett's esophagus. However, there is no evidence of record that GERD or Barrett's esophagus were present during service or are otherwise related to service. There is no indication that either GERD or Barrett's esophagus are otherwise related to any other service-connected disease or injury. Furthermore, there is medical evidence establishing a remote onset of both GERD and Barrett's esophagus that is sufficient to make a decision on the claim. Remand to provide a VA examination or to obtain a medical opinion is not warranted with respect to these issues. REASONS FOR REMAND 1. Entitlement to service connection for a skin disability, to include squamous cell carcinoma, basal cell carcinoma, and actinic keratosis, is remanded. The Veterans seeks service connection for a skin disability, including squamous cell carcinoma, basal cell carcinoma, and actinic keratosis. He contends these disabilities are related to in-service sun exposure, in particular his exposure to sun during his service in Vietnam. The Board denied the Veteran's claim for a skin disability in June 2020, and he appealed to the United States Court of Appeals for Veterans Claims (Court). In a June 2021 Order, the Court granted a Joint Motion for Partial Remand that, in relevant part, vacated the portion of Board's June 2020 decision denying service connection for skin disabilities and remanded the claim to the Board for action consistent with the Joint Motion. Regarding the skin disabilities, the parties to the Joint Motion agreed that the Board had erred in finding that a VA examination was not necessary by failing to consider whether two statements of record from medical professionals were sufficient to satisfy the third prong necessary to require a VA examination under McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA's duty to assist includes providing a medical examination or opinion when one is necessary to make a decision on a claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159. In in determining whether an examination or opinion must be obtained, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. McLendon, 20 Vet. App. 79, 81; 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). Regarding the McLendon factors, medical records reflect the Veteran has had squamous cell carcinomas and basal cell carcinomas of the skin as well as actinic keratosis. He primarily contends that the skin cancers and keratoses are related to sun exposure during his service in the Republic of Vietnam, and in March 2020 the Veteran's private dermatologist provided a statement that multiple carcinomas of his skin were the result of UV and sun exposure over his lifetime of 70 years, but that the Veteran's "year of service in Vietnam with whatever sun exposure he had there would be a contributory factor." Additionally, the Veteran's spouse, who is a retired medical doctor, provided testimony that the Veteran's skin was much darker when he was in Vietnam, that his skin cancers have primarily been on his face and neck, and that the primary cause of squamous cell and basal cell carcinomas is sun exposure and UV light. As a result, the low threshold for obtaining a VA examination and opinion is met. Remand is required to obtain a VA examination and nexus opinion for the Veteran's claimed skin disabilities, including squamous cell carcinoma, basal cell carcinoma, and actinic keratosis. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's skin disabilities, including basal cell carcinomas, squamous cell carcinomas, and actinic keratosis. The examiner must opine whether any skin disability is at least as likely as not (50 percent or greater probability) due to the Veteran's in-service sun exposure, including exposure during his service in the Republic of Vietnam. A complete rationale must be provided for any opinion offered. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morse 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.