Citation Nr: 21005413 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 13-00 013A DATE: February 1, 2021 ORDER Entitlement to service connection for left adrenal gland carcinoma (left adrenal gland cancer) is denied. Entitlement to service connection for gastric cancer is denied. FINDINGS OF FACT 1. The Veteran’s left adrenal gland cancer did not have its onset in service or for many years thereafter, and is not otherwise related to service, to include as due to exposure to Agent Orange. 2. The Veteran’s gastric cancer did not have its onset in service or for many years thereafter, and is not otherwise related to service, to include as due to exposure to Agent Orange. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left adrenal gland cancer have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. 2. The criteria for entitlement to service connection for a gastric cancer have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1967 to April 1969. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida which, inter alia, denied service connection for left renal cancer and gastric cancer. In February 2011, the Veteran filed his notice of disagreement, was issued a statement of the case in November 2012, and in January 2013, perfected his appeal to the Board. In February 2015, the Board remanded the Veteran’s claims for VA examinations to determine the forms of cancers affecting the Veteran’s kidneys and stomach, and to determine if the diseases were otherwise directly related to military service, including exposure to Agent Orange. In January 2016, the Board again remanded, among one other thing, the Veteran’s claims for service connection for renal and gastric cancers for an addendum opinion regarding whether the Veteran’s renal and gastric cancers were directly related to military service. In May 2017, the Board remanded, among one other thing, the Veteran’s claims for service connection for renal and gastric cancers for a new VA examination to determine the etiology of the Veteran’s left renal and gastric cancers, finding the previous opinion inadequate. In February 2018, the Board denied the Veteran’s claims for, among one other thing, service connection for left renal cell carcinoma and gastric cancer. The Veteran appealed the Board decision to the Court of Appeals for Veteran’s Claims (Court) which in February 2019 granted a Joint Motion for Remand filed by the parties, vacating and remanding part of the Board’s February 2018 decision finding that the Board failed to ensure that the duty to assist was satisfied in obtaining an adequate medical examination report. The Court found the July 2017 opinions inadequate as the examiner appeared to explain that he did not have sufficient knowledge of the Veteran’s situation to render an opinion as to nexus. In September 2019, the Board remanded the claim to the RO for further development to include new examinations in accordance with the Joint Motion for Partial Remand. In July 2020, the Board remanded the Veteran’s claims for addendum opinions regarding the nature and etiology of the Veteran’s left renal cell cancer and gastric cancer, finding the previous opinions and addendum inadequate as the examiner failed to provide an adequate rationale as to why the Veteran’s diseases were not directly related to service. For the reasons indicated in the discussion below, the opinions that the Board instructed the agency of original jurisdiction (AOJ) to obtain were in fact obtained and are adequate to decide the claims on appeal. Thus, the AOJ complied with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If a veteran was exposed to an herbicide agent, such as Agent Orange, during active service, service connection will be presumed for certain diseases which are listed at 38 C.F.R. § 3.309 (e), if the requirements of 38 C.F.R. § 3.307 (a) are met, even if there is no record of such disease during service. 38 U.S.C. § 1116(f); 38 C.F.R. §§ 3.307(a) (6) (iii), 3.307(e). For purposes of establishing service connection for a disability resulting from exposure to an herbicide agent, veterans who served in the Vietnam between January 9, 1962 and May 7, 1975, are presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 38 U.S.C. § 1116 (f). Gastric and left renal cancer The Veteran stated in his February 2011 notice of disagreement that his conditions are a result of exposure to Agent Orange in Vietnam which he contends laid dormant for years. He stated that he served in Vietnam from May 1968 to April 1969 and was assigned to a mechanized unit which guarded the plows that cleaned the fields. Thus, he spent a lot of time in areas which had been treated with Agent Orange. The Veteran’s DD-214 reflects that his military occupational specialty was as a light weapons infantryman, and that he is a recipient of, among other decorations, the Vietnam Campaign Medal. Additionally, the Veteran’s military personnel record reflects that he participated in the Vietnam counter offensive. Therefore, service in Vietnam has been established and the Veteran is presumed to have been exposed to Agent Orange. The Veteran’s service treatment records do not note any treatment for, or complaints of gastric or left adrenal gland cancer or related symptoms, and his April 1969 medical examination report upon discharge is normal. October 2008 post-service treatment records reflect that the Veteran had diagnoses of, and had undergone treatment for left adrenal gland carcinoma and gastric cancer. In a May 2015 VA examination report, the examining physician noted the Veteran’s 2008 diagnosis of renal and adrenal cancer, and the fact the Veteran had a kidney removal due to renal carcinoma. The physician opined that it is less likely than not (less than a 50 percent probability) that the Veteran’s left renal and gastric cancers are caused by, or a result of Agent Orange, had their onset in active service, or are the result of a disease or injury in service, including presumed herbicide exposure. The physician stated that the Veteran’s left renal cancer and gastric cancer are more likely as not a nonservice related disability as they are not cancers that are presumptive for Agent Orange, and are not caused by, or associated with the military. In a July 2015 addendum opinion, the physician reported that the Veteran’s left renal cancer and gastric cancer are not cancers that are among the diseases associated with exposure to certain herbicide agents. He also opined that it is less likely than not (less than a 50 percent probability) that they had their onset in active service, or are otherwise the result of disease or injury in service, including presumed exposure to Agent Orange. He stated left renal and gastric cancer are not presumptive with Agent Orange exposure, and that gastrointestinal stromal tumor is the type of sarcoma that develops in the digestive tract and is presumptive, but is not the type of gastric cancer with which the Veteran has been diagnosed. In a February 2016 VA examination report, the physician stated that soft tissue sarcomas are presumptive with Agent Orange. However, left renal cancer and gastric cancer are not presumptive with Agent Orange. The examiner opined that the Veteran’s left renal cancer and gastric cancer are less likely as not the result of a disease or injury in active duty service, to include his presumed herbicide exposure. In a March 2016 VA examination note, the physician opined that it is less likely as not that the Veteran’s renal cancer and gastric cancer were the result of a disease or injury in active duty service, to include his presumed expose to herbicide. The physician stated that the Veteran’s military records are silent for any illnesses or diseases that would have caused renal or gastric cancer. In July 2017, the Veteran was afforded another VA examination to determine the nature and etiology of his gastric and left renal cell cancers. The physician stated that it would be only with resort to mere speculation to opine whether or not the Veteran’s renal cell carcinoma is caused or aggravated to any degree by his Agent Orange exposure in Vietnam. The physician noted that the Veteran developed two unrelated cancers (renal and gastric) of different types in a short time from each other, but after many years in a possible latent period following his Vietnam service. He stated that the records did not show that the Veteran was stationed at Camp Lejeune which would have made his renal cancer presumptive from that duty, and that although the exposure of Agent Orange can cause several types of cancer, the current medical literature has yet to establish a cause and effect relationship between Agent Orange and renal cell carcinoma. Therefore, there is still no current objective evidence that the Veteran’s renal cell carcinoma is caused or aggravated to any degree by his Agent Orange exposures in Vietnam. In a separate July 2017 VA examination report, the physician opined that it would be only with resort to mere speculation to opine whether or not the Veteran’s adenocarcinoma of the stomach is caused or aggravated to any degree by his Agent Orange, exposures in Vietnam. The physician noted that the Veteran did not have the risk factors associated with gastric cancer such as smoking, drinking, or chronic gastric symptoms, and also noted that Agent Orange can cause several types of cancer, including gastrointestinal stromal tumors. However, he stated that the current medical literature has yet to establish a cause and effect relationship between Agent Orange and the Veteran’s type of cancer, i.e., adenocarcinoma type of gastric cancer. Therefore, the physician concluded that there is still no current objective evidence that the Veteran’s gastric cancer is caused by, or aggravated to any degree by the Agent Orange exposure. In September 2017, the Veteran submitted a medical treatise entitled “Agent Orange and Cancer” which reflected that few studies have looked at a possible link between Agent Orange exposure and other cancers, including kidney cancers, and that most have not found a link between Agent Orange exposure and gastrointestinal cancers. In a March 2020 VA examination report, the physician opined that the Veteran’s gastric cancer is less likely than not (less than a 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. She stated that there is no evidence of gastric cancer in service, and that renal and stomach cancers are not recognized as conditions related to military herbicide exposures. In an April 2020 VA examination addendum, the physician’s assistant (PA) opined that the Veteran’s gastric and renal cancer conditions are less likely than not (less than a 50 percent probability) related to service since the Veteran’s service treatment records are silent for any of these conditions while in the military, and they are not approved by VA as part of the Agent Orange presumptive list of medical conditions caused by herbicide exposure. In an August 2020 VA medical opinion, the PA opined that the Veteran’s gastric cancer condition is less likely than not (less than a 50 percent probability) related to military service since the Veteran’s service treatment records are silent for any gastric cancer or renal cell cancer diagnosis or symptomatology. He noted that current VA criteria is based upon the current listing of Agent Orange presumptive diseases which does not include adenocarcinoma gastric cancer or renal cell carcinoma. He also noted that current medical literature is inconclusive. The PA reported that the Veteran has a strong history of malignant neoplasms of the gastrointestinal tract, noting that the Veteran’s brother had colon cancer. In a November 2020 VA examination addendum, the PA stated that the Veteran’s renal cell condition is less likely than not (less than a 50 percent probability) related to military service since the Veteran’s service treatment records are silent for any renal cell diagnosis or symptomatology, and noted that the Veteran’s cancers are most probably related to genetic predisposition. Considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for left renal gland cancer and gastric cancer. Initially, the Board notes that neither left renal gland cancer nor gastric cancer is on the list of diseases presumed service connected in veterans exposed to Agent Orange. The July 2015 physician noted that while gastrointestinal stromal tumors are the type which are presumptively caused by Agent Orange, the Veteran’s gastric cancer is not. However, service connection may still be established on a direct basis. See 38 U.S.C. § 1113(b) (2012); 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) (Radiation Compensation Act does not preclude a Veteran from establishing service connection with proof of actual direct causation). In this regard, the March 2020, April 2020, August 2020, and November 2020 examination reports and medical opinions reflect that the Veteran’s left adrenal gland cancer and gastric cancer are less likely than not (less than a 50 percent probability) related to military service including as due to exposure to Agent Orange. While the March 2020 and April 2020 opinions are inadequate as the physician and PA based their opinions on a lack of in-service treatment records which is impermissible, see Dalton v. Nicholson, 21 Vet. App. 23 (2007), and the fact that the Veteran’s left adrenal gland cancer and gastric cancer are not among the cancers which are presumptively due to exposure to Agent Orange, in the August 2020 and November 2020 opinions, the PAs indicate that the Veteran’s cancers are less likely than not (less than a 50 percent probability) due to service, noting the Veteran’s genetic predisposition to such cancers. The August 2020 and November 2020 PAs provided thorough opinions based on an accurate characterization of the evidence of record. Therefore, their opinions are afforded significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There is no contrary medical opinion in the evidence of record and the evidence does not otherwise indicate that the Veteran’s left adrenal gland cancer or gastric cancer is related to Agent Orange exposure or anything else in service. The medical literature submitted is general and does not support a relationship between the Veteran’s cancers and his herbicide agent exposure. See Sacks v. West, 11 Vet. App. 314, 317 (1998) (noting that treatise materials generally are not specific enough to show nexus); Herlehy v. Brown, 4 Vet. App. 122, 123 (1993) (noting that medical opinions directed at specific patients generally are more probative than medical treatises). The Board acknowledges the Veteran’s contention that his left adrenal gland and gastric cancers are due to Agent Orange exposure in service. However, while the Veteran is competent to provide testimony or statements relating to symptoms or facts of events that he has observed and is within the realm of his personal knowledge, he is not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The record does not show, nor does the Veteran contend, that he has specialized education, training, or experience that would qualify him to render a diagnosis or render a medical opinion on this matter. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the issue in this case is outside the realm of common knowledge of a lay person because it involves a complex medical issue that goes beyond a simple and immediately observable cause-and-effect relationship. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). Thus, the Veteran’s statements in this regard are not competent and are afforded no probative weight. In addition, although malignant tumors are chronic diseases for which service connection is warranted if they manifest in service or the one year presumptive period, the above reflects that there is no evidence or argument suggesting such manifestation. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113, 1137; 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a). For the above stated reasons, the preponderance of the evidence weighs against a nexus between the Veteran’s left adrenal gland and gastric cancers and service, and against service connection on any other basis. The benefit-of-the-doubt doctrine is therefore not for application, and the claim for service connection for a left adrenal gland cancer and gastric cancer must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Board is sympathetic to the Veteran and recognizes his distinguished service but is bound by the applicable laws and regulations. 38 U.S.C. § 7104(c) (2012); 38 C.F.R. § 20.105 (2020). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Maddox, 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.