Citation Nr: 0000421 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 98-08 760 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for esophageal cancer. REPRESENTATION Appellant represented by: Georgia Department of Veterans Service WITNESS AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD C. S. Freret, Counsel INTRODUCTION The appellant had active military service from March 1966 to January 1968. This appeal comes before the Board of Veterans' Appeals (Board) from a rating decision by the Department of Veterans Affairs (VA) Atlanta, Georgia, Regional Office (RO). FINDINGS OF FACT 1. The appellant's active military service included active duty in Vietnam during the Vietnam era. 2. Esophageal cancer is not one of the diseases for which an etiological relationship to Agent Orange exposure may be presumed. 3. There is no competent evidence of a nexus between the appellant's current esophageal cancer and inservice disease or injury. CONCLUSION OF LAW The appellant has not submitted a well-grounded claim for service connection for esophageal cancer. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.303(d), 3.307, 3.309 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant claims that his esophageal cancer is related to Agent Orange exposure in Vietnam. Evidence in the claims file shows that he had active duty in Vietnam during the Vietnam era. The regulations pertaining to Agent Orange exposure, revised to include all herbicides used in Vietnam, provide for a presumption of exposure to herbicide agents for veterans who served on active duty in Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6). The regulations also stipulate the diseases for which service connection may be presumed as a result of an association with exposure to herbicide agents. 38 C.F.R. § 3.309(e). The Secretary of Veterans Affairs formally announced in the Federal Register, on January 4, 1994, that a presumption of service connection based on exposure to herbicides used in Vietnam was not warranted for certain conditions or for "any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted." 59 Fed. Reg. 341 (1994). A chronic, tropical, or prisoner-of-war related disease, or a disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309 will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. No condition other than one listed in 38 C.F.R. § 3.309(a) will be considered chronic. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116; 38 C.F.R. § 3.307(a). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; multiple myeloma; Non- Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancers 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 diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6). While VA medical records show that the appellant was diagnosed with esophageal cancer in late 1997, the Board notes that esophageal cancer has not been identified by the Secretary as a disease for which the presumption of an etiological relationship to Agent Orange exposure attaches. Nor has there been any medical evidence presented which attributes the development of the appellant's esophageal cancer to Agent Orange exposure. Thus, the appellant's esophageal cancer may not be service-connected as a residual of Agent Orange exposure. Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A claimant filing for VA benefits has the duty to submit evidence that must "justify a belief by a fair and impartial individual" that the claim is plausible, and, therefore, well grounded. 38 U.S.C.A. § 5107(a). A claim is not well grounded if the claimant fails to present such evidence. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Evidentiary assertions by the claimant must be accepted as true for the purpose of determining if a claim is well grounded, except where such assertions are inherently incredible or beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19 (1993). For a claim of service connection to be well grounded, there must be competent evidence of current disability, of the incurrence or aggravation of a disease or injury during service, and of a nexus between the inservice injury or disease and the current disability. That is, an injury during service may be verified by competent medical or lay witness statements; however, the presence of a current disability requires a medical diagnosis; and, where an opinion is used to link the current disorder to a cause or symptoms during service, a competent opinion of a medical professional is required. Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110. Additionally, where a veteran served continuously for 90 days or more during a period of war, and a malignant tumor becomes manifest to a degree of 10 percent within one year from date of termination of 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Regulations also provide that service connection may be established where all the evidence of record, including that pertinent to service, demonstrates that the veteran's current disability was incurred in service. 38 C.F.R. § 3.303(d). The Board has carefully reviewed the evidence of record to determine if there is a well-grounded claim for service connection for esophageal cancer. The first element required to show a well-grounded claim is met because the medical evidence shows that the appellant has been treated since the October 1997 for esophageal cancer. Although the appellant stated at his July 1998 Regional Office hearing that his physician thought the initial cancer was in the lymph nodes and possibly non-Hodgkin's lymphoma, review of the appellant's medical records fails to reveal any medical opinion that indicates his cancer either began in the lymph nodes or is non-Hodgkin's lymphoma. However, the other elements for a well-grounded claim are not met. The second element of Caluza is not met because the service medical records do not show any complaint or finding of esophageal cancer. Nor does the evidence demonstrate manifestation of esophageal cancer within the first year after the appellant's separation from service. The third element required for a well-grounded claim is also not satisfied because the appellant fails to show the required nexus between his esophageal cancer and any injury or disease in service. There is no medical evidence establishing a link of the esophageal cancer to the appellant's active military service. See Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Franko v. Brown, 4 Vet. App. 502, 505 (1993). Medical diagnoses involve questions that are beyond the range of common knowledge and experience. Rather, they require the special knowledge and experience of a trained medical professional. Although the appellant has presented statements and testimony regarding his esophageal cancer, the record does not show that he is a medical professional, with the training and expertise to provide clinical findings regarding any etiological relationship of his esophageal cancer to service. Consequently, his lay statements, while credible with regard to his subjective complaints and history, are not competent evidence for the purpose of showing a nexus between current complaints and service. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Based upon the foregoing, the Board concludes that the appellant has failed to meet his initial burden of presenting evidence that his claim for service connection for esophageal cancer is plausible or otherwise well grounded. Therefore, it must be denied. Where the veteran has not met his initial burden, VA has no duty to assist him in developing facts pertinent to his claim, including no duty to provide him with a medical examination. 38 U.S.C.A. § 5107(a); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992) (where the claim was not well grounded, VA was under no duty to provide the veteran with an examination). However, in the limited circumstances where a claim for benefits is incomplete, and references other known and existing evidence, VA is obliged under 38 U.S.C.A. § 5103(a) to advise the claimant of the evidence needed to complete his application, and this duty must be based on the facts of each case. See Robinette v. Brown, 8 Vet. App. 69, 80 (1995). In this case, the RO substantially complied with this obligation in the statement of the case issued in June 1998. Moreover, this Board decision informs the appellant of the evidence that is lacking to make his claim for service connection for esophageal cancer well grounded. Unlike the situation in Robinette, he has not put VA on notice of the existence of any specific evidence that, if submitted, could make this claim well grounded. Although the RO did not specifically state that it denied the appellant's claim for service connection for esophageal cancer on the basis that it was not well grounded, the Board concludes that this error was not prejudicial to him. See Edenfield v. Brown, 8 Vet. App. 384 (1995). Accordingly, the Board denies the appellant's claim for service connection for esophageal cancer as not well grounded. ORDER The claim for service connection for esophageal cancer is denied. JEFF MARTIN Member, Board of Veterans' Appeals