Citation Nr: 21074964 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-13 666 DATE: December 16, 2021 ORDER Entitlement to service connection for neuroendocrine carcinoma is denied. Entitlement to service connection for liver cancer is denied. REMANDED Entitlement to service connection for a thyroid disorder is remanded. Entitlement to service connection for tremors is remanded. Entitlement to service connection for gout is remanded. Entitlement to service connection for a kidney disorder is remanded. FINDING OF FACT The Veteran's diagnosed neuroendocrine carcinoma, which has been metastatic to the liver, first manifested many years after service and is not related to active duty service, to include herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for neuroendocrine carcinoma, to include as secondary to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for liver cancer, to include as secondary to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from March 1969 to December 1970. The Board notes that additional claims, including entitlement to an earlier effective date for the grant of service connection for diabetes mellitus, have been docketed under the modernized review system, also known as the Appeals Modernization Act (AMA), and will be addressed in a subsequent Board decision. Service Connection 1. Entitlement to service connection for neuroendocrine carcinoma 2. Entitlement to service connection for liver cancer. Service connection will be granted if the Veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. To establish service connection, the evidence must show competent evidence of (1) a present disability, (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, such as a malignant tumor, may be presumed to be service connected if manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The law also establishes a presumption of entitlement to service connection for certain disorders if exposed to certain herbicide agents. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e), if manifested to a compensable degree at any time after active service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6)(ii). Presumptive service connection refers to primary cancer cite and not metastatic sites. Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober 120 F. 3d. 1239 (Fed. Cir. 1997); writ of cert den. 522 U.S. 1151, 140 L Ed. 2d 181, 118 S. Ct. 1171 (1998). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the veteran. 38 U.S.C. § 5107(b). The Veteran currently has diagnoses of neuroendocrine carcinoma and liver cancer. See April 2021 VA Examinations; April 2012 and December 2011 Private Medical Records. He served in combat in the Republic of Vietnam and is presumed exposed to herbicides. In February 2021, a VA oncologist reviewed the Veteran's claims file and evaluated these claims. The oncologist determined that the Veteran's neuroendocrine carcinoma is less likely than not related to service or to herbicide exposure based on a review of the treatment records, noting the initial bowel complaint occurred in 1997, 20 years after service, and the initial diagnosis occurred in 2011, over 30 years after service. The oncologist also opined that the medical literature does not propose or support any link between neuroendocrine carcinoma and herbicide exposure. Additionally, the February 2021 VA oncologist opined that the Veteran did not have liver cancer, but did have malignant lesions of the liver that had metastasized from the Veteran's neuroendocrine carcinoma. April 2012 and December 2011 private medical records also indicate that the Veteran's liver lesions are secondary to the neuroendocrine carcinoma. The February 2021 VA oncologist determined, therefore, that the liver lesions are less likely than not related to service. In this case, the February 2021 VA oncologist's opinion is the best evidence of record regarding the nature and etiology of the Veteran's neuroendocrine carcinoma and liver cancer, determining that they are less likely than not related to active duty service or herbicide exposure. There are no other opinions of record related to this issue. The Board acknowledges the Veteran's allegations that his neuroendocrine carcinoma and liver cancer were related to his in-service exposure to herbicide. As a lay person, however, the Veteran is not competent to provide a diagnosis and/or a medical opinion as to the relationship between any cancer and in-service exposures. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, in the absence of medical evidence, the Veteran's unsubstantiated and conclusory statements are not sufficient to establish a nexus. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Furthermore, as indicated above, the February 2021 VA oncologist competently determined that these conditions are less likely than not related to service or herbicide exposure. As such, the Board affords these contentions no probative value. Based on the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran's neuroendocrine carcinoma and liver cancer manifested during active service or within one year of service or was otherwise related to active duty service, to include herbicide exposure. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b). Accordingly, entitlement to service connection for neuroendocrine carcinoma and liver cancer is denied. REASONS FOR REMAND 1. Entitlement to service connection for a thyroid disorder is remanded. 2. Entitlement to service connection for tremors is remanded. 3. Entitlement to service connection for gout is remanded. 4. Entitlement to service connection for a kidney disorder is remanded. Subsequent to the Board's March 2020 remand, the Agency of Original Jurisdiction (AOJ) obtained VA examinations concerning the Veteran's claims of entitlement to service connection for a thyroid disorder, tremors, gout, and a kidney disorder. The April 2021 VA examiner confirmed diagnoses of thyroid disorders, including residuals of a thyroidectomy; tremors; gout; and kidney stones and a kidney cyst. In determining that these disorders are less likely than not related to service, the examiner opined that service treatment records did not reflect treatment for these disorders and available evidence cannot establish a nexus. These opinions are inadequate for rating purposes. The examiner did not provide any rationale for the opinions expressed, and did not address the Veteran's conceded exposure to herbicides as instructed by the Board's March 2020 remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Further, the Board notes that the April 2021 examiner noted that the Veteran underwent a thyroidectomy to remove a tumor in 1976, but provided no opinion as to whether that tumor is etiologically related to herbicide exposure. Finally, the Board has constructive possession of National Academies of Sciences, Engineering & Medicine's (NAS) report, Veterans and Agent Orange: Update 2014 (10th Biennial Update 2016) (NAS Update 2014), indicating an association between thyroid conditions and herbicide exposure. On remand, the AOJ should obtain additional VA medical opinions that address whether these disorders are etiologically related to service, including herbicide exposure, and provide adequate rationales for those opinions. Additionally, the VA medical opinion addressing the Veteran's thyroid disorders should specifically address whether the thyroid tumor removed during the 1976 thyroidectomy was etiologically related to service, and address the updated NAS report. The matters are REMANDED for the following action: 1. Obtain VA treatment records since October 2020 and associate them with the claims file. 2. Forward the Veteran's claims file to a qualified VA examiner for an opinion addressing the nature and etiology of the nature and etiology of any diagnosed thyroid disorder, tremors, gout, and kidney disorder to include kidney stones. The examiner must answer the following questions: (a) Is it at least as likely as not (i.e., probability of 50 percent or greater) that any diagnosed thyroid disorder began in service, was caused by service, or is otherwise etiologically related to active duty service, to include exposure to herbicides? In answering this question, the examiner should specifically address the thyroidectomy to remove a tumor in 1976, and the National Academies of Sciences, Engineering & Medicine's (NAS) report, Veterans and Agent Orange: Update 2014 (10th Biennial Update 2016) (NAS Update 2014), indicating an association between thyroid conditions and herbicide exposure. (b) Is it at least as likely as not (i.e., probability of 50 percent or greater) that any diagnosed tremors began in service, was caused by service, or is otherwise etiologically related to active duty service, to include exposure to herbicides? (c) Is it at least as likely as not (i.e., probability of 50 percent or greater) that any diagnosed gout began in service, was caused by service, or is otherwise etiologically related to active duty service, to include exposure to herbicides? (d) Is it at least as likely as not (i.e., probability of 50 percent or greater) that any diagnosed kidney disorder, including kidney stones, began in service, was caused by service, or is otherwise etiologically related to active duty service, to include exposure to herbicides? If any examinations are needed, they should be scheduled. A complete rationale must be provided for any opinion offered. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Howell, 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.