Citation Nr: 1300214 Decision Date: 01/03/13 Archive Date: 01/11/13 DOCKET NO. 09-05 526 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE 1. Entitlement to service connection for bladder tumors, to include as due to herbicide exposure. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for an eye disorder (previously cataracts), to include as secondary to the service-connected diabetes mellitus. REPRESENTATION Appellant represented by: American Ex-Prisoners of War, Inc. WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to January 1969. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which in pertinent part, found that new and material evidence had not been received to reopen a claim for service connection for bladder tumors. The RO subsequently reopened the claim and denied service connection on the merits, as reflected in the Statement of the Case (SOC) issued in December 2008. The Veteran testified at a DRO hearing in June 2009; a transcript of the hearing is associated with the claims files. The Veteran cancelled his hearing before the Board that was scheduled in March 2011. He has not requested that the hearing be rescheduled, nor has he provided good cause. Regardless of the actions of the RO, the Board did not have jurisdiction to consider a claim which had been previously adjudicated unless it found that new and material evidence had been presented. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); 38 U.S.C.A. §§ 5108, 7104(b); see also Suttmann v. Brown, 5 Vet. App. 127, 135 (1993); Jackson v. Principi, 26 5 F.3d 1366 (Fed. Cir. 2001). Nevertheless, in a November 2011 decision, the Board found that new and material evidence had been presented and remanded the claim for service connection on the merits to the RO, via the Appeals Management Center (AMC) in Washington, D.C., for further evidentiary development. After completing the requested development, the RO continued to deny the claim (as reflected most recently in an August 2012 supplemental statement of the case (SSOC)) and returned this matter remaining on appeal to the Board for further consideration. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal herein decided. The issue of whether new and material evidence has been received to reopen a claim for entitlement to service connection for an eye disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC, in Washington, DC. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam era and is presumed to have been exposed during such service to certain herbicide agents, including Agent Orange. 2. The Veteran's bladder tumors or cancer of the bladder did not manifest in service or for many years thereafter and is not related to his military service, including herbicide exposure therein. CONCLUSION OF LAW Bladder tumors or cancer of the bladder was not incurred in service, may not be presumed to have been so incurred, and is not due to herbicide exposure in service. 38 U.S.C.A. §§ 1110, 1112, 1116, 1154 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2011). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in a May 2008 letter issued prior to the rating decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for service connection for bladder tumors, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter advised the Veteran of how disability evaluations and effective dates are assigned and the type of evidence which impacts those determinations. The September 2008 rating decision reflected the initial adjudication of the claim after issuance of this letter. Thus, the timing and content requirements have been met with regard to the duty to notify. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available VA and private medical records are in the claims file and were reviewed by both the RO and the Board in connection with his claim. The Veteran has not identified any other outstanding records that are pertinent to the issue currently on appeal. In addition, the Veteran was afforded a VA examination in June 2009 in connection with his claim for service connection for bladder tumors. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As discussed below, the Board finds that the examination and medical opinion obtained in this case are adequate, as they are predicated on a full reading of the service treatment records as well as the private and VA medical records contained in the Veteran's claims file. The examiner considered all of the pertinent evidence of record, including the contentions and statements of the appellant, and provided a complete rationale for the opinions stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). In summary, the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. He was an active participant in the claims process submitting evidence and argument and presenting for a VA examination. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Law and Analysis Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). If certain chronic diseases, including malignant tumors, are manifested to a compensable degree within one year following a veteran's discharge from active duty, they may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection also may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C.A. §§ 1116; 38 C.F.R. § 3.307. If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and acute and subacute peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.307, 3.309(e). The enumerated diseases are AL amyloidosis; chloracne or other acneform diseases; diabetes mellitus, type 2, Hodgkin's disease, all chronic B-cell leukemias, 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), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), Parkinson's disease, and ischemic heart disease. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e), 3.313, 3.318. VA has determined 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, 68 Fed. Reg. 27630 -27641 (2003). The Secretary has clarified that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for the following conditions: Hepatobiliary cancers, nasopharyngeal cancer, bone and joint cancer, breast cancer, cancers of the female reproductive system, urinary bladder cancer, renal cancer, testicular cancer, abnormal sperm parameters and infertility, amyotrophic lateral sclerosis (ALS), chronic persistent peripheral neuropathy, lipid and lipoprotein disorders, gastrointestinal and digestive disease, immune system disorders, circulatory disorders, respiratory disorders (other than certain respiratory cancers), skin cancer, cognitive and neuropsychiatric effects, gastrointestinal tract tumors, brain tumors, endometriosis, adverse effects on thyroid homeostasis, and any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32,395 -32,407 (Jun. 12, 2007); see also Notice, 74 Fed. Reg. 21,258 -21260 (May 7, 2009). Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). The Board is required to render a finding with respect to the competency and credibility of the lay evidence of record. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection. Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As a fact finder, the Board is obligated to determine whether lay evidence is credible in and of itself. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F. 3d 1331, 1336-1337 (Fed. Cir. 2006). Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that are, experienced, were directly through the senses. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno, 6 Vet. App. At 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F. 3d at 1377. A veteran is also competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the layman is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layman is competent to identify the medical condition; he is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The Board has reviewed all of 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. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, 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 (2011). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In this case, the Veteran contends that his bladder tumors or cancer of the bladder is related to his military service. Specifically, he has asserted that disorder is related to his herbicide exposure while he was serving in the Republic of Vietnam. Initially, the Board observes that the Veteran did serve in the Republic of Vietnam from November 1967 to January 1969. As such, he served in the Republic of Vietnam during the Vietnam era and is therefore presumed to have been exposed during such service to certain herbicide agents, including Agent Orange. Nevertheless, the Board finds that no injury, disease, or chronic symptoms of bladder tumors or cancer of the bladder was manifested during the Veteran's military service. In fact, his service treatment records do not document any treatment for or diagnosis of bladder tumors or cancer of the bladder. The Board also finds that the Veteran did not continuously manifest symptoms of bladder tumors or cancer of the bladder in the years after service. His post-service treatment records do not document any symptoms of bladder tumors or cancer of the bladder until August 2004 when the Veteran received treatment for blood in his urine. March 2006 VA cystoscopy results showed multiple small bladder tumors on the upper posterior wall, and a December 2008 private treatment record later confirmed the diagnosis of cancer of the bladder. The Veteran does not contend that his bladder tumors or cancer of the bladder began during the first post-service year, and the evidence does not show manifestations of bladder tumors or cancer of the bladder to a degree of 10 percent within one year of service separation. Therefore, the Board finds that, because bladder tumors or cancer of the bladder was not manifested to a degree of ten percent within one year of service separation, there is no basis for presumptive service connection. 38 C.F.R. §§ 3.307, 3.309. In addition, the Board finds that Veteran's bladder tumors or cancer of the bladder is not related to his herbicide exposure during service. Bladder tumors or cancer of the bladder is not on the list of diseases that VA has associated with Agent Orange exposure. The scientific studies reviewed as part of that regulatory process have associated many malignant tumors with herbicide exposure, but not bladder tumors or cancer of the bladder. Moreover, the VA physician in the June 2009 report of examination stated that there was no indication that the bladder cancer was due to Agent Orange exposure during his period of service. The physician explained that bladder cancer was not a presumptive cancer due to Agent Orange exposure. Further, the physician commented that scientific studies have been performed to specifically determine what medical problems have developed due to Agent Orange and noted that there was no indication that bladder cancer was due to Agent Orange exposure. The physician further indicated that he had been doing VA examinations, including Agent Orange examinations, for the past 17 years and had participated in multiple meetings and discussion groups concerning Agent Orange; bladder cancer had simply never been linked to Agent Orange exposure. The Board is aware that, in the December 2008 private treatment record confirming the diagnosis of cancer of the bladder, the physician stated that the Veteran's Agent Orange exposure and his cancer are a link together. Thus, there are conflicting medical opinions regarding whether the Veteran may have bladder tumors or cancer of the bladder directly related to his herbicide exposure in service. In general, the Board is responsible for assessing the credibility and weight to be given to the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). Such assessments extend to medical evidence. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion reached; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993). In this case, the physician who stated in the December 2008 private treatment record that the Veteran's Agent Orange exposure and his cancer are a link together failed to provide any rationale for his statement. In contrast, the June 2009 VA physician provided a clear and thorough rationale and relied on scientific studies in rendering his opinion. Further, the VA physician noted his qualifications and expertise in this field, namely a 17 year history of performing examinations (including Agent Orange examinations) and participation in multiple meetings and discussion groups concerning Agent Orange. Additionally, the Board notes that the VA physician's statement was based on a review of the claims file, including a review of the contrasting opinion offered by the physician in the December 2008 private treatment record. For these reasons, the Board finds the June 2009 VA medical opinion to be more probative. In summary, the record does not show bladder tumors, cancer of the bladder, or symptoms in service or within one year thereafter. Nor is there any evidence or allegation of continuity of symptomatology. In addition, the more probative evidence does not show that the Veteran's current disorder is related to his military service, including herbicide exposure. The Board also finds that, given the medical complexity surrounding cancer and any potential relationship to herbicide exposure, the Veteran is not competent to render an opinion regarding the etiology of the claimed disorder. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for bladder tumors, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for bladder tumors, to include as due to herbicide exposure is denied. REMAND The Board notes that, in a February 2011 rating decision, the RO, in pertinent part, denied reopening the Veteran's claim for service connection for an eye disorder (cataracts), to include as secondary to the service-connected diabetes mellitus. The Veteran was furnished notice of this rating decision in February 2011. Later that month, the Veteran submitted correspondence stating "I would like to appeal this. I have glaucoma now in the eye." To date, however, the RO has not issued a statement of the case (SOC) regarding this particular issue in response to what can be construed as the Veteran's notice of disagreement (NOD). The filing of an NOD places a claim in appellate status. Therefore, the failure to issue an SOC in such a circumstance renders a claim procedurally defective and necessitates a remand. See 38 C.F.R. §§ 19.9, 20.200, 20.201; see also Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398 (1995); Archbold v. Brown, 9 Vet. App. 124 (1996). The purpose of the remand is to give the RO an opportunity to cure this defect. Thereafter, the RO should return the claims file to the Board only if the Veteran perfects his appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); see also In re Fee Agreement of Cox, 10 Vet. App. 361, 374 (1997) (holding that if the claims file does not contain a notice of disagreement, a statement of the case and a VA Form 9 [substantive appeal], the Board is not required, and in fact, has no authority, to decide the claim). Accordingly, the case is REMANDED for the following action: The RO should issue a statement of the case addressing the issue of whether new and material evidence has been submitted to reopen a claim for service connection for an eye disorder. The statement of the case should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations. Thereafter, the Veteran should be given an opportunity to perfect an appeal by submitting a timely substantive appeal in response thereto. The RO should advise the Veteran that the claims file will not be returned to the Board for appellate consideration of this issue following the issuance of the statement of the case unless he perfects his appeal. The Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND 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. 2011). ______________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs