Citation Nr: 21073932 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 17-01 078 DATE: December 13, 2021 ORDER Service connection for neuroendocrine cancer, to include due to presumed in-service Agent Orange exposure, is denied. Service connection for gynecomastia, to include secondary to neuroendocrine cancer, is denied. Service connection for cognitive impairment, to include secondary to neuroendocrine cancer, is denied. Service connection for gastrointestinal disorder, to include secondary to neuroendocrine cancer. is denied. FINDINGS OF FACT 1. The Veteran's neuroendocrine cancer did not have its onset in service, did not manifest to a compensable degree within one year of discharge, and is not otherwise causally related to the Veteran's service, to include presumed in-service exposure to Agent Orange. 2. The Veteran's gynecomastia, cognitive impairment, and gastrointestinal disorder did not have their onset in service, did not manifest to a compensable degree within one year of discharge, and are not otherwise causally related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for neuroendocrine cancer, to include due to exposure to Agent Orange, have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for gynecomastia, cognitive impairment, and gastrointestinal disorder, to include secondary to neuroendocrine cancer, have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1965 to August 1967, with verified service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from the January 2015, December 2015, and May 2017 Department of Veterans Affairs (VA) Regional Office (RO) rating decisions. The January 2015 rating decision, inter alia, denied service connection for neuroendocrine cancer. The Veteran's Notice of Disagreement (NOD) was received in September 2015. The Statement of the Case (SOC) was issued in December 2016, and the Veteran's VA Form 9, Substantive Appeal to the Board, was received in January 2017. The December 2015 rating decision, inter alia, denied service connection for a chemotherapy-related cognitive impairment and/or cognitive dysfunction and a gastrointestinal condition. The Veteran's NOD was received in December 2016. The SOC was issued in September 2017, and the Veteran's VA Form 9 was received in October 2017. The May 2017 rating decision denied service connection for gynecomastia. The Veteran's NOD was received in July 2017. The SOC was issued in September 2017, and the Veteran's VA Form 9 was received in October 2017. The claims were remanded in November 2019, August 2020, and August 2021. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1111, 1131, 1137; 38 C.F.R. § 3.303. Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. 38 U.S.C. § 1131 (2012); Davidson v. Shinseki, 581 F. 3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F. 3d 1163, 1166-67 (Fed. Cir. 2004). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § § 3.310. To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F. 3d 1313. The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Then, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. For veterans who are presumed to have been exposed to certain herbicide agents, including Agent Orange; or, for those veterans who are not entitled to the presumption of exposure, but who have otherwise established exposure to herbicide agents on a direct basis, certain diseases are presumed to be due to that exposure. If a disability is not one of the diseases enumerated under the herbicide exposure presumption, the Veteran is not precluded from establishing service connection due to herbicide exposure on a direct basis. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994). 1. Entitlement to service connection for neuroendocrine cancer, to include due to presumed Agent Orange exposure. The Veteran contends that his neuroendocrine cancer was caused by his in-service Agent Orange exposure. The Veteran's service treatment records (STRs) do not contain complaints or treatments for neuroendocrine cancer. The Veteran's August 1967 discharge examination did not disclose any affirmative notation of this disease entity or any associated symptomatology. A July 2014 letter from Dr. B.B., a private doctor indicates that the Veteran was diagnosed with an intermediate grade neuroendocrine cancer in June 2014. This provider expressed some concern that Agent Orange may be the causative factor in this cancer. Dr. B.B. also conveyed that Agent Orange may be related to the cause of this cancer, however, that there was no ability to say definitely whether Agent Orange is the cause. An August 2014 VA treatment note indicates that the Veteran had a family history of cancer. Specifically, a clinician reported that the cause of death of the Veteran's father was lung cancer. Whereas the cause of death of the Veteran's mother was bladder cancer. Also, the Veteran's grandmother, sister, and a host of other blood relations had or have cancer (breast, bladder, and colorectal). An August 2014 VA Agent Orange Registry examination report discloses that the Veteran had inferred exposure to Agent Orange, small bowel carcinoma with metastasis, neuroendocrine tumor, and abdominal pain. In a January 2015 VA examination report, a clinician indicated that the Veteran was diagnosed with intestinal neoplasm in 2014, and that this is a fairly rare tumor that was found during an exploratory laparotomy after the Veteran reported abdominal pain and diarrhea. The clinician indicated that the cancer had metastasized to the liver, and that the Veteran will be on monthly medication for the rest of his life. The clinician reported that the Veteran had a history of surgery and was currently undergoing chemotherapy. Moreover, the clinician indicated that the Veteran had developed forgetfulness, and that testing ruled out dementia and Alzheimer's. However, the clinician opined that there was questionable chemotherapy fatigue. The clinician concluded that it is less likely than not that the Veteran's neuroendocrine cancer was incurred in or caused by service, including the Veteran's presumed Agent Orange exposure. This clinician indicated that although neuroendocrine cancer is a rare cancer, it is not considered to be related to Agent Orange exposure. The clinician addressed Dr. B.B.'s July 2014 letter, indicating that it is speculative and that the leading cause of neuroendocrine cancer is genetic mutations. The clinician also noted that genetic or familial predisposition has been identified in most cases and that the Veteran's family history contains cancer but nothing as rare as this one. The clinician indicated that family history is not a factor and that the Veteran did not have an immunocompromising disease. The clinician also listed risk factors for the Veteran's cancer and indicated that medical literature did not support a relationship between neuroendocrine cancer and Agent Orange exposure. The clinician indicated that they considered the Veteran's lay statement that his oncologists told him that this type of cancer occurs mostly in Vietnam war veterans and have asked the Veteran to provide more information. As noted in the November 2019 Board remand, the January 2015 clinician indicated review of "CPRS documentation" included in the Veteran's claims file. The Veteran submitted an August 2016 Science Direct article titled "2,3,7,8-Tetrachlorodibenzo-p-dioxin has both pro-carcinogenic and anti-carcinogenic effects on neuroendocrine prostate carcinoma formation in TRAMP mice." The highlighted portion indicates that the article concerns neuroendocrine prostate cancers and the effects of tetrachlorodibenzo-p-dioxin exposure in mice. The abstract further noted that in utero and lactations exposure significantly increased development of neuroendocrine prostate cancers while chronic treatment in adulthood had the opposite effect. The Board recognizes the findings in this article; however, even the "highlighted portions" contain no expert guidance as to how the findings relate to the specific facts of the Veteran's medical history. As such, the Board assigns diminished probative to the article which is bereft of facts specific to the Veteran. See Guerreri v. Brown, 7 Vet. App. 467 (1993). In May 2021, the Veteran underwent a VA examination for his claim. He reported being diagnosed with neuroendocrine cancer in 2014 and undergoing surgery to have the tumor removed. Under residual conditions due to cancer, the VA examiner noted memory loss from chemotherapy, loss of muscle mass, difficulty eating due to loss of appetite, and dry mouth due to medications. The examiner noted that the Veteran continued chemotherapy treatment and radiation, and that December 2014 computed tomography (CT) of the abdomen and pelvis revealed metastatic lesions in the liver which appeared less defined when compared to a May 2014 study, with no new lesions identified, previously seen small bowel lesions and mesenteric adenopathy no longer being definitively identified, and there being no evidence of metastatic disease in the abdomen or pelvis. The VA examiner concluded that the Veteran's cancer is less likely than not incurred in or caused by service, including Agent Orange exposure, because medical literature does not support a direct associated between neuroendocrine cancer and Agent Orange exposure. The VA examiner indicated that studies show a higher external exposure level to Agent Orange statistically associated with all cancer mortality but not all cancer incidences. The VA examiner further noted that evidence is strongest for lung cancer, soft-tissue cancer, and non-Hodgkin's lymphoma. Pursuant to the August 2021 Board remand, the February 2021 VA medial opinion was inadequate to the extent that it was unclear, did not provide a full rationale for all conclusions reached, and did not discuss the 2016 article submitted by the Veteran. In September 2021, VA produced an addendum medical opinion. The VA examiner indicated that the Veteran was diagnosed with poorly differentiated neuroendocrine cancer of the nasopharyngeal oral cavity in 2004 and that this cancer is not associated with exposure to herbicide agents. With respect to the 2016 article, the VA examiner indicted that it dealt with development of neuroendocrine prostate cancer in mice, and this does not constitute evidence a nexus between Agent Orange exposure and development of the Veteran's specific cancer. With respect to the Veteran's contentions that his oncologists reported this cancer being prominent in Vietnam veterans, the VA examiner indicated that this is a second-hand report, which is anecdotal and not supported by any compelling scientific evidence. The VA examiner provided a negative nexus opinion. Additionally, the Veteran submitted several Board decisions in which other veterans were granted direct service connection for neuroendocrine cancer based upon in-service Agent Orange exposure. However, these decisions are not precedential with respect to instant matter and do not pertain to Veteran's case. Based upon a review of the entire record, the weight of evidence is against the Veteran's claim. The Veteran's endocrine cancer did not have its onset in service, did not manifest to a compensable degree within one year of discharge, and the most probative evidence of record weighs against finding that the Veteran's cancer is otherwise causally related to his service, including presumed in-service exposure to Agent Orange. Therefore, entitlement to service connection must be denied. The record on appeal shows that the Veteran's neuroendocrine carcinoma was not present during the Veteran's active service, nor did it manifest to a compensable degree within one year of separation from active duty. Rather, the record shows that the Veteran's cancer was not diagnosed until 2014, over forty-five years after discharge. The Veteran does not contend otherwise. Although neuroendocrine carcinoma was not present during service or for many years thereafter, as noted, service connection may be granted for a 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). With respect to a nexus, the July 2014 letter from Dr. B.B. states that Agent Orange exposure may be the cause of the Veteran's cancer. The July 2014 letter is not afforded probative value. While Dr. B.B. indicates that Agent Orange exposure could be the cause of the Veteran's cancer, they also state that there is no way to conclusively determine whether it the cause. Thus, the letter is inconclusive and speculative. Moreover, Dr. B.B. did not provide any rationale for the contention that Agent Orange may be the causative factor for the Veteran's cancer. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25 (a medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (a medical report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). Additionally, it is contradicted by the January 2020 VA examination report which indicates that current medical literature does not support a finding that exposure to Agent Orange is etiologically related to skin cancer. The January 2015 and February 2021 VA medical opinions are the most probative medical evidence of record. Both VA examiners reviewed the Veteran's history and addressed specific etiology. Risk factors with respect to the Veteran's cancer were also discussed. Moreover, these expert clinicians provided robust, evidence-infused rationales for all conclusions reached. The February 2021 VA opinion erroneously notes that the Veteran was diagnosed with nasopharyngeal oral cavity in 2004 instead of small bowel neuroendocrine cancer with metastasis in 2014. This appears to be a harmless typographical error as the February 2021 VA examination report correctly contains the Veteran's 2014 cancer diagnosis in all relevant earlier portions. This error is harmless as the material facts of the VA examiner's opinion remained the same. For example, Agent Orange has not been shown to be a risk factor for developing neuroendocrine cancer, and the Veteran's cancer did not develop until over 45 years after service. As the January 2015 and February 2021 VA medical opinions provide a full rationale for all conclusions reached and are supported by the Veteran's medical records, they are afforded significant probative weight. Although the Veteran sincerely believes that his neuroendocrine cancer is causally related to service, under the facts of this case, as a lay person, he does not have the requisite medical expertise to be able to render a competent opinion regarding the cause of the complex skin cancer disability. The etiology of the neuroendocrine cancer in question is a medical question dealing with the origin and progression of cancer, which is diagnosed on objective clinical findings and specialized testing. Thus, while the Veteran is competent to relate the presence of risk factors for cancer, under the specific facts of this case, he is not competent to opine on whether there is a link between the current, specifically diagnosed cancer and active service because such an opinion regarding causation requires specific medical knowledge and training. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011)/ In summary, the most probative evidence of record establishes that neuroendocrine carcinoma was not present during active service nor did it manifest to a compensable degree within one year of discharge from active duty. Additionally, the most probative medical evidence of record weighs against the finding that the Veteran's post-service neuroendocrine carcinoma is causally related to his active service or to any incident therein, to include legally presumed exposure to Agent Orange. Moreover, the Veteran does not assert that he had any other medical conditions or injury in service, to which the neuroendocrine cancer is linked. As the preponderance of the most probative evidence weighs against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. 2. Entitlement to service connection for gynecomastia, to include secondary to neuroendocrine cancer. 3. Entitlement to service connection for cognitive impairment, to include secondary to neuroendocrine cancer. 4. Entitlement to service connection for gastrointestinal disorder, to include secondary to neuroendocrine cancer. The Veteran contends that he has gynecomastia, cognitive impairment, and gastrointestinal disorder are proximately due to, or aggravated beyond natural progression by his neuroendocrine cancer. The Veteran has not presented an alternative theory of entitlement in this case. However, pursuant to the instant decision, service connection for neuroendocrine cancer has been denied. In order ot receive compensation for secondary service connection, the aggravating disability must be service connected. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). In sum, the Veteran's gynecomastia, cognitive impairment, and gastrointestinal disorder did not have their onset in service, did not manifest to a compensable degree within one year of discharge, and are not otherwise causally related to service. Accordingly, the preponderance of the evidence is against the claims for service connection, and the benefit-of-the-doubt rule enunciated in 38 U.S.C. §5107(b) is not for application. B. J. KOMINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kseniya Kuksova 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.