Citation Nr: 1412930 Decision Date: 03/27/14 Archive Date: 04/08/14 DOCKET NO. 09-26 555 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for bladder/urethral cancer, to include as a result of exposure to herbicide (Agent Orange (AO)) exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from January 1966 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Oakland, California. FINDING OF FACT The Veteran's bladder/urethral cancer had its origin in service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, bladder/urethral cancer was incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102 , 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). As the Board is granting the full benefit sought on appeal as it relates to the claim of service connection for bladder/urethral cancer, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (VA Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Bladder/Urethral Cancer Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. Connecting the disability to service may be accomplished through statutory presumption or through affirmative evidence that shows inception or aggravation during service or that otherwise indicates a direct relationship between service and the current disability. 38 C.F.R. §§ 3.303(a), (d). The statutory presumptions and VA regulations implementing them are intended to allow service connection for certain diseases when the evidence might otherwise not indicate service connection is warranted. See 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including malignant tumors, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Further, with chronic disease shown as such in service, or within an applicable presumptive period, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When a chronic disease identity is established in service, or within an applicable presumptive period,, there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). VA regulations provide that a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era 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 C.F.R. § 3.307(a)(6)(iii). Certain diseases are deemed associated with herbicide exposure under current VA law. These diseases shall be service connected if a veteran was exposed to an herbicide agent during active military, naval, or air service, if the requirements of 38 U.S.C.A. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.A. §§ 501(a), 1116 (West 2002); 38 C.F.R. § 3.309(e). VA regulations specify that the last date on which a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(iii). The Board here observes that bladder cancer is not listed among those disorders for which service connection may be presumptively warranted based upon exposure to certain herbicide agents. The Secretary, under the authority of the Agent Orange Act of 1991 and based on the studies by the NAS, has determined that there is no positive association between exposure to herbicides and any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41,442-449, and 61 Fed. Reg. 57,586-589 (1996); Notice, 64 Fed. Reg. 59,232-243 (Nov. 2, 1999); Notice, 67 Fed. Reg. 42,600-08 (June 24, 2002); Notice, 72 Fed. Reg. 32,395-407 (June 12, 2007); Final Rule, 74 Fed. Reg. 21,258-260 (May 7, 2009); Final Rule, 75 Fed. Reg. 53,202-16 (Aug. 31, 2010). Notwithstanding the foregoing, a veteran may still establish service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167 (1999). "Of particular relevance to an analysis of medical evidence supporting such a nexus are factors such as whether a medical professional finds studies persuasive, whether there are other risk factors that might be the cause of the condition for which benefits are sought, and whether the condition has manifested itself in an unusual manner." Polovick v. Shinseki, 23 Vet. App. 48, 53 (2009). A statistical correlation between AO and a disease not on the presumptive list may not be the only basis for a positive nexus opinion, it may be part of the analysis, but the entirety of the analysis provided by the medical professional must be weighed and considered. Polovick, 23 Vet. App. at 53-54. The Board has reviewed all 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). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran contends that he is entitled to service connection for bladder/urethral cancer. He maintains that bladder/urethral cancer is a direct result of his exposure to dioxin (AO) in Vietnam. In statements presented throughout the duration of the appeal, the Veteran has maintained that his current bladder cancer is directly related to herbicide exposure during his active military service. The Veteran was diagnosed with urethral/bladder cancer in 2006. In support of his claim, the Veteran submitted an August 2008 letter from his private physician, A. T., M.D., indicating that the Veteran had been a long-time patient with known multifocal high-grade bladder cancer. He stated that the etiology of bladder cancer was multifactorial and included many environmental carcinogens. He opined that it was more likely than not that AO had contributed or was the outright cause for the Veteran's bladder cancer. In a January 2010 letter, Dr. T. again noted that the Veteran had been a patient of his practice for many years. He had multifocal superficial bladder cancers. He stated that carcinogen exposure had been irrefutably linked to the pathogenesis and progression of transitional cell carcinoma of the bladder, and specifically, aromatic amines and chemical compounds containing phenol groups. He referred to Campbell's Urology, Eighth Edition, page 2737. Dr. T reported that AO was a mixture of 2 phenoxyl herbicides: 2-4 dichlorophenoxyacetic acid and 2,5,5- trichlorophenoxyacetic acid. They were in fact esterized forms of phenoxl herbicide and both contained benzene rings. He indicated that given this information, there was no doubt that Agent Orange had been a significant factor in the etiology of the Veteran's cancer. In an August 2010 letter, Dr. T., in addition to including a photocopy from Campbell's Urology Book, indicated that most bladder carcinogens were aromatic amines. He also supplied a printout of what an aromatic amine was. He again noted the structure of AO and indicated that these chemical structures were almost identical to other known bladder carcinogens. He further stated that AO was also contaminated with Dioxins, specifically 2,3,7,8-tetrachlorodibenzodioxin (TCDD). He indicated that these organic compounds had been shown to bioaccumulate in humans and were known teratogens, mutagens, and carcinogens. He noted that he had come across numerous citations on the internet of patients with bladder cancer who were exposed to AO. He stated that it was his opinion that there was a link between AO and bladder cancer. He contended that there was a very real and plausible pathogenic basis for this link. In a December 2010 letter, Dr. T. stated that there seemed to be some confusion with respect to the terminology of aromatic and antiaromatic compounds. He noted that the term aromatic was originally meant to mean "benzene-like" and this was with reference to chemical reactions. He indicated that this did not specifically refer to a 6 carbon benzene ring. He noted that a different definition of aromatic referred to the chemical shifts in the NMR of protons attached to the ring system in question. He indicated that chemical shifts had resonance energies and if one compared the resonance energy of the cyclical compound to the open chain compound of a similar structure, you would either get positive or negative resonance energy. If the resonance energy was positive, it was referred to as aromatic. If the resonance energy was negative, it was referred to as antiaromatic. The term antiaromatic had nothing to do with the behavior of the cyclical compound. Dr. T. indicated that with respect to the research supporting the Veteran's claim, he had presented more than enough information to establish probable cause and effect. He further noted to please remember that in medical research, the lack of proof did not automatically establish the converse. That was to say, the lack of evidence supporting a direct relationship between bladder cancer and herbicides did not mean that a relationship did not exist. He indicated that an appropriate study would need to be undertaken to actually prove that a relationship did not exist. This was known as "proving the negative postulate" and was well accepted in medical research. In October 2013, the Board requested a VHA opinion with regard to the etiology of the Veteran's bladder/urethral cancer and its relation, if any, to his period of service, to include his exposure to AO while in Vietnam. The examiner was requested to render an opinion as to whether it was at least as likely as not (50 percent probability or greater) that the Veteran's bladder/urethral cancer was related to his period of service, to include exposure to herbicides/AO (which has been conceded) while in Vietnam. When rendering the opinion, the examiner was requested to comment on the opinions/medical evidence submitted by Dr. T. in support of the Veteran's claim. In December 2013, the requested opinion was received. The reviewer initially indicated that it was his opinion that the Veteran's bladder cancer was most likely (51 percent or greater, likely near 100 percent) due to protracted cigarette abuse/use noting estimated 40-60 pack per year cigarette exposure history from the Veteran's declarations, medical records from several physicians and centers, and disability review documents. The examiner stated that he could not exclude contribution of exposure to AO in the genesis of his superficial bladder cancer, but he adjudged and estimated the contribution of AO to bladder cancer at no more than 20 percent likelihood. The examiner then referenced an attached addendum report which he stated should be referenced for more detailed comments. In the attached detailed report, the examiner indicated that medical facts available for the opinion were from office notes of the various primary care and specialty treating physicians, military records, and cited medical literature. The VA examiner noted that the Veteran was 62 years old at the time of his diagnosis of superficial bladder cancer. The Veteran presented with urinary urgency and frequency and biopsies established the presence of transitional cell carcinoma. Relevant medical history included several documentations of 40 years of smoking cigarettes, quantified in some documents as 1-1.5 packs per day, for a calculated estimate of 40-60 pack-years of exposure. He noted that the habit appeared to have ceased after identification of a new right mid-lung nodule in 1999, at the time suspicious for primary lung cancer, and that several subsequent notes indicated that the Veteran was not smoking at the time of diagnosis of superficial lung cancer in late 2006. The examiner observed that the roles of cigarette smoking and inhalation of combusted tobacco products in the induction of cancers of several internal organ sites were well-documented and widely accepted. He indicated that the Campbell's Urology text provided by Dr. T, in defense of AO as the cause of the bladder cancer, clearly identified a fourfold incidence of bladder cancers in cigarette smokers, which risk persisted for up to 20 years after smoker cessation. He observed that the Veteran's bladder cancer was discovered some six years following his cessation of cigarette smoking. The examiner further indicated that actual physical exposure to AO in Vietnam was difficult to quantify, being influenced by time in at-risk zones, work/duty assignments, availability of proper cleansing procedures, and personal factors (penetrating injuries or wounds, ingestion). He noted that the Veteran appeared to have been in at-risk zones for a year or more, with primary assignment in developed bases. The VHA examiner then cited to other medical articles in support of his opinion. After citing to the above material, the examiner then stated that cigarette smoking and its consequences accounted for the majority (51 percent or more) of causation of the veteran's superficial bladder cancer. The examiner then went on to state that review cannot exclude a combination of less than 50 percent for chemical carcinogens to the induction of superficial bladder cancer in the Veteran. He indicated that there was a (judged) minimal exposure to AO in Vietnam and possible exposures to other suspect carcinogens through the Veteran's work in farming in California. However, none of the these influences would carry the same concern for cancer induction as would 40 pack-years of smoking. The Board finds that the Veteran served in Vietnam, thus, exposure to AO is recognized. While the Board observes that bladder cancer is not one the presumptive diseases listed in VA regulations, this does not prevent the Veteran from presenting evidence which would allow for service connection on a direct basis. In this regard, the Board notes that there have been several opinions rendered as to whether the Veteran's bladder cancer is related to his presumed AO exposure in service. In support of his claim, the Veteran has submitted statements from a private urologist who treated the Veteran for his bladder/urethral cancer. This physician indicated that it was more likely than not that the Veteran's bladder cancer was caused by his exposure to AO. Dr. T. provided medical literature to support his claim. In contrast, the December 2013 VHA examiner has provided conflicting opinions as to the relationship between the Veteran's bladder/urethral cancer and his exposure to AO. While noting that cigarette smoking and its consequences accounted for the majority (51 percent or more) of causation of the Veteran's superficial bladder cancer in his detailed report, the examiner then stated that a combination of less than 50 percent for chemical carcinogens to the induction of superficial bladder cancer in the Veteran could not be excluded, citing to the Veteran's AO exposure as one of the contributing factors. Based upon these conflicting statements, the Board finds this opinion of limited probative value, with at least a portion of the opinion providing support for the proposition that the Veteran's exposure to AO at least as likely as not contributed to his current bladder/ureteral cancer. In sum, the medical evidence of record is at least in equipoise as to whether the Veteran's bladder cancer is a result of his exposure to AO while in Vietnam; therefore, resolving reasonable doubt in favor of the Veteran, service connection is warranted for bladder/urethral cancer. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102. ORDER Service connection for bladder/urethral cancer is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs