Citation Nr: 21028124 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-29 264 DATE: May 10, 2021 ORDER 1. Entitlement to service connection for postoperative meningioma and residuals of cerebrovascular incident (meningioma) is denied. 2. Entitlement to service connection for adenocarcinoma of the appendix is denied. FINDINGS OF FACT 1. Meningioma did not have its onset in service, was not manifested to a compensable degree within one year of service discharge, and is not otherwise related to service, to include as due to herbicide agent exposure. 2. Adenocarcinoma of the appendix did not have its onset in service, was not manifested to a compensable degree within one year of service discharge, and is not otherwise related to service, to include as due to herbicide agent exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for postoperative meningioma and residuals of cerebrovascular incident are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). 2. The criteria for service connection for adenocarcinoma of appendix are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1965 to May 1967, including service in Vietnam. The Veteran had perfected an appeal for these two issues, but then died in June 2018. The appellant has filed these claims as the Veteran's surviving spouse and was granted substitution for this appeal. In a January 2019 decision, the Board of Veterans' Appeals (Board) found that new and material evidence had been received to reopen the claim for service connection for postoperative meningioma and history of cerebrovascular incident and remanded the claim for additional development. It also remanded the claim for service connection for adenocarcinoma of the appendix for additional development. The development has been completed, and the case has been returned to the Board for additional appellate consideration. The Board finds that there was substantial compliance with the January 2019 remand directives. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A. Chronic Diseases Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). B. Herbicide Agents Service connection may be granted on a presumptive basis for certain diseases associated with exposure to herbicide agents. 38 C.F.R. § 3.307(a)(6). A veteran who, during active military, naval, or air service, served between April 1, 1968 and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be 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 that service. 38 C.F.R. § 3.307(a)(6)(iv). A veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active military, naval, or air service, and develops certain diseases to a compensable degree any time after such service, the disease shall be service-connected even though there is no record of such disease during service, provided that the rebuttable presumption provisions of § 3.307(d) are also satisfied. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and early-onset peripheral neuropathy, which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C. § 1112; 38 C.F.R. § 3.307, 3.309(e). The diseases are AL amyloidosis; chloracne; type II diabetes; Hodgkin's disease; ischemic heart disease, all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); 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 sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). 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 (West 2014); 38 C.F.R. § 3.102. 1. Entitlement to service connection for postoperative meningioma and residuals of cerebrovascular incident In statements from July 1981 and September 2010, prior to his death, the Veteran contended that his disabilities were directly due to herbicide agent exposure during service. The appellant also generally makes this contention. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of service connection for meningioma on direct or presumptive bases. The reasons follow. The Veteran was diagnosed with meningioma, and thus there was evidence of a current disability, and the facts establish that the first element of a service-connection claim is met. As to an in-service disease or injury, the evidence does not support a finding of a disease or injury in service indicative of a meningioma. The service treatment records (STRs) show that the Veteran was found to have clinically normal evaluations of his head, face neck and scalp, as well as his neurological system in Reports of Medical Examination from June 1965 and May 1967 at separation. In Reports of Medical History from June 1965 and May 1967, the Veteran denied history of dizziness or fainting, tumor growth, cyst or cancer, frequent or severe headache, which tends to show that he was not experiencing symptoms of a meningioma in service. Accordingly, the preponderance of the evidence is against a finding of complaints or symptoms related to meningioma during service. However, the Board concedes that the Veteran was exposed to herbicides while serving in Vietnam. Thus, to this extent, the facts establish that the second element of a service-connection is met. As to evidence of a nexus between the current disability and service, the Board finds that the preponderance of the evidence is against a nexus. For example, the Veteran was first diagnosed with meningioma in a May 1981 private treatment record, which is approximately 14 years following service discharge, and tends to establish that meningioma did not have its onset in service. At the time of the diagnosis of a meningioma, the Veteran reported that he had experienced headaches for five to seven years, which would place the onset of headaches between 1974 and 1976, which also does not lend to a finding of the meningioma having an onset in service. In a June 2016 private opinion, Dr. M. Lentzou opined that that the Veteran's meningioma is directly associated with the Veteran's exposure to an herbicide agent during service, and provided the rationale that that Institute of Medicine in the U.S. provided a report that brain cancer is implicated when an individual is exposed to Agent Orange. In a December 2020 private opinion, Dr. Lentzou repeated her opinion, citing the same rationale and report. The Board affords these opinions no probative value, as Dr. Lentzou uses ambiguous language in her rationale. For example, Dr. Lentzou generally refers to a "biannual report," but does not specifically state which report she is referring to or the specific findings of the report (or reports) she is citing. Specifically, Dr. Lentzou