Citation Nr: 1301092 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 11-29 875 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for bladder cancer including as due to exposure to Agent Orange or other chemicals (such as acetone, trichloroethylene, carbon tetrachloride and CARC). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from March 1953 to March 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied entitlement to the benefit sought on appeal. The appellant appealed the decision to the Board, and the case was referred to the Board for appellate review. When the case was last before the Board in May 2012, it was remanded for additional development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. If VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that such exam is an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion must support its conclusion with an analysis the Board can consider and weigh against other evidence in the record. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). In the May 2012 Board remand, the RO/AMC was instructed to schedule the Veteran for a VA examination with an appropriate specialist to obtain an opinion on the etiology of the Veteran's bladder cancer. The examiner was instructed to review the entire claims file, including the Veteran's service treatment records, other medical records, and lay statements pertaining to chemical exposure and tobacco use history. The examiner was requested to provide an opinion as to whether it is at least as likely as not that the Veteran's bladder cancer is causally related to his exposure to chemicals during his 30-year military history or any other incident during his period of active duty. The examiner was further instructed to reconcile his or her opinion with the February 2011 VA medical record noting that bladder cancer "could be related to past chemical exposure." The Veteran underwent a VA examination in July 2012. The report of that examination indicates that the claims file was reviewed. The examiner opined that the Veteran's bladder cancer is less likely than not related to the claimed in-service event, injury, or illness. The examiner reasoned that, after reading various medical articles and papers, the medical literaure lists polyaromatic chemical forms and a non-specific reference to "herbicides" as risk factors for bladder cancer. However, the examiner pointed out that the medical articles and papers do not cite their sources and do not mention Agent Orange specifically. They further state that the risk is very small and the National Institute of Medicine has bladder cancer listed under insufficient evidence. The examiner also indicated that MEK, acetone, and toluene are associated with kidney and liver cancer and malignancies of the blood system; however, no causal links with bladder cancer are noted. The examiner opined that based upon the scientific evidence available, it is less likely than not that Agent Orange and the simple organic chemicals the Veteran described being exposed to are related to his bladder cancer. Regarding the February 2011 VA treatment record, the July 2012 VA examiner stated that the stated opinion is vague and does not identify specific exposures or chemicals which might be related to the Veteran's bladder cancer. The VA examiner stated that it is impossible to verify or deny such a broad, generic statement as "possible" and the VA examiner felt that "possible" does not rise to the required level of fifty percent probable. Initially, the Board notes that although the VA examiner stated that the claims file was reviewed, the examiner did not address any of the Veteran's service treatment records which reflect complaints of urinary problems. Notably, a January 1967 service treatment record reflects complaints of urinary frequency and occasional dysuria. The Veteran's urine was noted to be alkaline. The impression was questionable cystitis and a trial of medication was begun. A January 1972 service treatment record reveals that the Veteran possibly had a kidney stone. A September 1972 service treatment record notes that the Veteran complained of pain in the perineum and mild dysuria. The impression was urinary tract infection but it was noted to be questionable. A sitz bath was recommended. A September 1973 service treatment record notes that the Veteran had frequent urination for two days. A July 1974 service treatment record reflects complaints of burning on urination. The assessment was questionable nonspecific urethritis. The plan included a urinalysis, which was noted to be within normal limits with the exception of occasional budding yeast. Fluids were recommended along with prescription Flagyl. Service treatment records dated in August 1977 reflect complaints of dysuria. The impression was urinary tract infection. A September 1977 service treatment record also reflects that the Veteran had a urinary tract infection. The VA examiner also did not address the VA treatment records dated in May and June 1995, which reflect complaints of hematuria and dysuria and a diagnosis of cystitis. Additionally, the VA examiner did not comment on the Veteran's reported history of tobacco use, nor did the VA examiner address the February 2011 VA physician's opinion that the Veteran's bladder cancer was very unusual in a non-smoker. For these reasons, the Board finds that the July 2012 VA opinion is inadequate for adjudication purposes. Therefore, a remand is required in order to obtain a medical opinion regarding whether the Veteran's bladder cancer is causally related to any other incident of service (other than chemical exposure) which takes into account all of the above-listed evidence. Moreover, since the July 2012 VA examination was conducted, private treatment records were added to the claims file in September 2012. These treatment records from MUSC/HCC include a February 2011 notation stating that the Veteran has a very minimal history of smoking and has no smoking for 50 years; therefore, the diagnosis of bladder cancer is unusual. It was also noted that the Veteran did report an extensive history of plastic-chemical exposures, which "could well contribute to his diagnosis of bladder cancer." As such, the VA examiner is requested to comment on this newly submitted evidence as well. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Return the claims file, to include a copy of this remand, to the July 2012 VA examiner, or appropriate substitute if unavailable. Request that the examiner review the claims file, to specifically include the service treatment records dated in 1967, 1972-1974, and 1977 showing complaints of urinary frequency, dysuria, and burning on urination, and findings of alkaline urine, possible kidney stone, urinary tract infection, urethritis, and budding yeast in the urine; the post-service medical evidence in 1995 showing complaints of hematuria and dysuria and a diagnosis of cystitis; the February 2011 VA physician's statement that the Veteran's bladder cancer is unusual because he is a non-smoker; the February 2011 private medical record stating that the diagnosis of bladder cancer is unusual given the Veteran's tobacco use history; and the service treatment records (dated in January 1957, January 1968, January 1969, and June 1981) and VA treatment records (dated in November 2008, March, June, July and August 2009, May 2010, July 2010, February 2011), which show the Veteran's widely varied self-reported history of tobacco use or non use. Based upon a review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's bladder cancer is etiologically related to his service, to include the 1967, 1972-1974, and 1977 urinary complaints and diagnoses. The examiner must specifically address the above listed service and post-service treatment records in rendering such an opinion. The examiner should also comment on the Veteran's tobacco use history as it pertains to his diagnosis of bladder cancer, as well as on the February 2011 VA and private opinions that bladder cancer is unusual in a non-smoker or in an individual with a minimal smoking history such as the Veteran. A clear rationale for all opinions must be provided. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and the examiner should explain why an opinion would be speculative, including noting whether there is additional information that could enable the examiner to provide the necessary opinion or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. After the development requested above has been completed to the extent possible, review the record and readjudicate the claim for entitlement to service connection for bladder cancer. If the benefit sought on appeal is not allowed, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).