Citation Nr: 21075451 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 18-42 004 DATE: December 20, 2021 ORDER Entitlement to service connection for a neuroendocrine tumor is denied. FINDING OF FACT A neuroendocrine tumor is not related to service or a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a neuroendocrine tumor are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a veteran (the Veteran) who had active duty service from March 1991 to September 1995. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2021 Order of the United States Court of Appeals for Veterans' Claims (Veterans Court). The appeal originated from a May 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a January 2020 decision, the Board denied this claim. The Veteran appealed that decision to the Veterans Court. In a February 2021 Order, pursuant to a Joint Motion for Remand, the Veterans Court vacated the Board's decision and remanded this issue to the Board for additional development consistent with the Joint Motion. In July 2021, the Board remanded this appeal for additional evidentiary development. The appeal has since been returned to the Board for further appellate action. Service Connection Laws and Regulations VA law provides that, for 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, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131. Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Saunders v. Wilkie, 886 F.3d 1356 (2018). Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310. For specific enumerated diseases designated as "chronic" there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a) Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Shinseki, 21 Vet. App. 303, 311 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ('sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer'); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Entitlement to service connection for a neuroendocrine tumor. The Veteran contends that he is entitled to service connection for a neuroendocrine tumor, to include as secondary to service-connected Crohn's disease with inflammatory bowel syndrome (IBS) and medications associated with his service-connected disability. Service treatment records reveal no complaints, treatments, or diagnoses directly pertinent to the claim. The Veteran was treated in 1995 for recurrent melena (bloody stool), vomiting and gastrointestinal pain. The Veteran was separated from active duty service in September 1995. He filed the current claim in October 2016, more than 20 years later. Service connection is in effect for Chron's disease. Private treatment records show the Veteran was not diagnosed with a neuroendocrine tumor of the small bowel until July 2016. He underwent surgery to remove the tumor in September 2016. In support of the claim, the Veteran's representative submitted a response to statement of the case (SOC) in October 2018. The representative stated that a research article written by Dutch physicians and published in the International Journal of Cancer shows that people with Crohn's disease are at a higher risk of contracting neuroendocrine tumors. The key finding among the participants in the study was that colonic neuroendocrine tumors were more prevalent in inflammatory bowel disease patients compared with the general population. Further in the article, the authors note that neuroendocrine tumor risk in inflammatory bowel disease patients has been poorly investigated and reported results are variable, noting the contradicting results in separate studies. A VA medical opinion was provided in July 2019. The examiner confirmed that an in-person examination was conducted, and that the Veteran's file was reviewed. The examiner included in the report a thorough summary of the Veteran's bowel related symptoms and diagnoses during and since service. He noted that the primary cause of neuroendocrine tumors is genetic mutation, either inherited or sporadic. The examiner opined that it is less likely as not that the Veteran's neuroendocrine tumor had its onset in service or is otherwise the result of an incident during service. As rationale, the examiner explained that while a colonoscopy from June 1994 showed an eosinophilic granuloma, it was unlikely that the carcinoid tumor found in 2016 was misconstrued in 1994 as the granuloma due to the differences in pathology. The examiner found no evidence to suggest with 50 percent or greater probability that the Veteran's carcinoid was diagnosed on any pathologic specimen obtained during service. The examiner also provided an opinion regarding whether the Veteran's neuroendocrine tumor is related to or aggravated by his service-connected Crohn's disease with irritable bowel syndrome and/or associated medications. He opined that it is less likely than not that the Veteran's neuroendocrine tumor was caused or aggravated by his Crohn's disease, to include any medications. The examiner explained that he found no evidence in the expert literature that demonstrates, with a 50 percent or greater probability, a causal or aggravation relationship between Crohn's disease and a carcinoid. Further, the examiner stated that he discussed the Veteran's case with a colleague who is a gastroenterologist, and his colleague is also unaware of a causal or aggravation relationship between Crohn's disease and carcinoids. The examiner reviewed the medications the Veteran has taken for his bowel conditions since July 2007, specifically Mesalamine, Remicade and Mercaptopurine (6-MP). He noted that the VA online reference information does not mention carcinoid as a side effect to any of those medications, nor are they aggravating for a carcinoid. Additionally, the examiner stated that the Veteran was prescribed Colestipol after the tumor diagnosis, and he found no evidence to suggest it would cause or aggravate a carcinoid. The Board denied the claim in January 2020. In the Joint Motion, the parties agreed that several pieces of evidence needed to be addressed. The Veteran submitted an article from the International Journal of Cancer: https://onlinelibrary.wiley.com/doi/pdf/10.1002/ijc.30096, which discusses the prevalence of colonic neuroendocrine tumors in patients with inflammatory bowel disease. The parties also cited an August 22, 2016, private treatment record showing a nodule in the distal ileum, approximately 40 centimeters proximal to the ileocecal valve, and this finding's relationship to the findings of the cited article. The Board remanded the claim in July 2021 to obtain an opinion from a gastrointestinal oncologist addressing this evidence. A VA oncology examination in October 2021 reveals the examiner's opinion that the Veteran's neuroendocrine tumor is less likely than not related to his service, to include the service treatment record entries for repeated abdominal pain and recurrent melaena, recurrent Mallory Weiss tear, and recurrent vomiting. The rationale was that the Veteran had recurrent left upper quadrant abdominal pain associated with vomiting. Recurrent vomiting can cause a Mallory Weiss tear at the esophagogastric junction, which would also produce melena. The carcinoid tumor was found in the distal ileum, which is in the lower abdomen. The upper abdominal pain and vomiting were felt to be functional. A slowly growing localized tumor in the ileum would not produce these upper GI symptoms. The examiner also opined that it is less likely than not that the Veteran's neuroendocrine tumor was proximately due to his service-connected Crohn's disease with claimed IBS. The rationale was that there is no evidence in the expert literature to suggest that Crohn's disease causes neuroendocrine tumors. The 2016 article in the International Journal of Cancer provides no support for the claim. It discusses almost entirely colonic neuroendocrine tumors (NET). The Veteran's tumor was found in the small bowel. Only 3 of the 51 NET locations (6%) were noted to be in "the ileocecal region" and which, if any, were in the ileum only is not stated. In fact, it says that the higher rate of NET prevalence is due to incidental findings of the frequency of surgery. When compared to the prevalence among patients who receive surgery for ischemia or diverticulitis, the rate is actually lower. The first paragraph of the author's discussion states: "The key finding of this study is an increased colonic NET prevalence in inflammatory bowel disease (IBD) patients in comparison with the general population with a prevalence between 2.8 and 4.1. However, adjusted for resection type, gender and age, a lower NET prevalence was shown in IBD patients." "IBS" stands for irritable bowel syndrome, not inflammatory bowel disease. This is erroneously entered by the Fox Chase Surgical Oncologist 8/22/16, who also misstates the time of onset of the Veteran's GI symptoms as 1997 and states that his multiple colonoscopies "were inconclusive." The Fox Chase Medical Oncology consultation (5/23) correctly identified the Veteran's condition as Crohn's disease "dx during time in the military" Also see 7/24/19 review of the multiple positive pathology specimens beginning in 1994. The examiner also opined that it is less likely than not that the Veteran's neuroendocrine tumor was aggravated beyond its natural progression by his service-connected Crohn's disease. The rationale was that "with IBS" does not apply to this Veteran. His records demonstrate no documentation of irritable bowel syndrome. The specific location of the neuroendocrine tumor (NET) was clearly identified as being in the terminal ileum and that it was the cause of the Veteran's GI bleeding documented by his Fox Chase physicians. As discussed above, the article cited provides no proof to support the claim. It specifically discusses colonic NET, not ileal NET. Furthermore, it suggests that the relationship between IBD and colonic NET is an artifact of sampling frequency, and that other GI conditions with frequent surgery have an even higher frequency of such incidental findings. In regard to the August 22, 2016, private treatment record, regarding a nodule in the distal ileum, the examiner commented that only 3 of the 51 NET locations (6%) were noted to be in "the ileocecal region" and which, if any, were in the ileum only is not stated. These cases are included with the colonic cases and the conclusions above that these are incidental findings, not explained by causation, apply to these as well. Again, the term IBS is incorrect. The examiner concluded that, while there is a remote possibility that the Veteran's carcinoid NET was slowly growing over years, the probability is far less than the 50% probability required by VA standards. There is no evidence in the expert literature or the examiner's professional experience to suggest that a claim of 50% or greater probability ("at least as likely as not") would be anything other than mere speculation. Nor is there any evidence to suggest that it was due to or aggravated by his service connected Crohn's disease, which was noted to be quiescent in June 2016 (David S Weinberg MD 6/20/16 note) and for the two prior years as documented in Dr. Weinberg's notes. After a review of all of the evidence, the Board finds that the criteria for entitlement to service connection for a neuroendocrine tumor are not met. The Board notes initially that it is unclear what diagnoses are actually service-connected in this case. The agency of original jurisdiction has denied service-connected for irritable bowel "syndrome," but granted service connection for irritable bowel "disease." Irritable bowel disease does not appear to be a commonly used term in the medical literature. Inflammatory bowel disease is a commonly accepted diagnosis, as is irritable bowel syndrome; however, inflammatory bowel disease is not noted in the most recent rating code sheet as having been granted or denied. The diagnostic code applied in the denial is actually for irritable colon syndrome. The service-connected disability is actually rated as a hiatal hernia. In any event, the question is simply whether the service-connected disability, in any of its manifestations, caused the Veteran's neuroendocrine tumor. In light of the findings of the VA examiner, which discount the applicability of the article submitted by the Veteran to the facts of his particular diagnosis, the Board finds that the article carries less probative weight than the opinion of the October 2021 VA examiner. As that examiner found, to the extent there is an increased prevalence of cancer in individuals with bowel disorders, it does not meet the standard of at least as likely as not. In written argument, the Veteran's representative has questioned the examiner's opinion by essentially redefining the standard of proof as something substantially less than 50 percent. There is no judicial support for this lowered standard of proof. The Board notes that a medical article or treatise can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discussed generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. See Sacks v. West, 11 Vet. App. 314 (1998); see also Wallin v. West, 11 Vet. App. 509 (1998). In this case, however, the medical text evidence submitted by the appellant is not accompanied by the medical opinion of a medical professional. Additionally, it fails to demonstrate with any degree of certainty a relationship between the Veteran's service-connected Chron's disease or an in-service injury or disease and his incurrence or aggravation of his neuroendocrine tumor. For these reasons, the Board must find that the medical text evidence does not contain the specificity to constitute competent evidence of the claimed medical nexus. See Sacks, 11 Vet. App. at 317; see Libertine, 9 Vet. App. at 523. While the Veteran is competent to report lay observable symptomatology, and medical records show that he experienced symptoms associated with his Chron's disease since service, the Veteran is not competent to provide a nexus opinion in this case with regard to the etiology of his neuroendocrine tumor. This issue is medically complex, as it requires specialized medical knowledge and training. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the October 2021 medical opinion, which is based on a thorough review of the record and included detailed rationale in support of all findings and determinations. As the evidence does not substantiate, to a 50 percent probability, a relationship between the neuroendocrine tumor and service, or a service-connected disability, the Board concludes that service connection for the neuroendocrine tumor is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38U.S.C. §5107 (b); 38C.F.R. §3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Cramp 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.