Citation Nr: 1129986 Decision Date: 08/12/11 Archive Date: 08/23/11 DOCKET NO. 04-34 902 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for cancer of the bladder, to include as due to herbicide (Agent Orange) exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the Appellant, served on active duty from December 1968 to November 1970. This case comes to the Board of Veterans' Appeals (Board) on appeal of a July 2004 rating decision of the Boston, Massachusetts, Regional Office (RO) of the Department of Veterans Affairs (VA) that denied service connection for cancer of the bladder, including as due to herbicide exposure. The Board likewise denied the Veteran's claim for service connection for bladder cancer, including as due to herbicide exposure, in an April 2009. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court), and the Board's decision was vacated pursuant to a Joint Motion for Remand (JMR). The parties requested that the Court vacate the Board's April 2009 decision regarding the denial of service connection for bladder cancer and remand the matter so the Board could discuss apparent inconsistencies in a March 2009 opinion from a physician of the Veterans Health Administration (VHA). The Court granted the joint motion and remanded the case to the Board. FINDINGS OF FACT 1. The Veteran did not manifest bladder cancer during service. 2. The Veterans bladder cancer was not manifested continuously since discharge from service. 3. Bladder cancer was first manifested in 2003, many years after separation from service. 4. Bladder cancer is not related to exposure to the defoliant Agent Orange during service. CONCLUSION OF LAW Bladder cancer, including as due to exposure to herbicides, was not incurred in or aggravated by active duty service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of the claim. May 2004 and October 2007 letters explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. The October 2007 letter also informed the Veteran of disability rating and effective date criteria. The Veteran has had ample opportunity to respond and supplement the record. With regard to the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The RO did not arrange for a VA examination, but did refer the case to VHA physicians who evaluated the case and rendered opinions regarding the etiology of the Veteran's bladder cancer, including any relationship with the defoliant Agent Orange. Following the JMR, the Board referred the case to an Independent Medical Expert (IME). The IME reviewed the entire claims file, including all the epidemiologic studies referred to by both private and VHA physicians, and rendered an opinion regarding whether the Veteran's bladder cancer was etiologically related to the defoliant Agent Orange. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). The Veteran has not identified any evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claims. Service Connection for Bladder Cancer Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a) (2010). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder on a direct basis, generally, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether the requirements for service connection are met is based on an analysis of all of the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 3.303(a) (2010). See Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102. See Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). If the Board determines that the preponderance of the evidence is against the claim, then it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule will not be applicable. Ortiz, 274 F.3d at 1365. 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). The following diseases are deemed associated with herbicide exposure, under current VA law: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The foregoing 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; 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.A. §§ 501(a), 1116; 38 C.F.R. § 3.309 (e). The diseases listed at § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). 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 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 Notice, 59 Fed. Reg. 341-346 (1994). See also 61 Fed. Reg. 41,442-41,449, and 61 Fed. Reg. 57,586-57,589 (1996). Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection for disability due to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom, Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). 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 cancer. He contends that bladder cancer is a direct result of his exposure to dioxin (Agent Orange) 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 service treatment records note that the Veteran reported a history of frequent urination in the course of his pre-induction examination conducted in October 1968. The remainder of the service treatment records are negative for complaints or findings concerning genitourinary problems. The record shows that the Veteran served in the Republic of Vietnam from June 1969 to December 1969. As the evidence of record reflects that the Veteran served in the Republic of Vietnam, exposure to herbicides is presumed. A private hospital treatment record dated in October 2003 notes a history of bladder cancer. A cystoscopy was performed. It was noted that the site of the previous tumor was free of any obvious tumor. The postoperative diagnosis was likely suspicious area seen. A May 2004 letter from the Veteran's private physician indicated ongoing treatment of the Veteran for transitional cell carcinoma of the bladder. The physician opined that it was as least as likely as not that the Veteran's transitional cell carcinoma of the bladder was the result of his exposure to dioxin in Vietnam. No reasons for this opinion were given. In December 2007, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA) (to be rendered by a urological oncologist) in the matter of entitlement to service connection for bladder cancer, to include as due to exposure to Agent Orange. The reviewing VA specialist was asked to provide an opinion concerning whether it was at least as likely as not that the Veteran's cancer of the bladder tumors were related to service, to include exposure to Agent Orange therein. The above-requested medical opinion is of record, dated in January 2008. The opining urologist observed that a presumption of service connection was not warranted based on exposure to herbicides used in Vietnam for bladder cancer. The basis for this opinion was findings of 2004 and 2005 VA study, which was based on studies performed by the Institute of Medicine (IOM) and the National Academy of Science (NAS) that had been published in the Federal Register, a copy of which was attached. He added that the Veteran's exposure to known risk factors such as smoking or certain other chemicals were not included in the provided records. The urologist commented on the March 2004 letter from the Veteran's private physician, which provided an opinion that the Veteran's transitional cell carcinoma of the bladder "is at least as likely as not" the result of dioxin exposure. The VA staff urologist commented that as "there is no new evidence that I am aware of regarding the possibility of Agent Orange causing bladder cancer, I would conclude that the cause of this patient's bladder cancer is unknown." In response to the January 2008 VHA opinion, in June 2008 the Veteran submitted two private medical opinions. The first opinion, dated in February 2008, noted that the Veteran was under his care for transitional cell carcinoma of the bladder. The physician opined that "it is at least as likely as not that this condition is the result of his exposure to dioxin during his military service" in Vietnam. No reason for this opinion was offered. The second opinion is dated in April 2008. This physician noted that he also was treating the Veteran for bladder and prostate cancer. It was opined that "[i]t is at least as likely as not that [the Veteran's bladder cancer] is the result of exposure to dioxin during his military service" in Vietnam. The physician submitted two studies to substantiate this opinion. The first study, from the National Institute of Public Health, Bilthoven, Netherlands, Department of Chronic Diseases and the American Journal of Epidemiology, was noted to have been published in 1998, by the American Journal of Epidemiology. A second study, from the Mario Negri Institute for Pharmacological Research, in Milan, Italy, was noted to have been published in the International Journal of Epidemiology in 1990. In November 2008, a second advisory medical opinion from the VHA (to be rendered by a urological oncologist) in the matter of entitlement to service connection for bladder cancer, to include as due to exposure to Agent Orange was requested. The opinion request letter notified the reviewing physician of the above discussed two private medical opinions, which both found that it was as least as likely as not that the Veteran's bladder cancer resulted from his exposure to dioxin in Vietnam. The medical research studies cited by the Veteran's private physician were noted and it was requested that a discussion of those studies be included in the opinion. The letter also noted, as did the December 2007 VHA request letter, that the Secretary of VA had determined, based on a National Academy of Science report issued in March 2005, that there was 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 Notice, 72 Fed. Reg. 32395- 32407 (June 12, 2007). That report further identified an absence of a causal association between herbicide exposure and urinary bladder cancer. It was added, however, that, as noted above, the VA Secretary's decision not to establish presumptive service connection for urinary bladder cancer did not prohibit service connection for such a disorder on other bases. The reviewing VA specialist was asked to provide an opinion as to whether it was at least as likely as not that the Veteran's cancer of the bladder tumors was related to service, to include exposure to Agent Orange therein. The above-requested VHA medical opinion is of record, dated in March 2009. The opining VA oncologist indicated that it was "more unlikely" that the Veteran's bladder cancer had resulted from exposure to dioxin while in Vietnam. While noting that the Veteran was exposed to Agent Orange between June and September 1969, and acknowledging his review of the above cited private medical opinions as well as the two private studies supplied by the Veteran, the VA oncologist noted that there appeared to be insufficient epidemiologic data to suggest a cause and effect relationship between exposure in Vietnam and the development of bladder cancer. He added that while the two small case controlled studies cited (from Milan and the Netherlands) suggested that there may be a relative risk of the development of bladder cancer in workers exposed to herbicides/other chemicals over a prolonged period of time (defined in one study as at least more than one year), there appeared to be no large epidemiologic study or data to support this. In April 2011, the Board requested that the Veteran's claims file be reviewed by an Independent Medical Opinion (IME). The request noted all of the prior medical opinions and studies of record and asked that an opinion be rendered regarding whether it is at least as likely as not that the Veteran's cancer of the bladder is related to his exposure to the dioxin Agent Orange during service. In May 2011, the IME responded. After first reviewing the epidemiologic studies, medical opinions, and medical literature, the IME concluded that the preponderance of the evidence was against a relationship between the Veteran's bladder cancer and his exposure to dioxin in Vietnam. He noted that virtually all of the patients that he had seen in his forty years of practice as a radiation oncologist were smokers. The fact that bladder cancer had not figured in the IOM and NAS studies was also strong evidence that a relationship was simply not there. In summary, the IME accurately noted that the Veteran had a three month exposure to Agent Orange in service in 1969, had a 30 pack/years history of cigarette smoking after service, and 38 years after service the Veteran developed muscle-invasive bladder cancer requiring radical surgery. In the IME's opinion, there was less than a fifty percent likelihood that the tumor was caused by the Agent Orange. The IME opined as to the likely etiology, offering the opinion that there was a greater than fifty percent likelihood that it was caused by heavy cigarette smoking. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140, 146 (1993); Guerrieri, 4 Vet. App. at 470-71. While the Board may not ignore a medical opinion, it is certainly free to discount the relevance of a physician's statement. See Sanden v. Derwinski, 2 Vet. App. 97 (1992). The Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for bladder cancer. The Board acknowledges the opinions of the Veteran's private physicians, particularly the April 2008 opinion that included reasoning supported by the two European studies. The May 2004 opinion and the February 2008 opinion are given less weight by the Board, as there was no support for either opinion provided. The Board places greater weight on the January 2008 VHA opinion, which was supported by the IOM and NAS studies and the March 2009 VHA opinion that noted the two European studies but found them to be less convincing because they were found to be small case controlled studies rather than a large epidemiologic study. Most convincing is the May 2011 IME opinion that thoroughly reviewed all of the opinions and study results and found it more likely that the Veteran's history of cigarette smoking was the cause of the bladder cancer than his exposure to Agent Orange in Vietnam. The Board ascribes additional probative value to the fact of the IME examiner had forty years of experience as a radiation oncologist with personal experience regarding the relationship noted between cigarette smoking and the development of bladder cancer. For these reasons, the Board finds that the preponderance of the evidence is against the claim for service connection, including as due to herbicide exposure, and the claim must be denied. ORDER Service connection for cancer of the bladder, to include as due to herbicide (Agent Orange) exposure, is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs