Citation Nr: 1754213	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  04-39 650	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to service connection for stomach cancer, postgastrectomy dumping syndrome, to include as secondary to peptic ulcer disease.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

P. M. Johnson, Counsel


INTRODUCTION

The Veteran served on active duty from April 1968 to March 1970.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  

In October 2007, the Veteran testified at a videoconference hearing before the undersigned.  A copy of the transcript has been associated with the claims file.

The Board remanded the above-referenced issue in February 2008, January 2011, and January 2017.  Review of the completed development reveals that, at the very least, substantial compliance with the remand directives was obtained. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  


FINDINGS OF FACT

1. The Veteran's residuals of gastric adenocarcinoma, including postgastrectomy dumping syndrome, were not incurred in, or aggravated by, his period of active service.

2. The Veteran's residuals of gastric adenocarcinoma, including postgastrectomy dumping syndrome, were not caused by, or aggravated by, his service-connected peptic ulcer disease. 


CONCLUSION OF LAW

The criteria for service connection for the residuals of gastric adenocarcinoma have not been met.  38 U.S.C. §§ 1110, 1110, 1112, 1137, 5107 (2014); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309, 3.310 (2017). 

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Entitlement to Service Connection for Gastric Adenocarcinoma

The Board has reviewed all of the evidence in the Veteran's claims file with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Consequently, the following discussion will be limited to the evidence the Board finds to be relevant.

In May 2004, the Veteran indicated his contention that his stomach cancer was due to his peptic ulcer disease.  "My stomach cancer, postgastrectomy dumping syndrome is a direct result from my peptic ulcer condition."  He elaborated upon this in the following February 2005 statement, "It has been determined that the stomach cancer condition was claimed incorrectly.  It should have been claimed as secondary to the peptic ulcer condition.  I was advised that this condition had or was brought on by my peptic ulcer.  I refer back to the Memphis VA treatment records showing I was admitted for gastric cancer.  It is documented that I have it, regardless if it is called gastric or stomach cancer."  Unfortunately, as will be discussed in detail below, whether characterized as gastric or stomach cancer, the competent evidence of record weighs against the Veteran's claim that his gastric adenocarcinoma is due to his service-connected peptic ulcer condition or that the condition was incurred during his period of active service.  

In general, service connection may be granted for a disability or injury incurred in or aggravated by active service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service.  38 C.F.R. § 3.303(d).

Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and the disease or injury incurred or aggravated during service.  See Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004).  

Service connection may also be granted for disability which is proximately due to, or aggravated by, a service-connected disease or injury.  38 C.F.R. § 3.310 (a). "When aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation." Allen v. Brown, 7 Vet. App. 439 (1995).

In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006).  The evaluation of evidence generally involves a three-step inquiry: (1) determining the competency of the source; (2) determining credibility, or worthiness of belief, and (3) weighing its probative value.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007); Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995).

A layperson is competent to report on the onset and continuity of current symptomatology based on personal knowledge.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if the layperson: (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis, or (3) is describing symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, at 1376-77 (Fed. Cir. 2007).

"Competent lay evidence" is any evidence not requiring that the proponent have specialized education, training or experience, but is provided by a person who has the knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2); Layno, at 469-70 (1994).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 

Additionally, several alternative paths to service connection exist for certain chronic diseases identified in 38 C.F.R. §3.309(a), including malignant tumors.  38 C.F.R. § 3.309.  Service connection may be awarded if a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the Veteran presently has the same condition, unless the condition is clearly attributable to intercurrent causes.  38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309; see Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013).  The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has also been interpreted as an alternative path to service connection for the chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker, at 1331.  

The Board finds, however, that service connection for the Veteran's gastric adenocarcinoma or its residuals is not available under 38 C.F.R. §3.309(a) as there is no evidence that the Veteran developed gastric cancer during service or within a year of separation from service.  The Veteran's service treatment records are silent for a report of any type of malignant cancer during service.  His evaluation at separation does not report any suspicion of a malignant tumor of any kind and no diagnosis of gastric cancer was provided until more than twenty years after separation from service.  Further, the Veteran's own statements have indicated his belief that his stomach cancer began many years after service due to his service-connected peptic ulcer disease.  As none of the evidence of record indicates that the Veteran's stomach cancer began during service, or within a year of separation from service, the Board finds that service connection for stomach cancer is not warranted under 38 C.F.R. §3.309.  

Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if service involved duty or visitation in Vietnam.  38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313.  This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309.  Here, the Veteran's had service in the Republic of Vietnam during the appropriate period and his exposure to herbicide agents is conceded.  Unfortunately, gastric adenocarcinoma is not listed as a condition that is presumed to be the result of exposure to herbicides.  38 C.F.R. § 3.309 (e) (2017).

Nevertheless, when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a another basis.  Combee v. Brown, 34 F. 3d. 1039 (Fed. Cir. 1994).  As such, the Board will also consider whether service connection is warranted based upon exposure to herbicides without the presumption, otherwise warranted on a direct basis, or as secondary to any of his service-connected conditions. 

An August 1995 discharge summary from the Memphis VA Medical Center notes that the Veteran was being seen for a resection of a gastric adenocarcinoma.  The physician stated that the condition was discovered on June 12, 1995 due to the presence of a suspicious antral ulcer with pathology of adenocarcinoma.  

In October 2003, a gastroenterologist, M.K., noted that the Veteran's tumor arose from a background of chronic active gastritis with intestinal metaplasia, focal adenomatous change and focal atrophy.  

The Veteran was provided a VA medical opinion in May 2010.  The examiner stated that the Veteran had a current diagnosis of antral adenocarcinoma, status post partial gastrectomy.  The examiner stated that the Veteran had a "subtotal radical gastrectomy, upon diagnosis of "stomach cancer" in 1995, and since then has a "finicky" stomach."  The examiner also noted that the Veteran had a history of peptic ulcer disease.  The examiner opined that the Veteran's stomach cancer was less likely than not related to a disease or injury in the service. 

Additional VA medical opinions were obtained in 2017.  In April 2017, a VA examiner opined that the Veteran's stomach cancer was less likely than not related to his service-connected peptic ulcer disease.  The examiner stated that medical evidence has not demonstrated a well-known causal relationship between a history of peptic ulcer disease and the development of gastric carcinoma.  The examiner cited to an article titled "Peptic ulcer and cancer: an examination of the relationship between chronic peptic ulcer and gastric carcinoma."  The article notes that two large autopsy surveys have been conducted to determine whether there is a relationship between the two conditions.  The article notes that "in both studies, a lower than expected occurrence of co-existent gastric cancer was found in subjects with pathological evidence of active or past gastric and duodenal ulceration."  Further, the article stated that it failed to identify an increased risk of gastric carcinoma in patients with chronic gastric ulcer.

An addendum medical opinion obtained in July 2017 stated that based upon the evidence of record that it was less likely than not that the Veteran's adenocarcinoma was either caused by, or aggravated by, his period of active service.  

In 2017, the Veteran submitted an article from the American Cancer Society titled "Do we know what causes stomach cancer."  The article states that there are many known risk factors for stomach cancer, but it is not known exactly how these factors cause cells of the stomach lining to become cancerous and that it is the subject of ongoing research.  The article notes that with chronic atrophic gastritis "some people with this condition go on to develop pernicious anemia or other stomach problems, including cancer.  It is not known exactly how this condition might progress to cancer." 

Unfortunately, the Board finds that the evidence of record weighs against a finding that the Veteran's stomach cancer was caused by, or aggravated by, either his service-connected peptic ulcer disease or any other incident of his active service.  To the extent that the Veteran has argued that there is a direct link between his stomach cancer and his service-connected peptic ulcer disease, the Board finds that the Veteran is not competent to make such a diagnosis.  The presence of an etiological relationship between two complicated gastrointestinal conditions, particularly, the development of a malignant tumor is beyond the scope of lay diagnosis.  See Jandreau, at 1376-77.  

The Board recognizes that the Veteran is competent to report a contemporaneous diagnosis and that he was told that his condition "was brought on by my peptic ulcer." Id.  While the Board finds this statement to be credible, the Board finds that it is outweighed by the other competent evidence of record.  Notably, the Board finds the opinion of the 2017 VA examiner to be the evidence of greatest weight of record regarding whether an etiological relationship exists between the Veteran's service-connected peptic ulcer disease and his gastric adenocarcinoma.  The examiner noted that current medical research does not indicate a likely relationship between these conditions and cites a medical article that references that two detailed studies (one taking place over twenty years and the other using over 7,000 autopsies) that failed to identified an increased risk of gastric carcinoma in patients with chronic gastric ulcer.  The examiner notes review the Veteran's specific medical history and notes the lack of a known medical correlation between his diagnosed conditions.  

The Board finds that the 2017 examination opinion to be of greater weight than the opinion reported by the Veteran as the opinion is provided specifically noting the at least as likely as not standard required for service connection claims and it is supported by medical literature that is considered in relation to the Veteran's medical history.  The opinion reported by the Veteran does not specifically note the standard being considered by the physician and it is unclear on what rationale the opinion has been made.  See Nieves-Rodriguez v. Peake, 22 Vet App. 295, 303   (2009) (noting that the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion).  Accordingly, the Board finds the 2017 examination opinion to be of greater weight than the opinion reported by the Veteran.
 
While the Veteran's medical records state that his cancer "arose from a background" of peptic ulcer disease, this notation of a prior gastrointestinal disease does not indicate that the prior condition at least as likely as not caused his subsequent cancer.  Additionally, the American Cancer Society article submitted by the Veteran states that there are many known risk factors for stomach cancer, but it is not known exactly how these factors cause cells of the stomach lining to become cancerous.  While it indicates that "chronic gastritis" may be a risk factor for gastric cancer, the Board notes that the article does not identify peptic ulcer disease or any service-connected condition as a risk factor for stomach cancer.  As neither of these documents report that the Veteran's stomach cancer at least as likely as not is the result of his peptic ulcer disease, the Board finds that they are of less probative weight than the opinion provided by the 2017 VA examiner.  

The Board, therefore, finds that the evidence of record weighs against a finding that the Veteran's service connection for gastric adenocarcinoma is secondary to his service-connected peptic ulcer disease. 38 C.F.R. § 3.310 (a). 

The Board also finds that the evidence weighs against the Veteran's claim for service connection on a direct basis, including as due to exposure to herbicides.  Specifically, none of the competent evidence of record indicates that the Veteran's adenocarcinoma is due to his service on a direct basis.  The Veteran himself has not contended that any incident of his period of service, including his exposure to herbicides, caused his gastric adenocarcinoma.  The Veteran has repeatedly asserted his belief that his cancer warranted service connection on a secondary basis.  Further, both the 2010 and 2017 examiners reviewed the Veteran's claims file and opined that it was less likely than not that the Veteran's stomach cancer was due to any incident of his period of service on a direct basis.  Based upon this evidence, the Board finds that the preponderance of the evidence is against the Veteran's service connection claim for gastric adenocarcinoma on a direct basis. 38 C.F.R. § 3.303.

As the preponderance of the evidence is against the Veteran's claim for service connection on a direct and secondary basis, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C. § 5107(b) (2014); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Duties to Notify and Assist

Finally, VA has met all statutory and regulatory notice and duty to assist provisions and the Veteran has not asserted otherwise.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016).


ORDER

Entitlement to service connection for the residuals of gastric adenocarcinoma, including as secondary to service-connected peptic ulcer disease, is denied.




____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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