Citation Nr: 1324711 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 04-40 575 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to service connection for bladder cancer, to include as due to exposure to herbicides. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected disability. 3. Entitlement to service connection for chronic renal insufficiency, to include as secondary to service-connected disability. REPRESENTATION Veteran represented by: Penelope E. Gronbeck, Attorney at law ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from May 1969 to March 1972. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions entered in March 2004 and March 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. A November 2007 Board decision, in pertinent part, denied the issues of entitlement to service connection for hypertension and chronic renal insufficiency, claimed as secondary to service-connected disability. The Veteran then appealed the case to the U.S. Court of Appeals for Veterans Claims (Court), and the parties to that appeal thereafter jointly moved the Court to vacate the Board's prior decision and remand all of the issues so additional Board review could be undertaken. By its order, dated in April 2009, the Court granted the parties' motion and the case was then returned to the Board. While the case remained pending at the Court, the RO by its rating decision of March 2008 denied the claim of entitlement to service connection for bladder cancer, to include as due to in-service exposure to herbicides. In July 2006 and December 2009, the Veteran testified at hearings before the undersigned Veterans Law Judge, via videoconference. Transcripts of these hearings are associated with the claims file. In June 2010 and December 2012, the Board remanded the appeal for further development, and it now returns to the Board for appellate review. The issues of entitlement to service connection for hypertension and chronic renal insufficiency are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Bladder cancer did not have its onset in service or within one year of the Veteran's discharge from service and is not shown to be causally or etiologically a result of military service. CONCLUSION OF LAW Bladder cancer was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 101(24), 1101, 1110, 1112, 1113, 1116, 1137, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.301, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Stegall Considerations The Board observes that this case was remanded by the Board in June 2010 and December 2012. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." See Stegall v. West, 11 Vet. App. 268, 271 (1998). The purpose of the June 2010 remand was to obtain a medical opinion as to the etiology of the Veteran's bladder cancer. This opinion was obtained in August 2010. The December 2012 remand was issued to obtain additional VA treatment records and to ensure the Veteran was afforded all necessary due process by providing him with a supplemental statement of the case (SSOC) that contemplated all evidence received since the previous RO/AMC adjudication of the claim. The post-remand record reveals that up-to-date VA treatment records were added to the claims file. Additionally, the required SSOC was issued in April 2013. Therefore, the Board determines that the RO/AMC substantially complied with the Board's orders in the June 2010 and December 2012 remands, and that the Board may now proceed with adjudication of the claim. II. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002)) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA must inform a claimant about the information and evidence not of record that is necessary to substantiate the claim, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23353-23356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. VCAA notice must be provided before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with a VCAA notification letter May 2007, prior to the initial unfavorable AOJ decision issued in March 2008. The Board observes that the pre-adjudicatory VCAA notice informed the Veteran of the type of evidence necessary to establish service connection, how VA would assist him in developing his claim, and his and VA's obligations in providing such evidence for consideration. This letter also provided him with information as to the substantiation of disability ratings and effective dates. Therefore, the Board finds that the Veteran was provided with all necessary notice under VCAA prior to the initial adjudication of his claim. Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claim, has been satisfied. See Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Veterans Law Judge and/or Decision Review Officer who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board hearings, the Veterans Law Judge explained the issues on appeal, and solicited testimony as to the identification of any potentially available outstanding evidence that would help substantiate the claim. The Veteran has not suggested any deficiency in the conduct of the hearings. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim and providing him with a VA examination. The Veteran's service treatment records, private treatment records, VA medical records, disability records from the Social Security Administration, and an August 2010 VA opinion were reviewed by both the AOJ and the Board in connection with adjudication of the claim. The Veteran has not identified any additional, relevant treatment records the Board needs to obtain for an equitable adjudication of the claim. With regard to the VA opinion, the Board notes that once 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). In this case, the examiner reviewed the claims file, noting relevant documents in service treatment records and post-service treatment evidence, documented the Veteran's subjective complaints and medical history, and considered the medical and scientific literature. Thereafter, the examiner provided an opinion supported by a rationale based on all of this information. There is nothing to suggest that the examiner's opinion is not sufficiently based on the facts of the case or that an arbitrary conclusion was reached. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159 (c)(4). In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claim without further development and additional efforts to assist or notify the Veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claim. III. Analysis 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)). In the case of a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, namely from February 28, 1961, to May 7, 1975, VA regulations provide that he 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 Board notes that the Veteran's service records reflect that he served in the Republic of Vietnam from September 1971 to March 1972. Accordingly, the Board finds that the Veteran is presumed to have been exposed to herbicides coincident with service in the Republic of Vietnam. The following diseases shall be service connected if the Veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, and provided further that the requirements of 38 C.F.R. § 3.307(d) are satisfied: chloracne or other acneform disease consistent with chloracne, type II diabetes mellitus, Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina, all B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, cute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, certain respiratory cancers, and soft tissue sarcoma. 38 C.F.R. § 3.309(e) (revised 75 Fed. Reg. 53202-53216, August 31, 2010). For purposes of this section, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. Id. The Secretary of VA 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 Notice, 61 Fed. Reg. 41,442-449 (1996). Further, the Secretary has found 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 any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 68 Fed. Reg. 27,630 (May 20, 2003). Section 2 of the Agent Orange Act of 1991, Pub. L. 102-4 (Act), codified in pertinent part at 38 U.S.C.A. §§ 1116(b) and (c), provides that whenever the Secretary determines, based on sound medical and scientific evidence, that a positive association (i.e., the credible evidence for the association is equal to or outweighs the credible evidence against the association) exists between exposure of humans to an herbicide agent and a disease, the Secretary will publish regulations establishing presumptive service connection for that disease. If the Secretary determines that a presumption of service connection is not warranted, he is to publish a notice of that determination, including an explanation of the scientific basis for that determination. The Secretary has published a list of specific conditions for which a presumption of service connection based on exposure to herbicides used in Vietnam during the Vietnam era is not warranted. See Notice, 64 Fed. Reg. 59232 -59243 (1999). Bladder cancer is among those disabilities listed. Nevertheless, presumptions of service connection are not intended to limit service connection to that basis of entitlement when the evidence warrants direct service connection. 38 C.F.R. § 3.303(d). Direct service connection may be granted for disease or disability diagnosed in service; or, if diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Id. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr, 21 Vet. App. at 309. Each disorder for which the Veteran seeks service connection must be considered on the basis of the places, as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence; a veteran's lay statements may be sufficient evidence in any claim for service connection. 38 C.F.R. § 3.303(a); see also 38 U.S.C. § 1154(a) (requiring VA to include in its service connection regulations that due consideration be given to "all pertinent medical and lay evidence"). A veteran's lay statements may be sufficient evidence in any claim for service connection. The Veteran contends that he developed bladder cancer as a result of exposure to herbicides during military service. Therefore, he argues that he is entitled to service connection for this disability. As discussed above, VA has specifically found that bladder cancer is not presumed to be a result of exposure to herbicides in service. Further, the evidence demonstrates that the Veteran's bladder cancer was diagnosed in August 2006, over 34 years after discharge. Thus, service connection may not be presumed on the basis of the disability being present to a compensable degree within one year of discharge. 38 C.F.R. § 3.309(d). Nevertheless, the Board must consider whether service connection is warranted on a direct basis. As indicated, the Veteran was diagnosed with bladder cancer in 2006, after experiencing symptoms of inflammation and hematuria. Private treatment records reveal that he was given BCG treatments for several months, with additional monitoring of the cancer's progression. The Veteran underwent a radical cystectomy in March 2008. The subsequent medical evidence does not reflect recurrence of the cancer. Nevertheless, the Court has held that service connection may be granted if a disability existed at the time a claim for VA disability compensation is filed or during the pendency of that claim, even though the disability resolved prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran filed his claim in October 2006, prior to his cystectomy. Therefore, the Board determines that the Veteran has a current disability with respect to this claim. However, the Veteran's service treatment records are negative for any complaint, treatment, or diagnosis of bladder cancer or that could be attributable to bladder cancer. Moreover, the record is devoid of competent evidence associating the Veteran's bladder cancer with his military service. In August 2010, a VA examiner opined that it is less likely as not that the Veteran's presumed exposure to Agent Orange contributed to his diagnosis of bladder cancer. The examiner indicated that while there are multiple anecdotal claims of a relationship between Agent Orange exposure and bladder cancer, there are no recognized scientific studies that have a established a nexus between the two. This is the only competent and probative opinion addressing the question of a nexus. At his December 2009 hearing, the Veteran testified that his kidney doctor had told him, but would not put in writing, that bladder cancer like his would be due to exposure to a toxic chemical. The Veteran is competent to speak to what a physician told him. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board acknowledges that a Veteran is competent to report what he has been told; however, the Board is also mindful that a layman's account of what a physician purportedly said, filtered through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute "medical" evidence. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995). Further, this opinion is inadequate as it offers no rationale for the statement. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (holding that an opinion that contains only data and conclusions is afforded no weight). In addition, the Veteran is competent to speak to his symptoms. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, he is not competent to make a diagnosis or a determination as to the etiology of his bladder cancer. Cancer is a complex disease requiring medical expertise and technical knowledge for proper diagnosis and treatment. As the Veteran has not been shown to have the requisite medical training to render such an opinion, the Veteran's assertions that his bladder cancer is a result of his exposure to herbicides in service are not competent evidence of the relationship. Accordingly, the Board finds that the criteria for service connection are not met in this case. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, as reflected by the above discussion, the preponderance of the evidence is against the Veteran's claim of entitlement service connection for bladder cancer. Therefore, his claim must be denied. ORDER Entitlement to service connection for bladder cancer is denied. REMAND Regrettably, the Board's review of the record since the previous remand in December 2012 reveals that another remand is necessary with regard to the claims of entitlement to service connection for hypertension and chronic renal insufficiency. In both the June 2010 and December 2012 remands, the Board, in part, directed the RO to obtain medical opinions from qualified professionals as to whether the disabilities at issue, hypertension and chronic renal insufficiency, were chronically aggravated by service-connected diabetes mellitus. VA clinical opinions were obtained in August 2010 and February 2012. The December 2012 remand found that the opinions offered relating to the question of aggravation of hypertension and/or chronic renal insufficiency by service-connected disability were inadequate. Specificlly, no opinion had been offered as to whether the service-connected coronary artery disease/ischemic heart disease, bilateral lower extremity peripheral artery disease and/or peripheral neuropathy of the bilateral lower extremities chronically aggravated the hypertension and/or chronic renal insufficiency. Additional VA opinions were received in December 2012. The examiner opined that it is less likely as not that the diabetes mellitus, coronary artery disease, ischemic heart disease, peripheral artery disease of the lower extremities, and peripheral neuropathy of the lower extremities caused, is related to, or chronically aggravates the hypertension beyond the natural progress of the disease. The rationale was that the Veteran has a long history of hypertension that predates the onset of the diabetes mellitus and that claims file review failed to provide evidence that diabetes mellitus caused or aggravated the hypertension beyond natural progression of the disease. The examiner stated that there was no documented medical evidence of a change or worsening of the hypertension related to the diagnoses of diabetes mellitus and that the hypertension was currently well-controlled on medication. With regard to the chronic renal insufficiency, the examiner opined that the disability is caused by a long history of hypertension. The rationale was that chronic hypertension can cause renal insufficiency and that review of the claims file failed to provide evidence that diabetes mellitus aggravated the renal insufficiency beyond its natural progression. These opinions are again inadequate. Barr, 21 Vet. App. at 311. First, the Board observes that the examiner's hypertension rationale once again focused on the fact that the disability pre-dated the diabetes mellitus. Additionally, the rationale did not address the opinion that the hypertension was not aggravated by the coronary artery disease, ischemic heart disease, peripheral artery disease of the lower extremities, and peripheral neuropathy of the lower extremities. Further, while the opinion clarified that the hypertension is now under good control, it did not discuss whether the difficulty in controlling the Veteran's hypertension across time was due to a service-connected disability. As for the chronic renal insufficiency opinion, this opinion also did not provide the requested clarification with regard to the severity of the disability. Additionally, the opinion did not address at all, the effects, if any, of the coronary artery disease, ischemic heart disease, peripheral artery disease of the lower extremities, and peripheral neuropathy of the lower extremities on the chronic renal insufficiency. Further, with respect to both opinions, the statement that the medical evidence did not provide evidence of a change, worsening, or aggravation of the hypertension or chronic renal insufficiency was not supported by either specific facts of the case that demonstrate that no aggravation had occurred or general medical principles that address what symptoms, if they existed, would show such aggravation. Moreover, given the examiner's opinion that the chronic renal insufficiency is due to the hypertension, the two claims are now intertwined. The United States Court of Appeals for Veterans Claims has held that all issues inextricably intertwined with an issue certified for appeal are to be identified and developed prior to appellate review. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, as the outcome of the chronic renal insufficiency claim is in part dependent on the outcome of the hypertension claim, both claims must be remanded. In light of the above, the Board again remands the claims of entitlement to service connection for hypertension and chronic renal insufficiency for an opinion that addresses the question of aggravation of the Veteran's claimed hypertension and renal insufficiency. Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's claims file to a different examiner than the August 2010/February 2012 and June 2012 VA examiners, for an opinion with respect to whether the Veteran's hypertension and/or chronic renal insufficiency have been aggravated beyond their natural progression by service-connected disability. The opinion must reflect that claims file review occurred. Upon review of the claims file the examiner should address the following a. Is it at least as likely as not that the Veteran's hypertension is proximately due to or chronically aggravated by any service-connected disability, to include coronary artery disease/ischemic heart disease, peripheral artery disease of the lower extremities, and peripheral neuropathy of the lower extremities, in addition to diabetes mellitus? b. Is it at least as likely as not that the Veteran's chronic renal insufficiency is proximately due to or chronically aggravated by any service-connected disability, to include coronary artery disease/ischemic heart disease, peripheral artery disease of the lower extremities, and peripheral neuropathy of the lower extremities, in addition to diabetes mellitus? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. The examiner is advised that aggravation for legal purposes is defined as a worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms. A complete rationale must be provided for the opinions offered. Specific changes in the severity of Veteran's hypertension and renal insufficiency throughout the appeal period, i.e., since the Veteran filed his claim in November 2003, which are attributable to any service-connected disability should be fully described. If worsening of the hypertension or worsening of the chronic renal insufficiency as a result of service-connected disability is not found, the examiner must provide an explanation for that finding that is based on specific factors from the Veteran's medical history and any applicable general medical principles. If it is determined that another opinion cannot be satisfactorily determined without another clinical examination of the Veteran, such examination should be scheduled. 2. After completing the above actions, and any other development deemed necessary, readjudicate the issues on appeal. If any benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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. 2012). ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs