Citation Nr: 22010397 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 10-00 264 DATE: February 23, 2022 ORDER Entitlement to service connection for esophageal cancer, including as due to asbestos and/or Agent Orange exposure, is denied. FINDING OF FACT Symptoms of esophageal cancer were not continuous or recurrent in service or since service separation, and there is no medical nexus between the claimed disability and active service, including asbestos and/or Agent Orange exposure, and/or service-connective disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for esophageal cancer have not been met. 38 U.S.C. §§ 101, 1101, 1110, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310. REFERRED The claims of entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (TDIU) and service connection for peripheral vascular disease have not been adjudicated by the Agency of Original Jurisdiction (AOJ). As a June 2020 Joint Motion for Partial Remand (Joint Motion) indicated, a claim for entitlement to a TDIU submitted in September 2011 prior to the Veteran's death was never adjudicated. The Joint Motion recognized that the Board lacked jurisdiction over the issue and instead directed it to refer the TDIU claim for adjudication by the RO in the first instance. Though the claims file shows notice was sent regarding a TDIU claim in January 2021, the claim has not been adjudicated. Similarly, the June 2020 Joint Motion also instructed the Board to address whether the Veteran's December 2007 Application for Disability Compensation (VA Form 21-526) for service connection for "artery disease" also included a claim of entitlement to service connection for peripheral vascular disease within its scope. See 38 C.F.R. § 20.904(b) (referral of claims reasonably raised by the record) (formerly 38 C.F.R. § 19.9(b)). In December 2020, the Board determined in the present case, in accordance with 38 C.F.R. § 3.155(a), a separate issue of entitlement to service connection for peripheral vascular disease was raised by the record in the December 2007 claim. However, this was never adjudicated by the AOJ, despite the Board's referral of the issue again in July 2021. Therefore, this issue is referred to the AOJ for appropriate action consistent with the instructions of the June 2020 Joint Motion. Therefore, the Board does not have jurisdiction over the claims of TDIU and for service connection for peripheral vascular disease, and they are referred to the AOJ for appropriate action. See 38 C.F.R. § 20.904(b) (continuing to provide for referral of unadjudicated claims). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1964 to December 1968. He died in September 2011. His surviving spouse was substituted by VA as the appellant in the present appeal in May 2018. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2009 Rating Decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied entitlement to service connection for esophageal cancer. The Veteran disagreed with decision in May 2009. The Veteran died in September 2011. In April 2012 and December 2012, the RO denied entitlement to service connection for cause of death or Dependency and Indemnity Compensation (DIC) benefits to the surviving spouse, the appellant in the present appeal. However, in September 2015, cause of death was granted, as the RO determined coronary artery disease cardiovascular symptoms and respiratory symptoms could not clearly be separated as the functions of the cardiovascular and respiratory systems are significantly intertwined, and recognized evidence that supported the assertion that the Veteran's coronary artery disease played more than a mere casual role in the production of death. In a May 2018 letter, the AOJ acknowledged the appellant as a valid substitute claimant and informed her that the RO would continue to process the claims on appeal. In a July 2019 decision, the Board denied the appellant's claims of entitlement to service connection for cancer of the esophagus. The appellant appealed this denial to the U.S. Court of Appeals for Veterans Claims (Court). In a Court Order dated in June 2020, pursuant to the June 2020 Joint Motion, the Court vacated the Board's July 2019 decision with respect to this denial. This matter was previously before the Board in July 2021, at which time it was remanded in order to obtain an opinion that addressed the etiology of the Veteran's esophagus cancer. Such an opinion was obtained in October 2021. Thus, with respect to the July 2021 Remand, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a remand request is required). 1. Entitlement to service connection for esophageal cancer, including as due to Agent Orange exposure and/or asbestos exposure The appellant seeks entitlement to service connection for the Veteran's esophageal cancer. Prior to his death, the Veteran contended that he had esophageal cancer related to Agent Orange exposure from when he set foot in Vietnam. In addition, he averred that his esophageal cancer was related to asbestos exposure, as he was stationed on the USS Monticello for several years, and the pipes on the ship were wrapped in asbestos-containing materials. For the reasons discussed below, the Board resolves reasonable doubt in favor of the Veteran and finds that he served in the Republic of Vietnam and is presumed to have been exposed to herbicide agents during active service. However, the Board also finds that the weight of the evidence is against a finding that there is a medical nexus between the claimed esophageal cancer and the Veteran's period of active service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) competent evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When a disease is first diagnosed after service but not within an applicable presumptive period, service connection may nevertheless be established by evidence demonstrating that disease was in fact incurred during service. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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). Establishing service connection on a secondary basis requires evidence showing (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Service connection can also be presumed if a veteran was exposed to an herbicide agent during active service. 38 C.F.R. § 3.309(e). Presumptive service connection for the listed disabilities as a result of Agent Orange exposure is warranted if the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). The governing law provides that a "veteran who, during active military, naval, or air 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 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 U.S.C. § 1116(f). In this case, the Veteran's service personnel records show that he served aboard the USS Monticello from April 1965 to December 1968. On his December 2007 VA Form 21-526, the Veteran stated that he was quartermaster, and as such, he would transport the Marines from the ship to Da Nang, Vietnam. In addition, he was responsible for supplying them with food, ammunition, clothes, and other supplies, and he would take the supplies in by boat into port. He also had to travel up a river on patrol, and on many occasions, had to return fire. In an August 2008 statement, the Veteran said that he was responsible for taking a captain to headquarters in Da Nang by way of the Chu Li River, and sometimes would spend up to four hours at the floating dock there. A November 1968 service treatment record indicated that the Veteran acknowledged potential exposure to malaria by reason of being in the Vietnam area. Multiple printed articles and histories of the USS Monticello associated with the claims file tend to confirm the Veteran's assertions that the ship sent troops to Da Nang and supplied troops on the ground. A March 2008 Personnel Information Exchange System (PIES) response indicated that the USS Monticello was in the official waters of Vietnam during the time the Veteran was on board. Finally, a May 2011 Nehmer Agent Orange Joint Services Records Research Center (JSRRC) Review memorandum associated with the claims file indicated that a declassified document printed in the claims file showed that the USS Monticello was in Da Nang on September 7, 1967, which aligns with the dates in the PIES response as well as with the dates the Veteran was on board the ship, and concluded that the Veteran set foot in Vietnam. Resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence is at least in equipoise as to whether the Veteran set foot in Vietnam. As such, it is presumed that he was exposed to herbicides. However, if there is no presumptive service connection available, such as for the claimed cancer of the esophagus, direct service connection can be established if the record contains competent medical evidence of a current disease process with a relationship to exposure to an herbicide agent while in military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Combee at 1043-44. As noted above, prior to his death, the Veteran contended that his esophageal cancer was due to his Agent Orange exposure. The Board reiterates that the claimed esophageal cancer is not among the diseases presumptively related to herbicide exposure, and, therefore, the presumptive provisions related to herbicide exposure to not apply to these disabilities. See 38 C.F.R. § 3.309(e). However, direct service connection is still available. While herbicide exposure is presumed in this case, for the reasons discussed below, the Board finds that the weight of the evidence is against a finding of a medical nexus between the claimed esophageal cancer and active service, to include herbicide exposure. Reviewing the most relevant evidence of record, the Veteran's service treatment records are entirely negative for complaints of and/or treatment for symptoms related to esophageal cancer. Both the enlistment and separation examination reports showed normal clinical evaluations; significantly, his December 1968 Report of Medical History at separation indicated that his mouth and throat were within normal limits. In June 2005, the Veteran reported two months of mid-sternal pain and difficulty swallowing. He underwent a workup including esophagogastroduodenoscopy (EGD) which revealed an esophageal lesion. A biopsy was consistent with squamous cell carcinoma. The Veteran died in September 2011, and his death certificate listed carcinoma of the esophagus, squamous cell, as the cause of death, with an approximate interval of six years from onset to death. The Board initially denied the claim of entitlement to service connection for esophageal cancer in a July 2019 decision, after which time the appellant appealed this denial to the Court. In a Court Order dated in June 2020, pursuant to the June 2020 Joint Motion, the Court vacated the Board's July 2019 decision with respect to this denial. Specifically, the Joint Motion found that the Board erred in failing to address whether the duty to obtain a medical opinion relevant to this issue was triggered under McLendon v. Nicholson, 20 Vet. App. 79 (2006) (VA must provide a VA examination or obtain a medical opinion where there is a current disability, and an indication the disability may be related to the veteran's service, but there is insufficient medical evidence to decide the claim). Pursuant to Court's Remand, in a December 2020 decision, the Board remanded the matter in order to obtain a VA opinion from appropriate clinicians as to the likely etiology of the Veteran's diagnosed squamous cell carcinoma of the esophagus, to include to include whether it was caused or aggravated by his service-connected coronary artery disease or caused by in-service exposure to an herbicide agent like Agent Orange, regardless of the fact that esophageal cancer was not presumed to be associated with herbicide exposure. A VA medical opinion was obtained in January 2021, at which time the clinician opined that the Veteran's diagnosed squamous cell carcinoma of the esophagus was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. In support of this opinion, the clinician, citing research from the Mayo Clinic, explained that: All available medical records, remand documents, death certificate and STRs were reviewed. STRs are negative for any diagnosis or complaints of esophageal cancer during active duty service. Separation exam was silent for any diagnosed chronic condition. Death certificate from 2011 notes a history of esophageal cancer for 6 years. "It's thought that chronic irritation of your esophagus may contribute to the changes that cause esophageal cancer. Factors that cause irritation in the cells of your esophagus and increase your risk of esophageal cancer include: Having gastroesophageal reflux disease (GERD) Smoking Having precancerous changes in the cells of the esophagus (Barrett's esophagus) Being obese Drinking alcohol Having bile reflux Having difficulty swallowing because of an esophageal sphincter that won't relax (achalasia) Having a steady habit of drinking very hot liquids Not eating enough fruits and vegetables Undergoing radiation treatment to the chest or upper abdomen" Claims folder notes a history of heavy alcohol consumption on cardiology consult 1994 and chronic tobacco use for 35-40 years. NO nexus to service or herbicide exposure established. Additionally, the January 2021 clinician also opined that the Veteran's diagnosed squamous cell carcinoma was less likely than not (less than 50 percent probability) proximately due to or the result of his service-connected coronary artery disease (CAD). In support of this conclusion, the clinician, citing the Mayo Clinic explained that: The conditions of esophageal cancer and CAD are not medically related. The esophageal cancer is a separate entity entirely from the CAD and unrelated to it. A thorough review of medical literature failed to demonstrate a causal relationship. "Esophageal cancer occurs when cells in the esophagus develop changes (mutations) in their DNA. The changes make cells grow and divide out of control. The accumulating abnormal cells form a tumor in the esophagus that can grow to invade nearby structures and spread to other parts of the body. Squamous cell carcinoma. The squamous cells are flat, thin cells that line the surface of the esophagus. Squamous cell carcinoma occurs most often in the upper and middle portions of the esophagus. Squamous cell carcinoma is the most prevalent esophageal cancer worldwide. No medical literature reviewed linking CAD and squamous cell carcinoma of the esophagus. Finally, the January 2021 clinician found that, "No credible medical evidence to support aggravation of the esophageal cancer beyond its natural progression by the SC CAD. CAD does not affect the esophagus or lining of the esophagus." However, in May 2021 Written Brief Presentation, the appellant's representative cited information from the National Cancer Institute that, "Some studies have found an association between asbestos exposure and esophageal cancer, but the overall results of epidemiologic studies are mixed. Exposure to asbestos causes mesothelioma (a cancer of the thin membranes that line the chest and abdomen) and cancers of the lung, larynx, and ovary. Mesothelioma is the most common form of cancer associated with asbestos exposure, although the disease is relatively rare." In a July 2021 decision, the Board found that the January 2021 clinician opinion was inadequate because it failed to discuss the theory that the Veteran's exposure to Agent Orange in service caused his cancer, or address Agent Orange in the provided rationale. As such, the claim was again remanded to obtain an adequate VA opinion which discussed the likelihood that the Veteran's carcinoma developed as a result of exposure to asbestos and exposure to herbicide agents such as Agent Orange. Pursuant to the Board's July 2021 Remand, another VA opinion was obtained in October 2021. The clinician concluded that the Veteran's diagnosed squamous cell carcinoma was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. With respect to Agent Orange as a possible cause of the Veteran's carcinoma, the clinician explained that: There is no evidence of signs or symptoms of esophageal cancer while in service or at separation. Separation exams are notably thorough and include a history, physical and veteran-answered RMH. It is highly unlikely a significant esophageal condition would have gone unnoted or unreported. It is more likely than not that the veteran's esophageal cancer is related to his ~45 pack-year history of smoking. Another significant risk factor is GERD with chronic esophagitis. GERD is not addressed in the veteran's medical records and he does not appear to be service-connected for the condition. Esophageal cancer has not been linked to agent orange exposure in the current, widely accepted, peer-reviewed literature. It is not on the list of conceded conditions due to agent orange as the medical literature does not support that position. The literature review included Up to Date, a professional medical resource wherein one may access current treatises and studies. The search failed to return articles establishing agent orange as a cause of esophageal cancer. This search included GERD and it has not been established as linked to agent orange exposure. If the veteran had GERD, there is no evidence of the condition in service and the symptoms would be the same as addressed with respect to esophageal cancer. There were none. Therefore, it is less likely than not that the veteran's esophageal cancer had its nexus in service or is due to events in service, including exposure to agent orange. With respect to asbestos exposure as a possible cause of the Veteran's carcinoma, the clinician explained that: There is no evidence of signs or symptoms of esophageal cancer while in service or at separation. Separation exams are notably thorough and include a history, physical and veteran-answered RMH. It is highly unlikely a significant esophageal condition would have gone unnoted or unreported. It is more likely than not that the veteran's esophageal cancer is related to his ~45 pack-year history of smoking. Another significant risk factor is GERD with chronic esophagitis. GERD is not addressed in the veteran's medical records and he does not appear to be service-connected for the condition. [ . . . .] Asbestos has not been associated with the development of esophageal conditions. A similar search failed to return articles establishing asbestos exposure as a cause of esophageal conditions, including GERD and/or esophageal cancer. Asbestosis is the pulmonary manifestations of asbestos exposure and would not apply to esophageal conditions. Thus, it is also less likely than not that the veteran's esophageal cancer is due to or incurred in asbestos exposure while in service. Based on the evidence of record, lay and medical, the Board finds that the evidence demonstrates that symptoms of the claimed esophageal cancer were not continuous or recurrent in service. As noted above, service treatment records are completely silent as to any reports, symptoms, findings, treatment, or diagnoses of the claimed disability. The Board next finds that the evidence demonstrates that symptoms of the esophageal cancer were not continuous or recurrent since separation from active service in December 1968. Following separation from service in December 1968, the evidence of record does not show any complaints, diagnosis, or treatment for the claimed esophageal cancer until 2005, as described above. Additionally, the Veteran's September 2011 death certificate indicated that his carcinoma of the esophagus had an approximate interval of six years from onset to death, suggesting an approximate 2005 date of onset. The absence of post-service complaints, findings, diagnosis, or treatment for the claimed disabilities for many years after service separation is one factor that tends to weigh against a finding of continuous or recurrent symptoms of the claimed disabilities after service separation. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). Additionally, when the Veteran first sought treatment for what was discovered to be esophageal cancer in 2005, he stated that he had experienced symptoms for only two months. These records provide highly probative evidence that the Veteran did not experience symptoms of the claimed disability continuously since active service, as it is assumed he would provide an accurate history of symptoms in order to receive the appropriate treatment. To the extent that the Veteran's more recent assertions made in the context of the current disability claim can be interpreted as an assertion of continuous or recurrent symptoms of the claimed disability since service, the Board finds that these more recent assertions are outweighed by the other, more contemporaneous, lay and medical evidence of record, both in service and after service, and are not reliable. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds that the Veteran's assertions of continuous or recurrent symptoms of the claimed disability after service are not accurate because they are outweighed by other evidence of record that includes the more contemporaneous service treatment records, which are entirely negative for any symptoms, reports, findings, treatment, or diagnosis of the claimed disability; the multiple post-service treatment records recording histories provided by the Veteran of symptoms of the claimed disability beginning many years after service separation, as outlined above; and the lack of any documentation of reports or treatment for the claimed disability for many years after service separation, also outlined above. As such, the Board does not find that the evidence sufficiently supports continuous or recurrent symptoms of the claimed disability since service so as to warrant a grant of service connection. Finally, the Board finds that the weight of the competent medical evidence weighs persuasively against a finding of a medical nexus between the current disability and active service, including asbestos and/or herbicide exposure. In this regard, there are no favorable competent medical opinions of record, and the medical evidence of record does not otherwise suggest that there is an etiological relationship between any of the claimed disabilities and active service, including herbicide exposure. Although the appellant's representative cited information from the National Cancer Institute that, "Some studies have found an association between asbestos exposure and esophageal cancer, but the overall results of epidemiologic studies are mixed," this generalization is not specific to the Veteran and his unique medical history. As such, the Board affords it very little probative value. Rather, the Board affords greater probative value to the opinions of the VA clinicians who, after a thorough review of the Veteran's treatment records, opined that his diagnosed esophageal cancer was less likely than not related to service, to include in-service exposure to asbestos and/or herbicide agents, and less likely than not caused or aggravated by a service-connected disability. To the contrary, these VA examiners indicated that it was more likely that his esophageal caner was caused by heavy alcohol consumption and chronic tobacco use for a period of many years. The Board acknowledges the belief of the appellant and the Veteran that his claimed disability was related to his active service. However, their statements alone do not establish a medical nexus. Indeed, while the appellant is and the Veteran was competent to provide evidence regarding matters that can be perceived by the senses, they have not been shown to be competent to render medical opinions on questions of etiology. See Jandreau, 492 F.3d 1372; see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology). As such, as laypeople, they are without the appropriate medical training and expertise to offer an opinion on a medical matter, including the diagnosis, etiology, or causation of a specific disability. The question of diagnosis and causation, in this case, involves complex medical issues that neither the appellant nor Veteran are competent to address. Jandreau, supra. (Continued on the next page) Based on the evidence of record, the weight of the competent evidence demonstrates no relationship between the Veteran's esophageal cancer and his military service, including no credible evidence of continuous or recurrent symptoms of the esophageal cancer during active service, continuous or recurrent symptoms following service separation, or competent medical evidence establishing a link between the claimed disabilities and active service, including asbestos and/or herbicide exposure. Additionally, the weight of the competent evidence demonstrates no relationship between the Veteran's esophageal cancer and hi service-connected disabilities, with respect to both causation and aggravation. Therefore, the Board finds that the probative lay and medical evidence of record weighs persuasively against the claim of entitlement to service connection for esophageal cancer, and outweighs the Veteran's more recent contentions regarding in-service continuous or recurrent symptoms and continuous or recurrent post-service symptoms of the claimed disability. For these reasons, the claim must be denied. The evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anthony M. Flamini 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.