Citation Nr: 21011110 Decision Date: 02/27/21 Archive Date: 02/27/21 DOCKET NO. 15-28 696 DATE: February 27, 2021 ORDER Entitlement to service connection for cancer of the esophagus and stomach, to include as due to Agent Orange and on a secondary basis is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), on an extraschedular basis, is denied. FINDINGS OF FACT 1. The Veteran’s esophagus cancer was not shown in service or for many years thereafter; and the preponderance of the evidence fails to establish that the condition is etiologically related to service, including herbicide exposure or service-connected disabilities of larynx cancer or diabetes mellitus, type II. 2. The Veteran’s service-connected disabilities are not shown to preclude the Veteran from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for neck disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1961 to December 1963, from October 1964 to September 1967, from October 1984 to March 1985, and from December 1991 to September 1994. He passed away in July 2019 during the pendency of the appeal. The Appellant is the surviving spouse of the Veteran who has been substituted following his death. This matter was previously before the Board in December 2016, May 2018 and most recently in December 2020 where it was remanded for additional evidentiary development. 1. Entitlement to service connection for cancer of the esophageal and stomach. The Veteran contends that his claimed cancers of the esophageal and stomach are due to herbicide exposure or otherwise etiologically related to service, and in the alternative, secondary to service-connected larynx cancer. By way of history, the Veteran originally filed his claim in December 2015 for larynx cancer as due to Agent Orange, and esophageal cancer and stomach cancer secondary to larynx cancer or due to Agent Orange. By rating action of June 2016, service connection was granted for larynx cancer on the basis of presumption due to Agent Orange and service connection denied for esophagus and stomach cancer. The Board acknowledges that VA has already conceded exposure to herbicides. With that said, however, the Board notes that the Veteran’s diagnosed squamous cell carcinoma of the esophagus is not listed as a qualifying condition associated with herbicides. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e). As further explained below, the Veteran does not have stomach cancer and his diagnosed squamous cell carcinoma is not a soft tissue sarcoma. See VA medical opinion of June 2016 and January 2021. For instance, soft tissue sarcoma is a cancer arising from connective tissue which is listed as a qualifying condition. In the Veteran’s case, his esophageal cancer is not considered a soft tissue sarcoma, and thus not a qualifying chronic disease associated with exposure to herbicide agents listed in 38 C.F.R. § 3.309(e). Thus, presumptive service connection is not for application here. Notwithstanding that service connection based upon herbicide exposure has not been established, the Board must still consider whether the Veteran’s claimed disabilities are directly related to service or service-connected disabilities. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, the Board finds there is no probative evidence of a nexus between the Veteran’s military service and the development of esophageal cancer or on a secondary basis. The Veteran was afforded VA contract examinations in March 2016 for the claimed esophageal conditions and stomach conditions. The examiner noted the Veteran’s report of onset of symptoms in August 2013 for his esophagus cancer diagnosed in 2014. The examiner remarked esophageal cancer is “asymptomatic at this time.” See Esophageal Conditions Disability Benefits Questionnaire (DBQ) dated March 2016. As to the claimed stomach cancer, the same examiner indicated the claimed stomach cancer was “in remission” status post chemotherapy and radiation, with no current symptoms; the Veteran “no longer has stomach cancer.” See Stomach and Duodenal Conditions DBQ dated March 2016. Similar findings were made by a June 2016 VA physician for esophageal and stomach conditions. Based on a review of the available medical evidence, the VA physician indicated the “veteran does not have stomach cancer.” The Veteran noted that the Veteran’s duodenum and stomach “were normal last EGD”. See Stomach and Duodenal Conditions DBQ dated June 2016. The same VA physician indicated the “veteran’s diagnosed esophageal cancer DOES NOT fall under the generally accepted definition of ‘respiratory cancers’ or under ‘soft tissue sarcoma.’” See Esophageal Conditions DBQ dated June 2016. In compliance with the Board’s May 2018 remand and to address the Veteran’s contention that his cancer of the esophagus and stomach may be related to service-connected diabetes mellitus, the record shows VA contract opinions were obtained in September 2020 for direct and secondary service connection. A September 2020 VA contract physician opined that the claimed cancer of the esophagus and stomach was less likely incurred in or caused by service. In the rationale, the examiner indicated the Veteran was not officially diagnosed with squamous cell carcinoma of the esophagus until January 2014, and although the “exact cause of the esophageal cancer is unknown… squamous cell cancer of the esophagus is related to the use of alcohol and tobacco products.” The physician indicated it is likely that the veteran’s history of alcohol and heavy tobacco use (smokes 1-2 ppd) contributed to its development. See VA contract medical opinion dated September 2020. The same September 2020 VA physician provided an opinion on secondary service connection finding “it is less likely than not that the veteran’s [diabetes mellitus] cause the veterans squamous cell carcinoma of the esophagus.” Similar rationale was provided as to the Veteran’s long history of alcohol and heavy tobacco use since 1990 (1-2 ppd). The physician added that diabetes is not a known risk factor of squamous cell carcinoma of the esophagus. Id. In compliance with the Board’s December 2020 remand, additional medical opinions were obtained in January 2021 for direct and secondary service connection. A January 2021 VA contract physician opined that it is less likely that “the Veteran’s squamous cell carcinoma of the esophagus was caused by military service, including due to herbicide exposure. The Veteran’s squamous cell carcinoma of the esophagus is not one of the cancers on the VA presumptive diagnosis associated with Agent Orange.” In the rationale, the physician acknowledged review of the medical literature provided by the Veteran’s representative, but they do not provide enough support to warrant a different opinion. The physician indicated his opinion was based on review of medical information provided, the medical literature, and the medical articles cited by the Veteran in the electronic claims file. See VA contract medical opinion dated January 2021. In addressing secondary aggravation, the January 2021 VA physician opined that it is less likely that “the Veteran’s squamous cell carcinoma of the esophagus was aggravated by his service-connected diabetes mellitus.” The physician explained that “the high baseline prevalence of diabetes in society and understanding the correlation doesn’t equal causation. Esophageal cancer is not a cancer than [sic] has been loosely associated with diabetes. Squamous cell of the esophagus is not a respiratory cancer or soft tissue sarcoma or one of the forms of cancer that are on the presumptive Agent Orange exposure list.” The physician added that based on “the literature and lack of objective evidence there is no nexus and a less likely than not opinion is warranted.” Id. Based on review of the evidence, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for cancer of the esophageal and stomach. As to stomach cancer, the Board assigns probative value to the combined VA opinions of the March 2016, June 2016, and September 2020 medical professionals who found the Veteran’s stomach cancer “in remission and that he “no longer has stomach cancer”. For the claimed cancer of the esophageal, the Board assigns probative weight to the combined VA opinions of the June 2016, September 2020 and January 2021 VA medical professionals who opined the Veteran’s squamous cell carcinoma of the esophagus was less likely caused by military service, including due to herbicide exposure. The medical professionals indicated that the Veteran’s squamous cell carcinoma of the esophagus, which was not diagnosed until 2014, is not a soft tissue sarcoma and does not qualify as one of the cancers on the VA presumptive diagnosis associated with Agent Orange. Likewise, the Board assigns probative value to the June 2016, September 2020 and January 2021 VA opinions that found it is likely that the Veteran’s squamous cell carcinoma of the esophagus was caused or aggravated by his service-connected larynx cancer or diabetes mellitus. The medical professionals explained that esophageal cancer is not a respiratory cancer or soft tissue sarcoma, and that diabetes is not a known risk factor associated with squamous cell carcinoma of the esophagus. Rather, the medical professionals indicated that the veteran’s long history of alcohol and heavy tobacco use likely contributed to its development. Finally, the Board notes that the March and June 2016, September 2020 and January 2021 medical opinions are based on a comprehensive review of the Veteran’s claims file, consideration of lay evidence of record, and provide well-grounded rationale to support the conclusion. The opinions in particular include explanation of where the expert has fairly considered material evidence which appears to support the Veteran’s position. Therefore, the Board concludes that there is no competent medical evidence relating the current condition diagnosed as squamous cell carcinoma of the esophagus to service or a service-connected disability. Significantly, neither the Veteran nor his representative has presented or identified a medical opinion that supports the claim. The Board recognizes the Veteran’s contentions that his esophageal cancer is related to service or service-connected larynx cancer or diabetes. The Veteran’s statements regarding the cause of his esophageal cancer are lay statements that purport to provide a nexus opinion linking the residuals of a condition to service or service-connected disability. As a lay person, the Veteran lacks the capability to provide evidence that requires specialized knowledge, skill, experience, training or education. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board finds the Veteran’s statements not competent medical evidence for this purpose. Therefore, his assertions, standing alone, have little probative value and the Board assigns more weight to the March and June 2016, September 2020 and January 2021 medical opinions of record. Thus, after weighing all the evidence of record, the Board observes that the objective medical evidence stands uncontradicted by any other evidence found in the record and is significantly probative in determining whether the Veteran has substantiated his claim for service connection. Accordingly, the Board finds service connection is not warranted. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claims for service connection of cancer of the esophagus and stomach. The benefit-of-the-doubt doctrine is not for application, and the claims must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to TDIU on extraschedular basis. By way of history, in May 2013 the Veteran filed his claim for TDIU contending that his service-connected right shoulder disability prevented him from securing or following any substantially gainful employment, this was denied by rating action of January 2014. In a December 2016 decision, the Board remanded for referral of the Veteran’s claim to the Director of Compensation Service for consideration of a TDIU on an extraschedular basis. Thereafter, the record shows that the issue of entitlement to extraschedular TDIU was adjudicated by the AOJ in the first instance. See Supplemental Statement of the Case (SSOC) dated March 2018. As explained below, after a review of the competent evidence of record, the Board finds that entitlement to a TDIU on an extraschedular basis is not warranted. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). If, however, the veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16(a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b); See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, there must be a determination as to whether there are circumstances in this case, apart from any non-service connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent.” Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that “takes the claimant’s case outside the norm” of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. The Board is precluded from assigning an extraschedular rating in the first instance. Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008); see also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Here, the Veteran does not meet the schedular rating criteria for a TDIU. He is service connected for right shoulder, degenerative arthritis at 30 percent; diabetes mellitus, type II at 20 percent; tinnitus at 10 percent; and noncompensable for bilateral hearing loss and larynx cancer; with a combined disability rating of 50 percent effective May 21, 2013. See 38 C.F.R. §§ 4.16(a), 4.25, 4.26. As the Veteran does not meet the applicable percentage standards, the Board must consider whether the Veteran is nevertheless unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. See 38 C.F.R. § 4.16(b). In his formal application (VA Form 21-8940) received in May 2013, the Veteran indicated he worked as a Chemical Operator, last worked full-time in 1998 and became too disabled to work since 2009. He indicated he completed three years of high school education. The record shows a November 2013 VA examination for shoulder and arm conditions. The VA examiner indicated that the Veteran’s right shoulder impacted his ability to “perform physical labor such as lifting, pushing/pulling, reaching, carrying, and overhead work with the right upper extremity.” However, the examiner stated that the Veteran’s right shoulder would have only “a mild to moderate impact on his ability to perform certain aspects of sedentary work such as typing/computer work, as he is right handed. This condition would not impact functions of sedentary labor such as answering the phone or greeting customers.” The record shows the Veteran reported he last worked six years prior as a chef. See report of contact dated July 2015. The record shows a September 2017 VA medical opinion specifically addressing individual unemployability with respect to the Veteran’s right shoulder condition. After in-person examination of the Veteran, the VA physician stated that “it WOULD NOT render him unable to seek/maintain substantially gainful employment, as long as the following restrictions were followed; no overhead use of [right upper extremity] and no overhead lifting… employment in a loosely-supervised setting, or one that requires little interaction with the public IS feasible as long as the previously-specified restrictions were followed.” The record shows a January 2018 administrative review report and a March 2018 Advisory Opinion issued by the Director of Compensation Services. Based on a review of the Veteran’s electronic claims file including medical and lay evidence of record, the Director recommended a denial of entitlement to TDIU on an extra-schedular basis. Both reviewers determined that individual unemployability was not established. A review of the evidence of record, taken in total, does not suggest that the Veteran is unable to obtain or maintain substantially gainful employment solely as a result of his service-connected disabilities, namely his right shoulder disability. As demonstrated above, the November 2013 and September 2017 VA examiners found that the Veteran’s right shoulder disability was not of such severity to render him unable to obtain or maintain substantially gainful employment. Although the examiners described some functional impact on as to physical labor such as overhead lifting and reaching, the examiners consistently indicated that this would only have a “mild to moderate impact” on sedentary work such as typing/computer work, as he is right handed. In fact, the examiners indicated the Veteran’s right shoulder “would not impact functions of sedentary labor such as answering the phone or greeting customers” and “would not render him unable to seek/maintain substantially gainful employment”. Furthermore, in light of the administrative report and Advisory Opinion of the Director, and the analysis herein, it is the Board’s determination that the Veteran was able to obtain or maintain substantially gainful employment. Lastly, the Veteran has also not identified or submitted any competent evidence demonstrating that his service-connected disabilities preclude him from securing and maintaining substantially gainful employment. The rating schedule was created as a guide to evaluating disability resulting from all types of diseases and injuries encountered, and the percentage ratings that are assigned represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Accordingly, TDIU on an extraschedular basis is denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. An, 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.