Citation Nr: 21027704 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 15-39 150 DATE: May 6, 2021 ORDER Entitlement to service connection for esophageal cancer, to include as due to herbicide agent exposure, is denied. Entitlement to service connection for the Veteran's cause of death is denied. REMANDED Entitlement to service connection for joint pain/ gout is remanded. FINDINGS OF FACT 1. Esophageal cancer did not manifest during active service, within one year of separation from service, and is not otherwise related to active service, including herbicide exposure. 2. The Veteran died on December [REDACTED], 2013 and his causes of death were sepsis, cholangitis, and metastatic esophageal cancer. 3. At the time of his death, the Veteran was service-connected for posttraumatic stress disorder. 4. The Veteran's cause of death was not related to active service, including herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for esophageal cancer, to include as due to herbicide agent exposure, have not been met. 38 U.S.C. §§ 1110, 1116 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 2. The criteria for entitlement to service connection for the Veteran's cause of death have not been met. 38 U.S.C. §§ 1110, 1112, 1137, 1310, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.312 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the Army from October 1967 to October 1969, with service in Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran died in December 2013. The appellant, who is the Veteran's surviving spouse, has been substituted as the appellant for this appeal. In November 2018 the appellant presented testimony at a video hearing before the undersigned Acting Veterans Law Judge (VLJ). These issues were previously before the Board in July 2019 and November 2020, when it was remanded for further development, that development was completed, and the case has since been returned to the Board for appellate review. The issue of entitlement to service connection for joint pain/gout, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). Duties to Notify and Assist Neither the appellant nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board finds that there has been substantial compliance with the prior November 2020 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The issues were remanded for an adequate opinion regarding herbicide agent exposure and its relationship to esophageal cancer. A VA examiner provided a December 2020 opinion that adequately addressed the November 2020 remand directives. Accordingly, the Board will proceed with appellate review. 1. Service connection for esophageal cancer Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2020). To establish a right to compensation for a present disability, a Veteran must show: (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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2020). In addition, service connection for certain chronic diseases, including malignant tumors or cancer, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2020); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2020); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A Veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). The Vietnam era is the period beginning on February 28, 1961 and ending on May 7, 1975 for veterans who served in the Republic of Vietnam, and the period beginning on February 28, 1961 and ending on May 7, 1975, in all other cases. 38 U.S.C. § 101(29)(A). Service in the Republic of Vietnam is "service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam." 38 C.F.R. § 3.307(a)(6)(iii). 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). If a veteran was exposed to Agent Orange during active service, service connection is presumed for the following disorders: chloracne or other acneform disease consistent with chloracne; type 2 diabetes; Hodgkin's disease; Chronic lymphocytic leukemia (CLL); multiple myeloma; Non-Hodgkin's lymphoma; early onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The Veteran alleged that the esophageal cancer was related to indigestion problems in-service and herbicide agent exposure. In a June 2012 statement, the Veteran indicated his esophageal cancer was related to herbicide agent exposure and stomach problems in service. During the November 2018 Board hearing, the appellant stated the Veteran's gastroesophageal reflux disease (GERD) from service led to the esophageal cancer. First, the Board finds that there was a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). An August 2012 private treatment record noted the Veteran was diagnosed with metastatic esophageal adenocarcinoma in December 2011. Accordingly, the first element of service connection has been met. Second, the Board finds that there was an in-service event. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran's DD214 indicated he served in Vietnam. The Veteran's service personnel records (SPRs) showed he served in Vietnam from April 1968 to April 1969. Accordingly, herbicide agent exposure is presumed. Additionally, an April 1968 service treatment record (STR) showed the Veteran complained of epigastric distress and occasional indigestion. Accordingly, there was an in-service event and herbicide agent exposure is presumed. Third, however, esophageal cancer is not a disease associated with herbicide agent exposure. 38 C.F.R. § 3.309(e). Esophageal cancer is not a respiratory cancer or a soft tissue sarcoma. 38 C.F.R. § 3.309(e). Accordingly, presumptive service connection based on herbicide agent exposure is not warranted. Lastly, the Board finds that the evidence of record does not support a finding that the esophageal cancer is related to active service, including herbicide agent exposure. While presumptive service connection is not warranted, the Board will consider direct service connection including based on herbicide agent exposure. A VA examiner rendered a July 2020 opinion. The examiner stated that based on the records, the Veteran consulted for complaint of possible ulcers in 1968 but stated there was no frequent indigestion in the August 1969 report of medical history. The examiner noted there were no records between separation and a March 2008 record documenting a continuing digestive tract condition. The examiner first cited to a conclusion from the American Journal of Gastroenterology that there is a significant association between patients who are enrolled in the agent orange registry from their service in Vietnam, and the development of esophageal cancer. The literature noted this association holds when adjusted for propensity score and the pathway of progression to adenocarcinoma is not fully understood. The examiner stated that no literature is found that clearly indicates that herbicide agent exposure will result in esophageal cancer, therefore it is less likely than not the Veteran's esophageal cancer had an onset in or is otherwise related to active service to include as due to herbicide agent exposure. The Board affords low probative weight to the portion of the opinion regarding herbicide agent exposure. First, the examiner's opinion seems to be in contradiction to the medical evidence cited. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Second, the legal standard does not require a clear indication. The Board affords significant probative weight to the portion of the opinion that discusses direct service connection based on gastric distress. First, the examiner noted the Veteran's June 2012 statement. Second, the examiner adequately addressed the relevant STRs, notably, the August 1969 report of medical history in which the Veteran denied frequent indigestion and stomach issues. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts). Lastly, the examiner's opinion is consistent with the record. A January 2012 private treatment record indicated GERD since 2000 but there is no mention of gastrointestinal disorder prior to 2000. A VA examiner rendered a December 2020 opinion. The examiner opined it is less likely than not the Veteran's esophageal cancer had an onset in or is otherwise related to active service to include as due to herbicide agent exposure. The examiner noted the April 1968 STR and explained at separation the Veteran denied frequent indigestion and stomach trouble. The examiner explained that the cases of esophageal cancer included: tobacco smoking, decreased intake of fruits and vegetables, GERD, and susceptibility genes. The examiner noted a February 2012 private treatment record that noted the Veteran had a history of smoking and chewing tobacco. The examiner explained that the literature noted in the prior opinion indicated the association between herbicide agents and the pathway of progression to adenocarcinoma is not fully understood. The examiner cited to a book that concluded there was inadequate or insufficient evidence to determine whether there was an association between exposure to herbicide agents and esophageal cancer. The examiner directly addressed the appellant statements in the hearing regarding symptoms continuing since service. The examiner concluded esophageal cancer was not related to service based on medical literature and lack of supporting evidence. The Board affords the December 2020 opinion significant probative weight. First, the examiner adequately addressed the appellant's and the Veteran's lay statements. Second, the examiner addressed continuity of symptomatology. Generally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Third, the examiner clarified the medical literature cited in the July 2020 opinion. Fourth, the examiner cited to medical literature to support their opinion. Lastly, the opinion was consistent with the STRs and private medical records. Notably, a January 2012 private treatment record showed the Veteran smoked cigarettes and chewed tobacco. The record indicated the Veteran smoked one pack per day and chewed two to four tins per week. The private provider indicated years of tobacco use as 30 years. Thirty years prior to 2012 was 1982 and over a decade after the Veteran was discharged from service. Additionally, the private treatment records showed a family history of cancer. The Board notes private treatment records showed the Veteran received treatment from December 2011 until his death. However, the private treatment records do not indicate esophageal cancer was related to service, to include herbicide agent exposure. Accordingly, service connection is denied. 2. Service connection for the cause of the Veteran's death In order to establish service connection for the cause of the Veteran's death, the evidence must show that a disability was incurred in or aggravated by active service; and was the principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or must be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death but rather it must be shown that there was a causal connection. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The standards and criteria for determining whether a disability from which a Veteran has died is service connected are the same standards and criteria employed for determining whether a disability is service connected generally, i.e., while the Veteran is still alive. 38 U.S.C. § 1310. The Veteran died in December 2013 and his death certificate listed the immediate causes of death as sepsis, due to or a consequence of cholangitis, due to or because of metastatic esophageal cancer. At the time of the Veteran's death, the Veteran was service connected for PTSD. The Board has determined service connection is not warranted for esophageal cancer, including based on herbicide agent exposure. Thus, service connection for the cause of the Veteran's death is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Service connection for gout Remand is required for an adequate opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). When a Veteran has provided competent lay statements of an in-service injury, the examiner must consider and address them when developing his rationale. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). A December 2020 opinion was provided. The examiner opined it was less likely than not joint paint/ gout had an onset in or was otherwise related to service. The examiner stated gout attacks come on quickly and keep returning over time. The examiner explained it can even cause flu-like symptoms, fever, and muscle aches. The examiner noted that in the August 1969 report of medical history, it was noted that the Veteran reported cramps in his legs. The examiner cited an August 2013 statement in which the Veteran reported he began having gout flare-ups in 1970, months after leaving Vietnam and was clinically diagnosed in 1973. The Veteran also enumerated in the document the different facilities and dates of his treatment which include 1972-1973, 1976, 1995-1999, 1999-2005, and 2005-2013. The examiner stated there were no records found during service to support gout and laboratory exams found were all after the service period. Therefore, the claimed joint pain/gout is less likely than not (less than 50% probability) incurred in service. The examiner's rationale only addresses that gout did not incur in service. The rationale does not address whether it was related to service. Notably, the January 2012 private treatment records confirm the Veteran's statement that he was diagnosed in 1973. Service connection does not require a diagnoses in-service just an in-service event, such as leg cramps. Accordingly, remand is required for an adequate opinion. The matters are REMANDED for the following action: 1. Obtain an opinion regarding the etiology of the joint pain/gout from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the joint pain/gout had onset in, or is otherwise related to, active service. The examiner must address the following: 1) August 1968 report of medical history that noted leg cramps at separation; 2) August 2013 lay statement where the Veteran indicated gout attacks began in 1970; and 3) relevant private treatment records, including noting that gout was diagnosed in 1973 and remained active. 2. Ensure compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). K. MILLIKAN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bruton, 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.