refers to the biannual report of the Institute of Medicine in her June 2016 statement and her December 2020 statement, but it is not clear which year the findings were made, or when the report being referenced was published. Additionally, she stated that brain cancer was implicated, and the Veteran was diagnosed with a meningioma and not brain cancer. In a September 2016 VA opinion, a VA examiner opined that Dr. Lentzou's opinion was incorrect, as meningioma is not considered to be caused by herbicide agent exposure. The VA examiner accordingly opined that the Veteran's meningioma is less likely than not related to Agent Orange exposure. An October 2020 VA addendum opinion was issued, as the September 2016 opinion did not provide a well-supported rationale. In the October 2020 VA opinion, the examiner opined that the Veteran's meningioma is less likely than not related to service. The VA examiner explained that there is no credible medical evidence to support a causal link between meningioma and Agent Orange exposure. The examiner cited a 2020 article entitled "Epidemiology, pathology, clinical features, and diagnosis of meningioma" to support the opinion. The article explained that while the etiology of a meningioma was not known in most cases, there was a clear association with antecedent radiation exposure. The article does not establish a causal connection between a meningioma and herbicide agent exposure. The Board affords the October 2020 opinion probative value, as the VA examiner provided a well-supported rationale with a clear reference to scientific literature. This opinion establishes that the Veteran's meningioma was not incurred in or otherwise related to service, including due to herbicide agent exposure. The appellant submitted articles in support of the claim. Medical treatise evidence can, in some circumstances constitute competent medical evidence. Competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses. However, the U.S. Court of Appeals for Veterans Claims has held that medical evidence that is speculative, general, or inconclusive in nature cannot support a claim. Here, the articles submitted by the appellant are general in nature and do not specifically relate to the facts and circumstances surrounding the Veteran's particular case. They do not address a relationship between herbicide agent exposure and a meningioma. Thus, these articles are not the equivalent of a statement from a medical expert who actually reviewed the Veteran's medical history and rendered a definitive opinion based on the specifics of the Veteran's history. In statements from February 2011 and December 2020, the appellant stated that the Veteran experienced severe headaches in 1968 after leaving service. In a May 2013 VA Form 21-4138, the Veteran submitted a statement that his meningioma manifested within 12 months of service, as he experienced debilitating headaches. The Veteran had contended that this evidence supports that his disability is a chronic disease. However, the contemporaneous evidence does not support these allegations of severe headaches soon after service discharge. For example, a May 1981 private record shows that the Veteran reported his headaches had been occurring for five to seven years, which would place the onset of the headaches in approximately 1974 to 1976, which is approximately seven years following service discharge. Statements made while seeking medical treatment tend to be highly reliable. Accordingly, the Board finds as fact that the allegations of severe headaches beginning soon after the Veteran's service discharge are not credible. Although the Veteran, during his lifetime, and the appellant claim that the meningioma is related to service, they are not competent to directly link the meningioma to service, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's and the appellant's opinions are nonprobative evidence. At the present time, the more probative evidence is against a nexus between the meningioma and service, and the nexus element of a service-connection claim is not met. As to presumptive service connection for a chronic disease, the Board finds that the Veteran did not incur an event, injury, or disease related to his current meningioma in service and that his meningioma did not manifest during service or within one year of separation from service. Furthermore, the evidence of record does not demonstrate that the Veteran's symptoms have been continuous since separation from service in May 1967. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The Veteran was diagnosed with the meningioma approximately 14 years following service discharge, and he had reported the onset of headaches occurring between 1974 and 1976. The report by the Veteran that his headaches began between 1974 and 1976 is evidence against a finding of continuous symptoms since separation from service. As to presumptive service connection due to herbicide agent exposure, a meningioma is not an enumerated disease deemed to have been presumptively caused by Agent Orange. Accordingly, service connection is not available on this theory of entitlement. In sum, the Board concludes that the preponderance of the evidence of record is against the claim for service connection for a meningioma. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107(b) is not applicable, as there is no approximate balance of evidence. 2. Entitlement to service connection for adenocarcinoma of appendix In statements from July 1981 and September 2010, the Veteran contended that his disabilities were directly due to herbicide agent exposure during service. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of service connection for adenocarcinoma of the appendix on direct or presumptive bases. The reasons follow. The Veteran has been diagnosed with adenocarcinoma of the appendix, and thus there is evidence of a current disability, and the facts establish that the first element of a service-connection claim is met. As to an in-service disease or injury, the evidence does not support a finding of a disease or injury in service indicative of adenocarcinoma of the appendix. The STRs show that the Veteran was found to have clinically normal evaluations of his vascular system and his abdomen and viscera in Reports of Medical Examination from June 1965 and May 1967 at separation. In Reports of Medical History from June 1965 and May 1967, the Veteran denied history of intestinal trouble, appendicitis, and tumor growth, cyst or cancer, which tends to show that he was not experiencing adenocarcinoma in service. Accordingly, the preponderance of the evidence is against a finding of complaints or symptoms related to adenocarcinoma during service; however, the Board concedes that the Veteran was exposed to herbicides while serving in Vietnam. Thus, to this extent, the facts establish that the second element of a service-connection is met. As to evidence of a nexus between the current disability and service, the Board finds that the preponderance of the evidence is against a nexus. For example, the Veteran was first diagnosed with adenocarcinoma of the appendix in 2002, which is more than 30 years following service discharge, which tends to establish that adenocarcinoma of the appendix did not have its onset in service. In a June 2016 private opinion, Dr. Lentzou opined that that the Veteran's adenocarcinoma is directly associated with the Veteran's herbicide agent during service, although she cited the Institute of Medicine in the U.S. biannual report, does not reference any finding in the report that links herbicide agent exposure to adenocarcinoma, and does not supply any other rationale. Additionally, when listing diagnoses implicated within the report, she did not include adenocarcinoma of the appendix. Rather, she addressed melanoma, brain cancer, COPD, tonsil cancer, soft tissue sarcoma, non-Hodgkin's lymphoma, early onset peripheral neuropathy, and Alzheimer's disease and then specifically discussed prostate cancer. As the opinion does not contain a well-supported rationale as to the diagnosis at issue of adenocarcinoma of the appendix, the Board affords it no probative value. In a December 2020 private opinion, Dr. Lentzou repeated her opinion, citing the same. However, as the December 2020 opinion is based upon conclusory statements that all cancers were more likely than not due to exposure to an herbicide agent, and does not offer a rationale for this opinion, the Board affords it no probative value. In a September 2016 VA examination report for intestinal surgery, the VA examiner opined that the Veteran's adenocarcinoma is less likely than not associated with herbicide agent exposure, explaining that adenocarcinoma is not considered a condition that is caused by Agent Orange exposure. In a September 2016 VA examination report for skin diseases, the VA examiner opined that the Veteran's adenocarcinoma is at least as likely as not caused by Agent Orange exposure during service. The examiner provided the rationale that medical literature states that "Appendix cancer is rare and most commonly found incidentally in an appendectomy specimen that was obtained for an unrelated condition. The main histologic types are carcinoids, adenocarcinomas, adenocarcinoids, cystadenomas, and cystadenocarcinomas." VA found that the September 2016 VA opinion provided with the examination intestinal surgery provided an insufficient rationale, and otherwise could not be reconciled with the September 2016 VA opinion provided for the skin diseases examination and requested an addendum opinion. In an October 2020 VA opinion, another VA examiner opined that the Veteran's adenocarcinoma is less likely than not related to service. The October 2020 VA examiner explained that there is no credible medical evidence to support a causal link between adenocarcinoma and Agent Orange exposure and noted that the Veteran's adenocarcinoma is not a skin disease. The examiner cited a 2020 article entitled "Well-differentiated tumors of the appendix." The Board affords this opinion probative value, as the October 2020 VA examiner provides a well-supported rationale based upon relevant scientific literature. This opinion establishes that the Veteran's adenocarcinoma of the appendix was not incurred in or otherwise related to service, including due to herbicide agent exposure. The Board finds that the September 2016 VA examination for skin diseases is outweighed by the October 2020 VA opinion, as the latter opinion specifically cites relevant evidence discounting the September 2016 opinion, and notes that the September 2016 VA examination for skin diseases inappropriately considered the Veteran's adenocarcinoma of the appendix as a skin disease within the purview of a skin examination. Although the Veteran, during his lifetime, and the appellant claim that the adenocarcinoma of the appendix is related to service, they are not competent to directly link the adenocarcinoma to service, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's and the appellant's opinions are nonprobative evidence. At the present time, the more probative evidence is against a nexus between the adenocarcinoma and service, and the nexus element of a service-connection claim is not met. As to presumptive service connection for a chronic disease, the Board finds that the Veteran did not incur an event, injury, or disease related to his current adenocarcinoma in service and that his adenocarcinoma did not manifest during service or within one year of separation from service. Furthermore, the evidence of record does not demonstrate that the Veteran's symptoms have been continuous since separation from service in May 1967. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). There were no complaints, diagnosis, or treatment for this disorder for more than 30 years following service discharge until the Veteran was diagnosed with adenocarcinoma in 2002. The absence of post-service complaints, findings, diagnosis, or treatment for more than 30 years after service is one factor that tends to weigh against a finding of continuous symptoms since separation from service. The Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence. A prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. As to presumptive service connection due to herbicide agent exposure, adenocarcinoma of the appendix is not an enumerated disease deemed to have been presumptively caused by Agent Orange. Accordingly, service connection is not available on this theory of entitlement. In sum, the Board concludes that the preponderance of the evidence of record is against the Veteran's claim for service connection for adenocarcinoma of the appendix. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107(b) is not applicable, as there is no approximate balance of evidence. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Husain, 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.