Citation Nr: 21071579 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-39 809A DATE: November 30, 2021 ORDER The claim of entitlement to service connection for esophageal cancer is denied. FINDING OF FACT The Veteran's esophageal cancer was not caused by an in-service event, illness, or injury, and it is not a disease considered to be caused by exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for esophageal cancer are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Army from January 1965 to January 1968, to include service in the Republic of Vietnam. The instant matter is on appeal from an April 2016 rating decision. The Veteran passed away in July 2016. His surviving spouse, the appellant in the present claim, was granted substitution in his ongoing appeal. In July 2021, the appellant testified before the undersigned in a virtual hearing. A transcript of the proceedings has been associated with the record. 1. The claim of entitlement to service connection for esophageal cancer The appellant contends that the Veteran was entitled to service connection for esophageal cancer. Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by service. 38 U.S.C. §§ 1110. A grant of service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the in-service event, injury, or disease. 38 C.F.R. § 3.303; see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Absent affirmative evidence to the contrary, veterans who served in the Republic of Vietnam, including the territorial waters of Vietnam, during the Vietnam Era are presumed to have been exposed to certain herbicide agents. 38 U.S.C. §§ 1116, 1116A; 38 C.F.R. § 3.307; see also Procopio v. Wilkie, 913 F.3d 1371, 1376 (Fed. Cir. 2019). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active service, the diseases listed in 38 C.F.R. § 3.309(e) shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. VA has issued several notices in which it was determined that a presumption of service connection based upon exposure to herbicides used in Vietnam should not be extended beyond specific disorders, based upon extensive scientific research. See, e.g., 68 Fed. Reg. 27630 -27641 (May 20, 2003); 67 Fed. Reg. 42600 (June 24, 2002); 66 Fed. Reg. 2376 (Jan. 11, 2001); 64 Fed. Reg. 59232 (Nov. 2, 1999). Notwithstanding the presumption, service connection for a disability claimed as due to exposure to herbicide agents may be established by showing that a disorder resulting in disability or death 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 must assess the credibility and weight of all of the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue."). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 49. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran's service treatment records, including his January 1965 entrance examination and December 1967 separation physical, are silent for esophageal cancer or symptoms consistent with that disability. The first appearance of an esophageal disability occurred around June 2015 when the Veteran sought treatment for dyspnea associated with his emphysema. Imaging studies and examination identified a moderate hiatal hernia with thickened distal esophageal and gastric wall. Biopsy later revealed a diagnosis of esophageal adenocarcinoma at the junction of the stomach. He was deemed not to be a surgical candidate due to his chronic obstructive pulmonary disease, and he underwent multiple rounds of radiation and chemotherapy that he did not tolerate well. He elected to go into hospice after a final attempt of palliative chemotherapy in February 2016. Unfortunately, the evidence does not reflect that the Veteran had this disability in service or that his current disability is directly related to his service. Service connection on a direct basis is therefore not warranted. The Board has also considered the Veteran's and the appellant's statements that his esophageal cancer was caused by herbicide agent exposure. While the Veteran served in the Republic of Vietnam, and exposure to herbicide agents is conceded, esophageal cancer is not a disease considered for presumptive causation pursuant to exposure to herbicide agents. 38 C.F.R. §§ 3.307, 3.309(e). As such, the Veteran may not be awarded service connection for his esophageal adenocarcinoma via presumptive service connection due to exposure to herbicide agents. The appellant contends that the Veteran's esophageal cancer should be considered for service connection due to exposure to herbicidal agents. 38 C.F.R. §§ 3.307, 3.309. Neither the Veteran nor the appellant provided any medical evidence linking esophageal cancer to herbicide agent exposure through the appellate period. While the appellant's representative indicated in the hearing before the undersigned that they would attempt to obtain a private medical opinion on the matter, the 90-day extension period to submit that opinion has elapsed without response. Additionally, neither the Veteran nor the appellant have demonstrated evidence of medical expertise sufficient to render an opinion as to the etiology of his esophageal cancer. Jandreau, 492 F.3d at 1372. As such, the Board assigns these lay statements no probative weight. The Board notes that the Veteran was not afforded a VA examination prior to his passing to determine the etiology of his esophageal cancer, nor was a medical opinion obtained. The VA must provide an examination when the evidence shows: (1) A current disability; (2) an in-service event, injury, or disease; (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for the VA to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). As fully addressed above, while the Veteran had a diagnosis of esophageal cancer prior to his passing, there is no evidence of an in-service event, injury, or disease. Neither the appellant nor the Veteran provided supplemental medical evidence that would indicate a relationship between herbicide agent exposure and esophageal cancer, which occurred many decades after discharge. Thus, a VA examination is not required, and the Board finds that VA's duty to assist is met with this regard. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. For these reasons, the claim of entitlement to service connection for esophageal cancer is denied. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Fisher, 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.