Citation Nr: 21072533 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 14-02 282 DATE: December 3, 2021 ORDER Entitlement to service connection for esophageal cancer is granted. REMANDED Entitlement to service connection for kyphoscoliosis of the lumbar spine with degenerative changes, to include as secondary to service-connected bilateral ankle disability, is remanded. FINDING OF FACT The Veteran's esophageal cancer was at least as likely as not incurred during service. CONCLUSION OF LAW The criteria for service connection for esophageal cancer have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Navy from July 1954 to November 1975. Unfortunately, the Veteran died during the pendency of the appeal in April 2014. The appellant is his surviving spouse. Initially, the Board extends its sincere condolences to the appellant for the loss of her husband and recognizes the valuable service that he provided to this country in the United States Navy. An October 2014 letter reflects that she has been accepted as the Veteran's substitution for purposes of processing his appeal to completion. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010; see also 79 Fed. Reg. 52,977-52,985 (Sept. 5, 2014). This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). This matter was previously before the Board in March 2017, at which point it was remanded for a new VA opinion. While the Board regrets additional delay, the Board finds that this opinion, as it pertains to the service connection claim for a lumbar disability, is inadequate and remand is necessary. Stegall v. West, 11 Vet. App. 268, 271 (1998). I. Duty to Assist The Board notes that numerous private medical records relied upon in the September 2010 rating decision are missing from the claims file. In March 2017, the Board remanded the Veteran's claims to the AOJ in order to locate and associate the missing records with the claims file. In April 2021, the AOJ was notified that all available medical records were uploaded to the claims file and no additional records were available. The appellant was asked to complete and return authorization and release forms in order to obtain the missing private treatment records or to obtain and send these records on her own. However, the appellant did not respond to this request. Since the date of the correspondence, the appellant has not submitted any additional records, nor has she requested that VA attempt to obtain the records on her behalf. As such, the Board finds that VA's duty to assist has been satisfied with regard to obtaining treatment records. II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Service connection may also be granted for any disease initially diagnosed after service 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). Service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he or she served, his or her medical records, and all pertinent medical and lay evidence. See 38 C.F.R. § 3.303 (a); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay 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." Jandreau, 492 F.3d at 1377; and Buchanan, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). 1. Entitlement to service connection for esophageal cancer The Veteran maintained that his esophageal cancer was caused by his exposure to asbestos and other toxins during service. After his death, his wife, the appellant, maintained that the esophageal cancer was attributed to his gastroesophageal reflux disease (GERD), which began in service. The Board agrees with the appellant and finds that the elements of service connection have been satisfied. With respect to current disability, the Veteran was diagnosed with esophageal cancer in 2007 and underwent radiation and chemotherapy. In November 2013, a VA examiner indicated that this condition was currently in remission and the Veteran was taking Nexium for residual symptoms. This evidence establishes that a current disability was present. With regard to in-service incurrence, the Veteran's wife reported that the Veteran experienced gastroesophageal reflux disease (GERD) during service and she maintains this condition caused his esophageal cancer. She further reported that the Veteran received continuous care for this condition from the time of service up to when he was diagnosed with esophageal cancer. The Board notes that the Veteran's wife is competent to report symptoms and observable events within the realm of her personal knowledge as well as diagnoses reported to her by medical professionals. Layno v. Brown, 6 Vet. App. 465, 470-471 (1994); Jandreau, 492 F.3d at 1377. Furthermore, the Board finds no reason to doubt the credibility of these statements, as there is nothing on record to contradict them. Accordingly, the Board finds that the appellant's competent and credible lay statements sufficiently establish the in-service incurrence element of this claim. The remaining question is whether there is a nexus between the Veteran's in-service incurrence and his esophageal cancer. The record contains a positive and negative opinion addressing this question. In November 2015, a private treating oncologist concluded that the Veteran's exposure to exhaust fumes during his career in the Navy could possibly have contributed to the development of his malignancy. However, the Board finds that this opinion has no probative value because it is speculative and inconclusive. See Hood v. Shinseki, 23 Vet. App. 295, 298-99 (2009) (medical opinion is speculative when it uses equivocal language such as "could" or "might," without any other rationale or supporting data); Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (doctor's statement that the veteran's brain tumor "may well be" connected to Agent Orange exposure was speculative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (determining that a medical opinion framed in terms of "may or may not" is speculative and insufficient to support an award of service connection for the cause of death). In addition to this opinion, a VA examiner concluded in November 2013 that the Veteran's esophageal cancer was less likely as not related to or worsened beyond the natural progression by military service. The examiner reasoned that asbestos exposure is not a generally recognized risk factor for esophageal cancer. The examiner further indicated that GERD and tobacco use are known risk factors for esophageal cancer, both of which applied to the Veteran. In his rationale, the examiner implied that the Veteran's GERD was not related to his service. However, the Veteran's wife has stated, and the Board has found competent and credible, that the Veteran began treatment for GERD in service and that this treatment persisted up until the time he was diagnosed with esophageal cancer. Further, post service treatment records document severe esophagitis and reflux as early as 1986. As the examiner did not consider this evidence, the Board finds that his opinion regarding the nexus for GERD is inadequate. See Reonal v. Brown, 5 Vet. App. 548 (1993). However, the competent and credible lay statements that the Veteran's GERD has persisted since service, considered in combination with the VA examiner's conclusion that GERD is a known risk factor for esophageal cancer, is highly probative in establishing a nexus. See 38 C.F.R. § 3.303(a) (service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence); see also Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). Accordingly, the Board finds that the most probative evidence of establishes a nexus between service and the Veteran's esophageal cancer. In reaching this conclusion, the Board acknowledges that the Veteran has a history of tobacco use. Congress has prohibited the grant of service connection for disability due to the use of tobacco products during active service for claims filed after June 9, 1998. 38 U.S.C. §§ 1103 (a), 1110, 1131. Therefore, any claim of service connection based on tobacco use must fail. However, the record reveals that the Veteran stopped using tobacco in 1973, which was two years prior to his separation from the military. Conversely, the Veteran's GERD was present during service and persisted after service up to the time he was diagnosed with esophageal cancer. Accordingly, the Board finds that the most probative evidence of record does not support a finding that the Veteran's tobacco use caused his esophageal cancer. In sum, the weight of the evidence supports finding that the Veteran's esophageal cancer is related to his active service, and service connection is granted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; 3.303(a), (d). REASONS FOR REMAND Entitlement to service connection for kyphoscoliosis of the lumbar spine with degenerative changes, to include as secondary to service-connected bilateral ankle disability, is remanded. In a November 2021 informal hearing presentation (IHP), the appellant's representative asserted that exposure to tuberculosis during service caused the Veteran's kyphoscoliosis. In the alternative, the representative asserted that the Veteran's kyphoscoliosis was caused by his service-connected bilateral ankle disability. Concerning tuberculosis, service treatment records (STRs) reveal that the Veteran was exposed in approximately June 1968. However, there is no evidence that he actually contracted tuberculosis. In fact, six skin tests were performed after his exposure and all of them were negative. Accordingly, the Board finds no basis for the assertion that in-service exposure to tuberculosis caused the Veteran's lumbar disability. Concerning the Veteran's bilateral ankle disability, the Veteran reported that he was prescribed lifts for his shoes to treat his ankle disabilities, which altered his gait and caused the kyphoscoliosis. Consistent with his reports, treatment records reveal that the Veteran sought care for right ankle pain in October 2005. At this time, he was prescribed a rocker bottom shoe for the right foot and a lift for his left shoe to balance out his leg lengths. However, leg length discrepancy and gait abnormality were repeatedly noted as a current problem in subsequent treating records. Additionally, the appellant's representative asserted that loss of motion in the ankles itself caused the Veteran's lumbar disability and cited to two online articles for support. The first article notes that loss of motion in the ankle has a domino effect where normal walking becomes compromised, muscles higher in the leg and pelvis lose efficiency and strength, and issues such as low back pain and hip bursitis manifest. The second article notes that decreased coordination changes the way a person walks and leads to torsion or strain in the lower back. In addition to this evidence, the record contains two VA medical opinions. In November 2013, a VA examiner concluded that the Veteran's kyphoscoliosis of the lumbar spine with a lumbar fusion and degenerative changes is less likely than not caused by, related to, or worsened beyond the natural progression by military service or the Veteran's service-connected right ankle fusion disability. With respect to direct service connection, the examiner noted that there was treatment for back pain documented in STRs, but the Veteran's symptoms appeared to be acute, self-limiting, non-recurring, and not present in subsequent examinations. With respect to secondary service connection, the examiner noted that there is no generally accepted nexus in the medical literature between acquired scoliosis and an ankle fusion. Similarly, another VA examiner concluded in May 2021 that the Veteran's lumbar disability was not caused, or worsened beyond its natural progression, by the Veteran's service-connected ankle disability. This examiner also reasoned that there is no generally accepted nexus in the medical literature between acquired scoliosis and an ankle fusion. The Board finds that both of these opinions are inadequate. Neither examiner considered the Veteran's lay statements that service-connected bilateral ankle disability resulted in an altered gait and it was this symptom that caused his lumbar disability. Accordingly, the opinions are based on an inaccurate factual premise and are inadequate. See Reonal v. Brown, 5 Vet. App. 548 (1993). In light of this evidence, the Board finds that remand is necessary to obtain an addendum opinion addressing the Veteran's lay statements. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate VA examiner concerning the nature and etiology of the Veteran's lumbar disability. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. A notation to the effect that this review has taken place should be made in the evaluation report. The examiner should then address the following. A thorough rationale is required for all conclusions: (a) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's lumbar disability was caused by the Veteran's service- connected bilateral ankle disability. (b) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's lumbar disability was aggravated by the Veteran's service- connected bilateral ankle disability. * In providing an opinion the examiner must address the Veteran's contention that he experienced an altered gait from his service-connected bilateral ankle disability, which caused his lumbar disability. * The examiner must also address the contention that loss of motion in the ankles itself caused or aggravated the Veteran's lumbar disability. In formulating this opinion, the examiner must address the medical articles cited in the November 2021 IHP. 2. After ensuring that the opinion comply with the terms of this remand, the AOJ should re-adjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Beech, 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.