Citation Nr: 21022904 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 14-41 139 DATE: April 19, 2021 ORDER Entitlement to service connection for bile duct cancer is denied. Entitlement to service connection for pancreatitis, to include as a result of exposure to herbicides or secondary to bile duct cancer is denied. FINDINGS OF FACT 1. The probative medical evidence of record does not show that the Veteran’s bile duct cancer was incurred in service or related thereto, to include exposure to herbicides. 2. The probative medical evidence of record shows that the Veteran’s pancreatitis was the result of his non service-connected bile duct cancer treatment. CONCLUSIONS OF LAW 1. The criteria for service connection for bile duct cancer have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). 2. The criteria for service connection for pancreatitis have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1961 to April 1965. When this case was before the Board in March 2017, April 2020, and December 2020, the above-noted issues were remanded for additional development. The case has since been returned for further appellate review. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Additionally, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). If a condition noted in service is not shown to be chronic, then a showing of continuity of symptomatology after service will be required to establish service connection. 38 C.F.R. § 3.303 (b). However, the theory of continuity of symptomatology to establish service connection, can be used only in cases involving those disorders explicitly recognized as chronic under 38 C.F.R. § 3.309 (a)). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) Additionally, the law provides that, if a Veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type II diabetes; Hodgkin's disease; chronic lymphocytic leukemia; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); ischemic heart disease; Parkinson's disease; hairy cell leukemia; and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309 (e) (2019). For the purposes of § 3.307, the term herbicide agent means a chemical in a herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307 (a)(6)(i). The diseases listed at 38 C.F.R. § 3.309 (e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307 (a)(6)(ii). Here, although the Veteran has conceded exposure to herbicides due to confirmed service in the Republic of Vietnam during the prescribed presumptive period, his claimed disabilities of bile duct cancer and pancreatitis are not included on the list at 38 C.F.R. § 3.309 (e). Nonetheless, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a Veteran who does not meet the requirements of 38 C.F.R. § 3.309 does not preclude him from establishing service connection by way of proof of actual direct causation. Combee v. Brown, 34 F.2d 1039, 1041-42 (Fed. Cir. 1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Bile Duct Cancer The Veteran contends that his bile duct cancer is the result of military service. In particular, the Veteran contends it is the result of his conceded exposure to herbicide agents in service. A review of the Veteran’s service treatment records reveals no complaints or treatment for any cancers, including bile duct cancer. There were no records revealing complaints or treatment within one year of leaving military service as well. A review of the Veteran’s post-service outpatient treatment records shows that he was first diagnosed with bile duct cancer and treated via Whipple procedure in 1988. Records continue to show that the Veteran has been followed for this condition throughout the period of appeal and that he is now in remission. There have been no discussions of etiology or relationship to military service, to include exposure to herbicides. The Veteran was provided with a VA examination in August 2020. At the examination, the Veteran was diagnosed with cholangiocarcinoma, which was noted as bile duct cancer. The examiner opined that the Veteran’s bile duct cancer was less likely than not the result of Agent Orange exposure during military service, as this condition was not on the list of presumptive condition in accordance with 38 C.F.R. § 3.309. An addendum opinion was provided in September 2020. The examiner continued to find that the Veteran’s bile duct cancer was less likely than not caused by or incurred in military service. In particular, it was provided that bile duct cancer is not recognized as being caused by herbicide exposure. An additional addendum opinion was provided in October 2020. The examiner continued to find that the Veteran’s bile duct cancer was less likely than not caused by or incurred in military service. In particular, it was noted that there was no complaints or diagnoses during service and that the Veteran developed his condition many years after military service. Additionally, it was provided that bile duct cancer is not recognized as being caused by herbicide exposure. An additional addendum opinion was provided in January 2021. The examiner continued to find that the Veteran’s bile duct cancer was less likely than not caused by or incurred in military service. In support, the examiner cited to numerous studies showing that there is no link between herbicide exposure and the development of bile duct cancer. Here, the medical evidence of record has not shown any probative opinions that the Veteran's bile duct cancer is the result of military service, to include Agent Orange exposure. Rather, the probative medical evidence of record, to specifically include the VA examination opinions, found that the Veteran's bile duct cancer was not associated with military service to specifically include consideration of Agent Orange exposure. The only statements asserting a relationship to Agent Orange are the Veteran's own lay statements. He, as a lay person, is competent to report an observable symptom. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (finding that the Veteran as a lay person is competent to report information of which he has personal knowledge, i.e., information that he can gather through his senses). However, in this case, the question of whether the Veteran's bile duct cancer is related to his Agent Orange exposure is a complex medical question, not capable of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting that lay witness capable of diagnosing dislocated shoulder); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (discussing that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. 439 (1995) (finding that a lay person is competent to testify to pain and visible flatness of his feet). Indeed, appropriate expertise is required to determine whether the Veteran's bile duct cancer is the result of Agent Orange exposure. In this case, the record is silent for any evidence to suggest that the Veteran has the appropriate training, experience, or expertise to render such findings. See 38 C.F.R. § 3.159 (a)(1) (2019) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Thus, while the Veteran is competent to report what he experiences, he is not competent to ascertain the etiology of his bile duct cancer, as this is not readily subject to lay observation. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Accordingly, in this case, the Board assigns greater weight to the competent medical evidence, specifically the VA examiner’s findings that the etiology of the bile duct cancer developed independently of military service or exposure to Agent Orange, than the Veteran's lay statements. No other in-service event, injury, or disease has been shown for a finding of direct service connection. Rather, the Veteran's service treatment records were negative for any showing of bile duct cancer, as were any medical documentation of it within one year of leaving military service. As such, service connection on a direct basis is not warranted. For the foregoing reasons and bases, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for bile duct cancer and the benefit-of-the doubt standard of proof does not apply. 38 U.S.C. § 5107 (b) (2019). Thus, the claim must be denied. 2. Pancreatitis The Veteran contends that his pancreatitis is the result of military service. In particular, the Veteran has indicated that such is the result of his conceded exposure to herbicides in service as well as secondarily related to his bile duct cancer. A review of the Veteran’s service treatment records reveals no complaints or treatment for pancreatitis during service. There were no records revealing complaints or treatment within one year of leaving military service as well. A review of the Veteran’s post-service outpatient treatment records shows that he was diagnosed with pancreatitis in March 2010. Although it was initially listed as acute, the Veteran has continued to be treated for this condition throughout the period of appeal. Treatment records reveal no discussions of etiology or relationship to military service, to include exposure to herbicide agents. The Veteran was provided with a VA examination in August 2020. At the examination, the Veteran was diagnosed with pancreatitis. The examiner opined that the Veteran’s pancreatitis was less likely than not the result of Agent Orange exposure during military service, as this condition was not on the list of presumptive condition in accordance with 38 C.F.R. § 3.309. Rather, the examiner found that the most likely cause of the pancreatitis was the Whipple procedure performed to treat the Veteran’s bile duct cancer in 1988. An addendum opinion was provided in September 2020. The examiner continued to find that the Veteran’s pancreatitis was less likely than not caused by or incurred in military service. In particular, it was provided that pancreatitis is not recognized as being caused by herbicide exposure. Rather, the examiner found that the most likely cause of the pancreatitis was the Whipple procedure performed to treat the Veteran’s bile duct cancer in 1988. An additional addendum opinion was provided in October 2020. The examiner continued to find that the Veteran’s pancreatitis was less likely than not caused by or incurred in military service. In particular, it was noted that there was no complaints or diagnoses during service and that the Veteran developed his condition many years after military service. Additionally, it was provided that pancreatitis is not recognized as being caused by herbicide exposure. Rather, the examiner found that the most likely cause of the pancreatitis was the Whipple procedure performed to treat the Veteran’s bile duct cancer in 1988. An additional addendum opinion was provided in January 2021. The examiner continued to find that the Veteran’s pancreatitis was less likely than not caused by or incurred in military service. In support, the examiner cited to numerous studies showing that there is no link between herbicide exposure and the development of pancreatitis. Rather, the examiner found that the most likely cause of the pancreatitis was the Whipple procedure performed to treat the Veteran’s bile duct cancer in 1988. Here, the medical evidence of record has not shown any probative opinions that the Veteran’s pancreatitis is the result of military service, to include Agent Orange exposure. Rather, the probative medical evidence of record, to specifically include the VA examination opinions, found that the Veteran’s pancreatitis was not associated with military service to specifically include consideration of Agent Orange exposure. Rather, the opinions found that the Veteran’s pancreatitis was most likely the result of the Whipple procedure used to treat his non service-connected bile duct cancer. As no other service-connected disabilities have been shown as a potential nexus to the pancreatitis, the issue of secondary service connection does not materialize and the claim on that basis is denied. The only statements asserting a relationship to Agent Orange are the Veteran’s own lay statements. He, as a lay person, is competent to report an observable symptom. Layno, 6 Vet. App. at 470. However, in this case, the question of whether the Veteran’s pancreatitis is related to his Agent Orange exposure is a complex medical question, not capable of lay observation. See Jandreau, 492 F.3d at 1376-77; Woehlaert, 21 Vet. App. at 462; Falzone, 8 Vet. App. at 439. Indeed, appropriate expertise is required to determine whether the Veteran’s pancreatitis is the result of Agent Orange exposure. In this case, the record is silent for any evidence to suggest that the Veteran has the appropriate training, experience, or expertise to render such findings. See 38 C.F.R. § 3.159 (a)(1) (2019) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Thus, while the Veteran is competent to report what he experiences, he is not competent to ascertain the etiology of his pancreatitis, as this is not readily subject to lay observation. See Charles, 16 Vet. App. at 374-75; Layno, 6 Vet. App. at 470. Accordingly, in this case, the Board assigns greater weight to the competent medical evidence, specifically the VA examiner’s findings that the etiology of the pancreatitis developed independently of military service or exposure to Agent Orange and that the condition is the result of the non service-connected bile duct cancer treatment, than the Veteran’s lay statements. No other in-service event, injury, or disease has been shown for a finding of direct service connection. Rather, the Veteran’s service treatment records were negative for any showing of pancreatitis, as were any medical documentation of such within one year of leaving military service. As such, service connection on a direct basis is also not warranted. For the foregoing reasons and bases, the Board concludes that the preponderance of the evidence is against the Veteran’s claim of service connection for pancreatitis and the benefit-of-the doubt standard of proof does not apply. 38 U.S.C. § 5107 (b) (2019). Thus, the claim must be denied. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dodd, Ryan 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.