Citation Nr: 0803308 Decision Date: 01/29/08 Archive Date: 02/08/08 DOCKET NO. 04-07 087A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUE Entitlement to service connection for post-operative residuals of bladder cancer, claimed as secondary to exposure to herbicides (Agent Orange) and/or petroleum products. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The veteran had active service from November 1967 to November 1970. He served in the Republic of Vietnam for one year. This appeal arose before the Board of Veteran's Appeals (Board) from an April 2003 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO). The Board in May 2006 remanded the case for development. It now returns for further review. FINDINGS OF FACT The competent and probative medical evidence is at least in approximate balance as to whether the veteran developed bladder cancer due to exposure to petroleum fuel products in service. CONCLUSION OF LAW Giving the benefit of the doubt to the veteran, the Board concludes that the criteria for service connection for post- operative residuals of bladder cancer are met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). As the Board here grants the complete benefit sought, there is no reasonable possibility that additional notice and development assistance will further the veteran's claim, and any development notice and assistance error is hence harmless. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an veteran need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. II. Claim for Service Connection for Post-operative Residuals of Bladder Cancer Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303(a) (2007). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also 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). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993). The veteran contends that service connection should be awarded for his diagnosed bladder cancer. He has stated that he was exposed to herbicides in service, as well as petroleum products, and that these exposures caused his cancer. Therefore, he believes that service connection should be awarded. The evidence of record indicates that the veteran was in Vietnam for one year; thus his exposure to herbicides is presumed. See 38 C.F.R. § 3.307(a)(6)(iii) (2007). He also served as a field radio repairman with the 514th Quartermaster Company, which dealt with petroleum storage. He has stated that, as a consequence of this service, he was exposed to petroleum fumes when the products were being off- loaded, as well as when there were spills and when the products were used to burn human waste. He has described numerous incidents in which he was soaked with jet, diesel, aviation, and motor fuel while repairing pipeline breaks, sustaining fuel burns on his skin and dizziness and burning of the eyes from the fumes. He asserts that this exposure resulted in the development of his bladder cancer. In October 2004, the veteran's urologist at Elmendorf Air Force Base stated that the veteran had undergone a radical cystoprostatectomy for invasive bladder cancer in August 2002. It was stated that the veteran "was exposed to aviation grade petroleum and diesel fuel during his service in the military. His bladder cancer is more than likely due to his exposures." Because a medical opinion with appropriate explanatory rationale is required to support a service connection claim, the Board in May 2006 remanded the case to obtain such an opinion addressing the claimed association between either herbicides exposure or petroleum products exposure and the subsequent development of bladder cancer. The veteran in turn submitted Occupational Safety and Health Administration (OSHA), industry, and other official documentation of effects of exposure to petroleum-based products, including gasoline and jet fuel, with data informing of an association between the exposure to such agents as jet fuel and subsequent development of cancer of the bladder. A VA examiner in July 2006 reviewed the claims file including pertinent toxicology and epidemiology literature, noted the veteran's significant exposure to petroleum products in service and not subsequently, and opined that it is at least as likely as not that the veteran's exposure to petroleum products in service caused his bladder cancer. The RO, in a supplemental statement of the case (SSOC) in September 2007, denied the claim on the stated basis that there is no regulation establishing a causal or presumptive association between the veteran's petroleum products exposure in service and subsequent development of bladder cancer. As pointed out by the veteran's representative in his December 2007 Informal Hearing Presentation before the Board, under controlling judicial caselaw, the absence of a regulation recognizing the claimed causal association does not preclude the veteran from supporting his claim with medical opinion evidence supporting the causal association. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In this, as in any other case, it remains the duty of the Board as the fact finder to determine credibility in any number of contexts, whether it has to do with testimony or other lay or other evidence. See Culver v. Derwinski, 3 Vet. App. 292, 297 (1992). In general, lay individuals may not render medical conclusions, see Espiritu v. Derwinski, 2 Vet. App. 492 (1992); however , a lay statement may be made which relays the visible symptoms of a disease or disability or the facts of observed situations or circumstances, see Caldwell v, Derwinski, 1 Vet. App. 466, 469 (1991), after which a decision must be made as to the credibility thereof in the context of probative medical evidence. More recently, the U.S. Court of Appeals for the Federal Circuit held, in Buchanan v. Nicholson, 451 F.3d 1331, 1336-7 (Fed. Cir. 2006), that the Board is obligated to, and fully justified in, determining whether lay testimony is credible in and of itself, and that the Board may weigh the absence of contemporary medical evidence against lay statements). The Board is not permitted to reach medical determinations without considering independent medical evidence to support our findings, and must cite to competent evidence of record to support such conclusions. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991), and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Lay statements may be competent to support a claim as to lay-observable events or lay-observable disability or symptoms. See, e.g., Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, supra. Here, the claims file contains two medical opinions providing the requisite causal link to service, the most recent of which noted clinical or toxicological evidence supporting that opinion. Cf. Bloom v. West, 12 Vet. App. 185, 187 (1999) (medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). The veteran has described his duties and his exposure to petroleum fuel products during service in extensive detail, and the Board has no reason to doubt the veracity of his statements. The evidence in this case does not clearly preponderate in favor of the veteran, nor does it clearly preponderate against him. In view of the foregoing, the Board will exercise its discretion to find that the evidence is in relative equipoise and conclude that the claim for service connection for post-operative residuals of bladder cancer, as secondary to exposure to petroleum products, may be granted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for postoperative residuals of bladder cancer is granted. ________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs