Citation Nr: 1325369 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 09-50 677 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Coyle, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from September 1962 to January 1987. He died on September [redacted], 2008. The appellant is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2013, the Board remanded the matter to the agency of original jurisdiction for further development. FINDINGS OF FACT 1. Bladder cancer is listed as the immediate cause of death on the Veteran's death certificate. 2. Although exposure to herbicides during service is conceded, bladder cancer is not among the diseases that are presumptively linked to herbicide exposure. 3. Bladder cancer was incurred as a result of service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Service Connection for the Cause of the Veteran's Death The death of a veteran will be considered service connected when the evidence establishes that a service connected disability was either the principal or a contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially, that it combined to cause death, or that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). The Veteran's death certificate reflects that he died in September 2008. The immediate cause of his death was bladder cancer. The appellant contends that the Veteran developed bladder cancer as a result of exposure to herbicides during his active service. The Veteran served as a member of a security police squadron at Takhli Royal Thai Air Force Base (RTAFB) from February 1966 to June 1966, and at Udorn RTAFB from June 1966 to May 1968. Exposure to herbicides is conceded based on the time, place and circumstances of his service. VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(q). Presumptive service connection based on herbicide exposure may only be granted for a specific list of diseases. 38 C.F.R. § 3.309(e). Bladder cancer is not among them. Id. A presumption also exists for certain chronic diseases, including malignant tumors, that become manifest to a compensable degree within one year following active service. 38 C.F.R. §§ 3.307, 3.309. However, the tumor in the Veteran's bladder was not identified for almost 20 years after his discharge from active service. Accordingly, bladder cancer cannot be presumptively linked to service. However, service connection may still be established with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Three private medical opinions linking the Veteran's bladder cancer to exposure to herbicides have been submitted. All three opinions were provided by physicians who treated the Veteran for bladder cancer, and who are specialists in urology or oncology. An October 2010 statement from Dr. H.P. noted that bladder cancer "has, in some studies, been linked to [herbicide] exposure," but did not speculate as to the medical probabilities that herbicide exposure caused the Veteran's bladder cancer. An October 2010 statement from Dr. T.B. states that herbicides "are a known carcinogen and it is likely as not [that herbicide exposure] contribute[d] to [the Veteran's] development of cancer." A March 2011 statement from Dr. M.F. noted that, if the Veteran "had exposure to [herbicides], that may have been one of the causative factors" in his development of bladder cancer. A May 2013 opinion was received from a physician at the Montgomery, Alabama VA Medical Center (VAMC). The examiner is not a specialist in urology, although the Board directed that an opinion be sought from a specialist in this field in its April 2013 remand. According to the Montgomery VAMC's staff directory, he is board certified in internal medicine and geriatric medicine. His opinion states that the claim folder was reviewed. The biopsy report diagnosing stage IV bladder cancer, and the death certificate reflecting bladder cancer as the immediate cause of death, were specifically noted and discussed. The three private medical opinions were listed, but were not further discussed. The examiner did not reconcile his findings with those opinions, as directed by the Board in its recent remand. The examiner indicated that it was not at least as likely as not that the Veteran's bladder cancer was related to his service. His rationale states that other risk factors for bladder cancer included "cigarette smoking, dietary factors, chronic bladder infections and various occupational chemicals." The examiner also referenced an Institute of Medicine study, conducted in 2012, finding that there was "inadequate or insufficient evidence to determine whether there is an association between exposure to [herbicides] and bladder cancer." The opinion was not issued by specialist in urology, as directed. The examiner did not reconcile his findings with the three positive etiology opinions, as directed. Although a history of smoking is noted in the treatment records, the examiner did not offer any rationale for his conclusion that smoking is a risk factor for development of this particular malignancy. There is no indication in the record that dietary factors played a role of any kind in the development of the Veteran's bladder cancer, and the examiner did not identify any dietary factors that may have contributed to its development. Nor is there any indication in the record that the Veteran had any chronic bladder infections. He did have a history of chronic prostatitis and kidneystones; however, neither of these disorders can be characterized in any way as a chronic bladder infection. The examiner did not provide any support for his statement that chronic bladder infections can lead to the development of bladder cancer. The examiner indicated that the Veteran had occupational exposure to chemicals, a known risk factor for the development of bladder cancer. He does not, however, identify the chemicals to which the Veteran was allegedly exposed, and there is no indication in the record of any such exposure. After his discharge from service, the Veteran was employed at a facility manufacturing trailers and in the food service industry. Although a June 2008 clinical note states that the Veteran was a "refueler" during his active service, there is no indication in the personnel records that the Veteran was a refueler. In fact, the only documented exposure to environmental toxins is the conceded exposure to herbicides during active service in Thailand. The Institute of Medicine study referenced by the VA examiner is not conclusive evidence that bladder cancer is unrelated to exposure to herbicides. The study does NOT say that there is no association between herbicide exposure and bladder cancer; rather, it states that "there is insufficient evidence to determine" whether there is an association between herbicide exposure and bladder cancer. The three private physicians who submitted evidence in support of the appellant's claim did not have the benefit of reviewing the claim folder; however, there is no evidence in the claim folder that is inconsistent with their opinions. Each opinion is based upon their professional judgment as specialists in a field of medicine, urology and oncology, relevant to the particular facts of this case, as well as personal treatment of the Veteran. In contrast, the VA opinion was issued by a physician who is not a specialist in a field of medicine relevant to the particular facts of this case. Nor did he personally treat the Veteran. Significantly, although he had the opportunity to review the claim folder, his conclusions are not supported by an adequate rationale, nor are the facts put forth as the basis for his conclusions consistent with the evidence of record. Accordingly, the Board assigns significant probative value to the opinions of the private physicians and little probative value to the opinion of the VA examiner. Resolving all reasonable doubt in the appellant's favor, as the law requires, bladder cancer caused or contributed to the Veteran's death and service connection for the cause of his death is warranted. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs