Citation Nr: 0717857 Decision Date: 06/14/07 Archive Date: 06/26/07 DOCKET NO. 05-12 585 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for bladder cancer, to include as due to Agent Orange exposure and/or diesel fuel exposure. REPRESENTATION Appellant represented by: A. Ray Martin and Robert D. Ford, Agents WITNESSES AT HEARING ON APPEAL Appellant and a former service comrade ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The veteran had active military service from January 1969 to November 1972. This appeal to the Board of Veterans' Appeals (Board) initially arose from a July 2003 rating decision that denied service connection for bladder cancer. The veteran filed a notice of disagreement (NOD) in June 2004, and the RO issued a statement of the case (SOC) in March 2005. The veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2005. In March 2006, the veteran and his former service comrade testified during a videoconference hearing before the undersigned Veterans Law Judge; a transcript of the hearing is of record. After the hearing, the veteran (through one of his agents) submitted to the Board copies of additional documents previously submitted to, but not reviewed by, the RO. Given the Board's favorable disposition of the claim (as indicated below), the veteran is not prejudiced by the Board's consideration of this evidence, in the first instance. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. Service records establish that the veteran served in the waters offshore of Vietnam during the Vietnam era, and he and a former service comrade have credibly asserted the veteran's visitation to the Republic of Vietnam, as well as the veteran's exposure to diesel fuel, during the time frame in question. 3. Although the veteran's exposure to herbicides, to include Agent Orange, is presumed, his diagnosed bladder cancer is not among the disabilities recognized by VA as associated with such exposure. 4. Uncontroverted medical opinions collectively indicate that the veteran's in-service exposure to Agent Orange and/or diesel fuel caused or contributed substantially to the development of bladder cancer. CONCLUSION OF LAW Resolving all reasonable doubt in the veteran's favor, the criteria for service connection for bladder cancer, as due to Agent Orange exposure and/or diesel fuel exposure, are met. 38 U.S.C.A. §§ 1110, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 and Supp. 2006) include enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2006). Considering the service connection claim on appeal in light of the above, and in view of the Board's favorable disposition of the claim, the Board finds that all notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. II. Analysis Service connection may be granted for disability resulting from a disease or injury incurred in or aggravated in the line of duty while in the active military, naval, or air service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2006). Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2006). Absent affirmative evidence to the contrary, there is now a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. See 38 U.S.C.A. § 1116(f) (West 2002) and 38 C.F.R. § 3.307(a)(6)(iii) (2006). In this case, the veteran asserts that he served aboard a naval vessel that was stationed in the waters offshore of Vietnam. The veteran further states that he disembarked the vessel in Vietnam several times for shore assignments, including on April 8, 1970 for briefings in Da Nang, Vietnam. Service personnel records indicate that the veteran was awarded the Vietnam Service Medal with one Bronze Star as well the Republic of Vietnam Campaign Medal for services on board the U.S.S. Josephus Daniels from April 9, 1970 to September 8, 1970. The veteran's DD Form 214 reflects that his military occupational specialty (MOS) was Radio Operator. When asked to furnish dates of service in Vietnam for the veteran, the National Personnel Records Center (NPRC) informed VA in February 2003 that the veteran was on board ships in the official waters of Vietnam from April 9, 1970 to May 6, 1970, from May 25, 1970 to June 26, 1970, from July 15, 1970 to August 8, 1970, and from August 27, 1970 to September 1970. The NPRC further indicated that the veteran's personnel record did not contain enough information to make a definitive statement regarding in country service. Deck/ship logs from the Department of the Navy were associated with the record and show that the U.S.S. Josephus Daniels was anchored in Da Nang Harbor, Vietnam for 6 1/2 hours on April 8, 1970. A 1970 chronology report for the U.S.S. Josephus Daniels from the Department of the Navy shows that a brief stop was made in Da Nang for briefings on April 8. During his March 2006 hearing as well as in multiple written statements, the veteran reports that he was exposed to Agent Orange when going ashore in Vietnam as well as while he was onboard a ship in the waters offshore. Additionally, the record includes a February 2003 statement as well as March 2006 hearing testimony from a former service comrade who reported that he had served with the veteran on the U.S.S. Josephus Daniels. The comrade stated without hesitation that he and the veteran had disembarked the vessel and stepped foot on shore in Vietnam. Given the evidence noted above, and affording the veteran the benefit of the doubt by accepting the veteran and his former service comrade's statements as credible, the Board finds that the veteran had service in the waters offshore of Vietnam that involved visitation in the Republic of Vietnam. As this constitutes service in Vietnam during the Vietnam Era, the veteran is presumed to have been exposed to herbicides. If a veteran was exposed to an herbicide agent (to include Agent Orange) 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 if 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, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, chronic lymphocytic leukemia (CLL), Type 2 diabetes (also known as Type 2 diabetes mellitus or adult-onset diabetes), acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea), and soft-tissue carcinomas (other than osteosarcoma, Kaposi's sarcoma, or mesothelioma). See 38 C.F.R. § 3.309(e) (2006). Thus, a presumption of service connection arises for a Vietnam veteran (presumed exposed to Agent Orange) who develops one of the aforementioned conditions. In this case, private treatment records dated from 1997 to 2000 as well as a June 2003 VA examination report reflect diagnoses including persistent bladder cancer and bladder carcinoma invasive to the prostatic urethra and prostate gland. Hence, competent medical evidence establishes that the veteran suffers from the claimed disability of bladder cancer. However, bladder cancer is not one of the enumerated diseases associated with Agent Orange exposure under 38 C.F.R. § 3.309(e) (2006). (Parenthetically, the Board also notes that the Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See, e.g., Notice, 68 Fed. Reg. 27,630-41 (May 20, 2003). See also Notices at 61 Fed. Reg. 57,586-589 (1996); 64 Fed. Reg. 59,232-243 (1999); 67 Fed. Reg. 42,600-608 (June 24, 2002)). Accordingly, in this case, there is no basis for a grant of presumptive service connection based on the veteran's presumed herbicide exposure. Notwithstanding the presumption, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disability or death was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C.A. §§ 1113(b) and 1116, and 38 C.F.R. § 3.303. The Board also points out that, as the veteran has not limited his claim for service connection for bladder cancer to Agent Orange exposure, evidence of a nexus between his current disability and any in-service injury or disease (to include claimed in-service Agent Orange and/or diesel fuel exposure) may provide a basis for granting service connection. In this case, the veteran has asserted that, in addition to Agent Orange, he was exposed to diesel fuel during active service during weekly ship refueling duties as well as during a naval initiation ritual ceremony. Service personnel records show that the veteran was initiated into the Solemn Mysteries of the Ancient Order of the Deep after crossing the Equator on May 20, 1970. The record includes a May 2004 statement as well as March 2006 hearing testimony from a former service comrade who reported that he had served with the veteran on the U.S.S. Josephus Daniels. The comrade indicated that the veteran had been exposed to diesel fuel during active service. Again, resolving reasonable doubt in the veteran's favor, the Board accepts the veteran and his fellow service comrade's assertions concerning in-service diesel fuel exposure as credible, which, thus, supports a finding of diesel fuel exposure in addition to his presumed Agent Orange exposure. While there is no objective evidence to document actual exposure to Agent Orange and/or diesel fuel during active service, the Board notes that there is also no objective evidence to directly contradict the veteran's assertions of such exposure. As such, the Board now turns to the question of the medical evidence supports a finding that there exists a medical relationship, or nexus, between the veteran's current bladder disability and in-service injury or disease (in this case, Agent Orange exposure and/or diesel fuel exposure). At the outset, the Board notes that the veteran has submitted a copy of an April 2002 decision in which the Board granted service connection for bladder cancer, as a result of exposure to petroleum products or Agent Orange, to another veteran. Although the Board strives for consistency in issuing its decisions, previously issued decisions will be considered binding only with regard to the specific case decided. Prior decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of the appellate procedures and substantive law. See 38 C.F.R. § 20.1303 (2006). Therefore, the submitted decision, which does not involve this veteran, is not binding and does not control the outcome of this appeal. The veteran also has submitted an October 2001 private medical opinion which indicated it is more likely than not that exposure to Agent Orange in Vietnam cause, or contributed substantially to bladder cancer. This medical opinion also has no probative value, as it was issued by a physician treating another veteran and does not address this appellant or reference the particular facts involved in his appeal. However, the record does contain medical opinion evidence that is pertinent to question of medical relationship between bladder cancer and service for this veteran. In a September 2003 private medical opinion, a physician, Dr. Schecter, noted that the veteran had developed a relatively aggressive bladder cancer. The physician further opined that given his otherwise healthy lifestyle, the veteran's exposure to Agent Orange would be a reasonable explanation for the development of cancer or a contributory factor. Additionally, in an August 2003 statement, an additional private physician, Dr. Lamm, indicated that it was apparent that the veteran had been exposed to Agent Orange and diesel fuel. He further noted that diesel fuel exposure was a well recognized bladder carcinogen. Dr. Lamm stated that the veteran's early onset of highly aggressive bladder cancer coupled with his lack of genetic or other environmental causes, it was highly probable that his malignancy and current bladder disability were related to Agent Orange and diesel fuel exposures. In an additional November 2005 statement, Dr. Lamm highlighted that the veteran had no family history of cancer, had only brief, insignificant exposure to tobacco, and had no exposure to other known carcinogens. The physician opined, based on the preponderance of his own research and treatment of the veteran, that exposure to Agent Orange and diesel fuel while serving in Vietnam caused or substantially contributed to the veteran's development of aggressive bladder cancer. While neither of one of these medical opinions definitively establishes a direct link between the veteran's bladder cancer and in-service Agent Orange and/or diesel fuel exposure, the Board finds that the collective medical opinion evidence provides some indication that the veteran's bladder cancer is likely related to in-service Agent Orange and/or diesel fuel exposure. The Board also finds supportive of the medical opinion evidence the 2005 Gulf War and Health article from the National Academy of Sciences (submitted by the veteran In February 2006), that reflects a conclusion that results of studies taken together constitute limited or suggestive evidence of an association between combustion products and bladder cancer (even though a definitive association could not be established). Significantly, there is no contrary medical opinion evidence of record. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one that exists because an approximate balance of positive and negative evidence which does satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Given the totality of the evidence, to include the veteran's current bladder cancer disability, his presumed Agent Orange exposure, the veteran's and his former service comrade's credible assertions, to include of in-service diesel fuel exposure, and the collective medical opinion evidence addressed above, and resolving all reasonable doubt on the question of claimed in-service exposure in the veteran's favor, the Board finds that the criteria for service connection for bladder cancer, as due to Agent Orange exposure and/or diesel fuel exposure, are met. ORDER Service connection for bladder cancer, as due to Agent Orange exposure and/or diesel fuel exposure, is granted. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs