Citation Nr: 1551842 Decision Date: 12/10/15 Archive Date: 12/16/15 DOCKET NO. 09-06 386 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for papillary urothelial (transitional cell) carcinoma/bladder cancer, to include as due to in-service herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD G.R. Waddington, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1968. This matter is before the Board of Veteran's Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In September 2014, the Board remanded the appeal for an addendum opinion to determine that nature and etiology of the Veteran's bladder cancer. The RO obtained an addendum opinion and readjudicated the claim. November 2014 VA Opinion; January 2015 Supplement Statement of the Case (SSOC). This appeal was processed using the Virtual VA paperless claims processing system. Any future consideration of this case must account for the electronic record. FINDING OF FACT The Veteran's current bladder cancer relates to in-service herbicide exposure. CONCLUSION OF LAW The criteria for service connection for bladder cancer are satisfied. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 3.304 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran alleges that his current bladder cancer relates to in-service exposure to Agent Orange. See August 2006 Claim; October 2011 Statement of Accredited Representative. The claim for service connection for bladder cancer is granted. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); C.F.R. § 3.303(a). The Veteran was diagnosed as having bladder cancer in August 2006 and receives ongoing treatment for his condition. August & October 2006 Private Medical Records (PMRs); September 2007 Correspondence. He served in Vietnam between June 1967 and June 1968; consequently, the Veteran is presumed to have been exposed to herbicides while he was in service. See Form DD 214 (documenting the Veteran's receipt of the Republic of Vietnam Campaign Medal and Vietnam Service Medal); April 2007 Request for Information (confirming the Veteran's deployment to Vietnam); see also 38 C.F.R. § 3.307(a)(6)(2015) (stating that veterans who served in Vietnam between January 9, 1962 and May 7, 1975 are presumed to have been exposed to herbicide agents in service). The private medical evidence suggests that the Veteran's bladder cancer relates to service. In an August 2007 letter, the Veteran's private primary care physician suggested that a relationship between the Veteran's in-service herbicide exposure and his bladder cancer is possible. The following month (September 2007), another private physician opined that "[t]here is a known carcinogenic agent to the herbicides that may directly have caused the [Veteran's] bladder cancer." September 2007 Correspondence; see also August 2006 Claim (suggesting that the Veteran's doctor had associated the Veteran's bladder cancer with in-service herbicide exposure). In contrast, the January 2009 VA examiner opined that "it is less likely [than] not that his transitional cell cancer is related to herbicide exposure." The examiner based on his opinion on the fact that bladder cancer "is not on the presumptive list." In November 2014, a VA examiner opined that the Veteran's bladder cancer "is less likely than not (less than 50% probability) proximately due to or the result of the Veteran's service connected condition [diabetes]." The claims file was not available for review and that the examiner based his opinion on "minimal information, not really adequate for comprehensive review of the case." He confirmed that the Veteran "has transitional cell carcinoma of the urinary bladder," served in the republic of Vietnam during the Vietnam War, and that "exposure to Agent orange is conceded." He provided no clear rationale in support of his opinion-he "repeat[s] the opinion previously expressed, with due apologies." In November 2015, a VHA opinion was obtained. The examiner observed that Agent Orange has been "shown to cause birth defects in laboratory animals and is a suspected carcinogen." He elaborated to state that "[i]n the laboratory, dioxin is found to increase the risk of a wide variety of tumors in rats, mice, and hamsters" and that "the best available data" suggests "a degree of association between Agent Orange exposure and onset of certain tumors based on the best available data." Although the examiner noted that "population studies have failed to demonstrate a strong association between Agent Orange exposure and carcinogenesis in humans," he emphasized that "animal modes suggest that such an association exists." The examiner concluded that the "history of exposure to Agent Orange in this [the Veteran's] case could have possibly contributed to the onset of bladder cancer to some extent . . . it is impossible to quantify this contribution." The January 2009 and November 2014 VA opinions are not sufficient to make an informed decision on the Veteran's service-connection claim for bladder cancer due to in-service herbicide exposure. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The January 2009 examiner failed to provide an adequate rationale in support of his opinion that the Veteran's bladder cancer did not relate to service-the fact that VA does not automatically associate bladder cancer with exposure to certain herbicide agents does not establish that the Veteran's bladder cancer does not relate to in-service herbicide exposure. The November 2014 VA examiner's opinion is irrelevant as well as inadequate: it does not address the Veteran's contention that his bladder cancer is due to in-service herbicide exposure, rather the examiner opines that the Veteran's bladder cancer is not due to diabetes; by the examiner's admission, it is not based on a review of the Veteran's medical history. See August 2014 Informal Hearing Presentation; see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) ("[A] mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion."); see also Gabrielson v. Brown, 7 Vet. App. 36 (1994), Sklar v. Brown, 5 Vet. App. 140 (1993). The private medical opinions submitted by the Veteran as well as the November 2015 VHA opinion do not definitively attribute the Veteran's bladder cancer to in-service herbicide exposure. However, all three opinions suggest that such a nexus is likely given that-in the case of the November 2015 VHA examiner's opinion-laboratory findings clearly link exposure to Agent Orange to the development of tumors. In summary, the evidence is in equipoise. The benefit-of-the-doubt rule applies and service connection for bladder cancer is granted. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for bladder cancer due to in-service herbicide exposure is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs