Citation Nr: A21019960 Decision Date: 12/15/21 Archive Date: 12/14/21 DOCKET NO. 200827-106573 DATE: December 15, 2021 ORDER Entitlement to service connection for gastrointestinal stromal tumors (GIST tumors), claimed as secondary to herbicide agent exposure, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to service connection for anemia is granted, subject to controlling regulations governing the payment of monetary awards. REMANDED Entitlement to service connection for a heart disability, claimed as coronary artery disease, is remanded. FINDINGS OF FACT 1. The Veteran served on the ground in Vietnam and it is presumed that he was exposed to herbicide agents. 2. The Veteran's currently diagnosed gastrointestinal stromal tumor is presumed to be related to his exposure to herbicide agents. 3. The Veteran's currently diagnosed anemia is etiologically related to his now service-connected GIST. CONCLUSIONS OF LAW 1. The criteria to establish entitlement to service connection for GIST, as due to herbicide agent exposure, have been met. 38 U.S.C. §§ 1110, 1116A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309. 2. The criteria to establish entitlement to service connection for anemia on a secondary basis, have been met. 38 U.S.C. §§ 1110, 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from June 1965 to March 1969. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. This decision has been written consistent with the new AMA framework. This matter is on appeal from a September 2019 rating decision. In August 2020, the Veteran timely appealed this decision to the Board by requesting the AMA Hearing lane (which allows the Veteran to testify before a Veterans Law Judge and submit evidence within 90 days of the hearing before the Board decides his appeal). In August 2021, the Veteran testified at a Virtual Hearing before a Veterans Law Judge of the Board. A transcript of the hearing is associated with the record. In the September 2019 decision, the Agency of Original Jurisdiction stated that the evidence shows that the Veteran performed service in the Republic of Vietnam with presumed exposure to herbicides. The Board is bound by these favorable findings. 84 Fed. Reg. 138, 167 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 3.104 (c)). Service Connection Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, certain diseases, such as malignant tumors and primary anemia, are presumed to have been incurred in service if manifested to a compensable degree within one year after service. The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116 (a)(1). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307 (a)(6)(ii). For veterans presumed to have been exposed to herbicides, certain enumerated diseases shall be service connected even though there is no record of such disease during service, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The enumerated diseases which are deemed to be associated with herbicide exposure include soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). Soft-tissue sarcoma includes the following: Adult fibrosarcoma, dermatofibrosarcoma protuberans, malignant fibrous histiocytoma, liposarcoma, leiomyosarcoma, epithelioid leiomyosarcoma (malignant leiomyoblastoma), rhabdomyosarcoma, ectomesenchymoma, angiosarcoma (hemangiosarcoma and lymphangiosarcoma), proliferating (systemic) angioendotheliomatosis, malignant glomus tumor, malignant hemangiopericytoma, synovial sarcoma (malignant synovioma), malignant giant cell tumor of tendon sheath, malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas, malignant mesenchymoma, malignant granular cell tumor, alveolar soft part sarcoma, epithelioid sarcoma, clear cell sarcoma of tendons and aponeuroses, extraskeletal Ewing's sarcoma, congenital and infantile fibrosarcoma, and malignant ganglioneuroma. 38 C.F.R. § 3.309(e). Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). The requirement of a current disability is satisfied when the Veteran has a disability at the time he files his service connection claim or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, when the record contains a recent diagnosis of disability prior to the Veteran's filing of a claim for benefits based on that disability, the report of the diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time of the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 49 (1990); Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018); Wait v. Wilkie, 33 Vet. App. 8, 17 (2020). 1. Tumors The Veteran contends that he has a gastrointestinal stromal tumor (GIST) that is related to herbicide agent exposure during service. The service treatment records (STRs) are void of findings, complaints, symptoms, or any diagnosis related to a GIST. Post-service, on July 2019 VA stomach and duodenal conditions Disability Benefits Questionnaire (DBQ) examination the examiner noted that a May 2019 CT scan of the chest indicated a focal nodular mass in the lesser curvature of the stomach. This was suspicious for a gastrointestinal stromal tumor. The examiner diagnosed stromal tumor with areas of classification with an onset four years ago. In a September 2019 private medical opinion Dr. M.L. indicated that he reviewed the Veteran's medical history and noted the circumstances and events of his service, including herbicide agent exposure. The Veteran had been under his care since May 2019. The surgeon diagnosed gastrointestinal stromal tumor of the stomach, unspecified site for which the Veteran had no other known risk factors that may have precipitated his current disability. Based on a review of the pertinent records, the surgeon opined that it is highly likely that the Veteran's GIST is a direct result of herbicide agent exposure. The rationale, in part, was that according to medical literature and studies his tumor is more likely associated with his prior herbicide agent exposure. There are no contrary opinions of record. As the Veteran is presumed to have been exposed to herbicide agents and has been shown to have a soft-tissue sarcoma, which is subject to presumptive service connection, and resolving all benefit of the doubt to the Veteran, the Board finds that presumptive service connection for a gastrointestinal stromal tumor is met. The nature and extent of this disability caused by service is not currently before the Board. 2. Anemia The Veteran contends that he has anemia secondary to his GIST. The STRs are void of findings, complaints, symptoms, or any diagnosis related to anemia. Post-service, VA treatment records include a diagnosis of anemia since February 2018. These records also indicate a diagnosis of unspecified anemia. Private treatment records include a May 2019 report which indicates a diagnosis of symptomatic anemia due to GI hemorrhage. A May 2019 operate report indicates a diagnosis of severe, symptomatic anemia requiring transfusions in a patient who was noted with a gastric mass by CAT scan. On July 2019 VA stomach and duodenal conditions DBQ examination the examiner noted that anemia was indicated as a sign due to the diagnosed stomach disability, as the Veteran developed anemia due to the stromal tumor. However, a current diagnosis of anemia was not warranted at that time because the Veteran's lab results were improving following the removal of the tumor. On July 2019 VA hematologic and lymphatic conditions DBQ examination the examiner explained that the treatment for anemia of chronic disease is to treat the associated disease which was done through the removal of stomach cancer. The examiner reiterated that the diagnosis of anemia was not warranted at that time. However, since the record indicates a diagnosis of anemia one month prior to the Veteran's filing of the claim of service connection for anemia, the Board finds that a current disability existed at the time of the claim was filed or during its pendency. McClain, supra. Accordingly, the Board finds that service connection for anemia, on a secondary basis, is warranted. Further discussion of the evidence is simply not warranted. Since service connection for the Veteran's anemia is being granted on a secondary basis, there is no need to consider the theory of direct service connection. The nature and extent of the Veteran's anemia caused or aggravated by the now service-connected gastrointestinal stromal tumor, is not currently before the Board. REASONS FOR REMAND Heart disability Under the AMA framework, when there are pre-decisional duty-to-assist errors, it is permissible for the Board to have them corrected before deciding the claims on appeal. The Veteran's appeal as to the issue of service connection for a heart disability vis remanded to correct duty-to-assist errors that occurred prior to the September 2019 rating decision on appeal. The Veteran contends that he has a heart disability related to herbicide agent exposure during service. On July 2019 VA heart conditions DBQ examination the examiner diagnosed valvular heart disease and atrial fibrillation of unknown etiology. However, the examiner failed to provide an opinion as to whether the claimed heart disability is related to the Veteran's service, including herbicide agent exposure. Due to the deficiencies of the July 2019 VA examination, remand is warranted to obtain an addendum opinion to address whether the Veteran's heart disability is related to his service. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matter is REMANDED for the following action: Obtain an appropriate medical opinion by an appropriate VA medical professional regarding the nature and etiology of the Veteran's claimed heart disability. Unless the examiner finds that a new examination is required, the Veteran need not be examined again. The claims file, including a copy of this remand, must be made available to the examiner for review who should indicate that the claims file was reviewed. The examiner should provide the following opinion(s): Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's heart disabilities had onset in or are etiologically-related to the Veteran's active duty service, including herbicide agent exposure? The examiner is asked to consider and discuss as necessary the pertinent evidence of record to include the Veteran's lay statements and complaints concerning the onset of his heart disabilities, including those made to medical providers and as noted during August 2021 Board hearing testimony. The Board, by this remand, makes no determination, expressed or implied, concerning the credibility of any statements on file. The addendum should include the complete rationale for all opinions expressed. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Adams, 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.