Citation Nr: 21042219 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 14-40 062 DATE: July 12, 2021 ORDER Entitlement to service connection for esophageal cancer (claimed as malignant neoplasm of the stomach) for substitution purposes is granted. REMANDED Entitlement to service connection for an intestinal condition for substitution purposes is remanded. Entitlement to service connection for a benign neoplasm of the stomach for substitution purposes is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a malignant neoplasm of the stomach at any time during or approximate to the pendency of the claim; the cancer cells in his stomach were esophageal cancer that was located in the stomach. 2. Service connection for cause of death is in effect on the basis of esophageal cancer being related to the Veteran's military service. CONCLUSION OF LAW The criteria for entitlement to service connection for esophageal cancer (claimed as malignant neoplasm of the stomach) for substitution purposes have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from December 1968 to November 1971, and from April 1976 to March 1992. These matters originally came before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case in November 2018 for nexus opinions. Additionally, the Board found that the Appellant is a valid substitute for the Veteran. Service Connection Generally, to establish service connection 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." Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for certain chronic diseases if manifested to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309. If there is no evidence of a chronic condition during service or the applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 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 Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a malignant neoplasm of the stomach. The Veteran contended that he had a malignant neoplasm of the stomach and that it was related to service, to include exposure to herbicides. The question for the Board is whether the Veteran had a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran did not have a current diagnosis of a malignant neoplasm of the stomach and had not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The February 2020 VA examiner determined that, while the Veteran had cancer cells in his stomach, these cells were not stomach cancer but esophageal cancer that was located in the stomach. "The tumor occurred at the junction between the esophagus and the stomach, but pathology showed it to be composed of esophageal cells." Thus, the examiner opined that the Veteran did not have a current disability of a malignant neoplasm of the stomach. Importantly, in a November 2018 decision, the Board granted service connection for cause of death on the basis that a private opinion from an Army oncologist opined that the Veteran's esophageal cancer was related to his military service. It follows that service connection for substitution purposes is also warranted for esophageal cancer. REASONS FOR REMAND 1. Entitlement to service connection for an intestinal condition is remanded. The June 2020 supplemental statement of the case denied service connection for carcinoma of the intestine, relying on the February 2020 VA examiner's opinion that the Veteran's carcinoma of the intestine is not related to service because the Veteran actually had metaplasia. In characterizing the issues on appeal, the Board recognizes that, when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). Therefore, the Board has broadened the Veteran's carcinoma of the intestine claim and recharacterized the issue as a claim of entitlement to service connection for an intestinal condition, as identified above. The February 2020 VA examiner diagnosed the Veteran with metaplasia, but did not provide an opinion as to whether his metaplasia is related to service. The examiner's only reasoning as to why she opined the Veteran's carcinoma of the intestine was not related to service was because the Veteran did not have intestinal cancer at any point in time, and instead had metaplasia. "Metaplasia represents an abnormal change from normal cells, and it is concerning for the future development of cancer. However, it is not yet cancer, and as such, is not considered malignant." Therefore, a remand is necessary to obtain an addendum opinion to address whether the Veteran's metaplasia is related to service, to include herbicide exposure. 2. Entitlement to service connection for a benign neoplasm of stomach is remanded. The February 2020 examiner diagnosed the Veteran with fundic gland polyps. She opined the Veteran's fundic gland polyps were not related to service because they are a "benign incidental finding at the time of either endoscopy or surgery and have no clinical significance." The examiner additionally reasoned that fundic gland polyps are mostly just side effects of proton pump inhibitors. Proton pump inhibitors treat gastrointestinal conditions, and the Veteran has a history of these conditions, including his in-service complaints and treatment of nausea and bowel issues. The examiner did not discuss whether this was related to the Veteran's current fundic gland polyps. Additionally, the examiner did not discuss whether the Veteran's fundic gland polyps were related to herbicide exposure. Therefore, a remand is necessary to obtain an addendum opinion to address whether the Veteran's fundic gland polyps are related to service, to include herbicide exposure, in-service complaints and treatment of nausea and bowel issues, and any medications used to treat in-service conditions. The matters are REMANDED for the following action: 1. Obtain an addendum opinion for the Veteran's intestinal condition, to include metaplasia. The entire file should be made available to the examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed intestinal disorder, to include metaplasia, had its clinical onset during active service or is related to any in-service disease, event, or injury, to include herbicide exposure and in-service complaints and treatment of nausea and bowel issues. It is insufficient for the examiner to provide a negative opinion merely because metaplasia is not a condition on the presumption list for herbicide agents. The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 2. Obtain an addendum opinion for the Veteran's benign neoplasm of the stomach, to include fundic gland polyps. The entire file should be made available to the examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed benign neoplasm of the stomach, to include fundic gland polyps, had its clinical onset during active service or is related to any in-service disease, event, or injury, to include herbicide exposure, in-service complaints and treatment of nausea and bowel issues, and any medications used to treat in-service conditions. It is insufficient for the examiner to provide a negative opinion merely because a benign neoplasm of the stomach is not a condition on the presumption list for herbicide agents. The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Papacalos, 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.