Citation Nr: 1335548	
Decision Date: 11/04/13    Archive Date: 11/13/13

DOCKET NO. 08-10 581	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for bladder cancer, to include as due to exposure to herbicides or as secondary to a left orchiectomy.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

S. Finn, Counsel

INTRODUCTION

The Veteran served on active duty from January 1968 to June 1988. His awards and decorations include the Combat Infantryman Badge (CIB).

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2006 rating decision of the Waco, Texas Regional Office (RO).

In April 2011, the Veteran was afforded a hearing before the undersigned Veterans Law Judge in Waco, Texas. A transcript of that hearing has been associated with the claims file.

A review of the Veteran's electronic ("Virtual VA") paperless claims file reflects additional treatment records. Virtual VA is a highly secured electronic repository used to store and review every document involved in the claims process.


FINDINGS OF FACT

1. The Veteran has been diagnosed with bladder cancer.

2. He is competent to report the circumstances of his service and his observable symptoms.

3. The report of the May 2013 independent specialist opinion is highly probative evidence that the Veteran does not have bladder cancer as the result of his active duty service, to include herbicide exposure and left orchiectomy.

4. The preponderance of the evidence reflects that the Veteran does not have bladder cancer due to any incident of his active duty service, to include herbicide exposure and left orchiectomy.




CONCLUSION OF LAW

The criteria for entitlement to service connection for bladder cancer are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 1154(b) (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board will discuss the relevant law which it is required to apply. This includes statutes published in Title 38, United States Code ("38 U.S.C.A."); regulations published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts).




Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran of any information and 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. See 38 C.F.R. § 3.159(b)(1).

July 2006 and November 2011 letters explained the evidence necessary to substantiate a claim for service connection. The letters also notified him how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-491 (2006).

This duty includes assisting the Veteran in the procurement of service treatment records (STRs), pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains STRs, VA examination reports, a specialist medical opinion, private treatment records, hearing transcript, and VA outpatient treatment records. 

The Veteran was afforded a VA compensation examination and an independent specialist's opinion and personal hearing before the undersigned VLJ. The May 2013 specialist's opinion was thorough and adequate for the purposes of deciding the claim. The report reflects that the specialist reviewed his medical history and rendered an appropriate opinion consistent with the other relevant evidence of record in terms of etiology.  See Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012), the Court held that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion." Citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners); see also D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). 

Neither the Veteran nor his representative has raised questions about the adequacy of the specialist's opinion. Unless the claimant challenges the adequacy of an examination or opinion, the Board may assume that the examination report and opinion are adequate and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). But even when this is challenged, the Board may assume the competency of any VA medical examiner as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007).

The Veteran has not identified, and the record does not otherwise suggest, any additional existing evidence that is necessary for a fair adjudication of this claim. A remand for additional records is unnecessary as the Veteran is lacking the nexus element of his claim. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands that would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). It is difficult to discern what additional guidance VA could provide him regarding what further evidence he should submit to substantiate his claim. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."). See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran). This is especially true given the claim was already remanded.

No further notice or assistance to him is required. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). He has received all essential notice, has had a meaningful opportunity to participate in the development of this claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). VA's duties to notify and assist the Veteran have been fulfilled.

Further, the RO/AMC substantially complied with the prior October 2011 remand directive by obtaining a VA examination and treatment records. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or VLJ who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issue(s) and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010).

During the Board hearing, the undersigned Veterans Law Judge identified the issue of entitlement to service connection for bladder cancer. Information was obtained to clarify the Veteran's arguments. The hearing officer's two-fold duty to inform the Veteran of any outstanding issues relevant and material to the claim, and to suggest the submission of evidence when such evidence is missing or has been overlooked, has been satisfied. See id. at 496-97.

The Veteran has not alleged that there were any deficiencies in the Board hearing under section 3.103(c)(2). See Bryant, 23 Vet. App. at 497-98. The Board has not identified any hearing deficiency. In Bryant, 23 Vet. App. at 498-99, the Court held that although the hearing officer did not explicitly explain the material issues of medical nexus and current disability, the purpose of 38 C.F.R. § 3.103(c)(2) had been fulfilled because the record reflected that these issues were developed by VA, and there was no indication that the Veteran had any additional information to submit. In this case, given the extensive development of the Veteran's claim discussed above, the Board finds no deficiency in the Board hearing or in development of the claim. See id.

The applicable duties to notify and assist have been satisfied. There is sufficient evidence on file in order to decide this appeal and the Veteran has been given ample opportunity to present evidence and argument in support of his claim. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); see also Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of the issue has been obtained and the case is ready for appellate review. See 38 C.F.R. § 3.103 (2013).

Merits of the Claim

The Veteran contends that he has bladder cancer either as the result of in-service exposure to herbicides or as a side effect of an in-service orchiectomy. The preponderance of the evidence is against the claim and the appeal will be denied. 

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). 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 active service. 38 C.F.R. § 3.303(d) (2013).

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).

In order to establish a showing of chronic disease in service, or within a presumptive period per § 3.307, a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic," is required. 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. Id. Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third service connection requirements to link a current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999).

A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 

Bladder cancer is not a disability upon which the Veteran can establish service connection on a presumptive basis. Nevertheless, service connection is not precluded for bladder cancer if there is evidence of direct causation between the disability and herbicide exposure. 

In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77.

In the case of any Veteran who engaged in combat with the enemy in active service, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service incurrence if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation, and, to that end, every reasonable doubt shall be resolved in favor of the Veteran. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). However, these provisions deal with the question of whether a particular disease or injury occurred in service; that is, what happened then, and not the question of either current disability or nexus to service, as to both of which competent medical evidence is generally required. In other words, the above-cited provisions do not presumptively establish service connection for a combat Veteran; rather, they relax the evidentiary requirements for determining what happened in service. See Brock v. Brown, 10 Vet. App. 155, 162 (1997); Libertine v. Brown, 9 Vet. App. 521, 524 (1996).

The Board must assess the credibility and weight of evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996).

The Veteran's STRs show that he underwent a vasectomy in April 1984 and left orchiectomy in October 1987. Following the left orchiectomy, he experienced complications, which were noted in November 1987 and February 1988 treatment records. His March 1988 retirement examination report indicated he was status post left orchiectomy in 1987 due to chronic epididymitis and post vasectomy syndrome. In April 1988, he had complaints of right flank pain and he was evaluated to rule out kidney stones. Due to an abnormal IVP that showed delayed right kidney function with dilated calices, urethral obstruction was suspected. His symptoms eventually resolved and a follow-up IVP was normal. No stones were ever seen by the Veteran.

The initial diagnosis of a bladder tumor was made by a private physician. The Veteran sought a second opinion on management from a VA physician in October 2005. The tumor, which was found to be cancerous, was removed in November 2005. 

A May 2011 letter from Dr. R. S, the physician who first detected the tumor, stated that the Veteran's medical history was reviewed. He also commented that the possibility that exposure to Agent Orange or other chemical exposures could not be 100 percent ruled out as the cause of the bladder cancer. While this opinion was not of certainty as to cause, it raised the possibility that the disorder could be related to service, it triggered VA's obligation to develop the claim with a clarifying medical opinion. Bloom v. West, 12 Vet. App. 185, 187 (1999) (a medical statement using the term "could," or in the moving party's case, "may" or "possibly," without supporting clinical data or other rationale, is too speculative in order to provide the degree of certainty required for medical nexus evidence.

Regarding the left orchiectomy, the January 2013 oncologist opined that it was less likely than not that there is an etiology or nexus of the Veteran's bladder cancer to his left orchiectomy. In offering an explanation, he stated:
	
"the left sided orchiectomy was secondary to postoperative complications from his elective vasectomy. At the time, there was no pathological or medical condition to warrant this procedure other than a means of birth control. Immediately following the procedure, there were post-operative complications, to include pain, swelling, possible localized infection and inflammation and the need for a left-sided orchiectomy."

The opinion is also not highly probative because it essentially reports facts relative to the Veteran's medical history and offers no real reasoning to support his opinion. Furthermore, the rationale is more of an explanation as to what led to the left orchiectomy rather than why it was unrelated to the Veteran's bladder cancer.

In a May 2013 independent specialist opinion, written by a specialist in hematology and oncology, the specialist concluded that orchiectomy or herbicidal exposure did not cause this Veteran's bladder cancer, but that the disorder was caused by the Veteran's tobacco use. He explained that the Veteran underwent a vasectomy in April 1984 with post-operative complications leading to a left sided orchiectomy and testicular implant. Anesthestics and medications required for this procedure did not cause this Veteran's bladder cancer. The specialist noted that before androgen deprivation therapy (ADT) was available over the last 15 to 20 years, to treat prostate cancer, essentially causing "chemical orchiectomy" from ADT, the standard of care was bilateral surgical orchiectomy, to deprive cancer from getting testosterone, which provides growth to the cancer. The specialist noted that hundreds of thousands of individuals have undergone this procedure, and there has been no evidence in literature to support a connection between orchiectomy, drugs used during this procedure and subsequent bladder cancer. He stated that "connections between these two [were] just as good as hitting a golf ball on this planet and landing it on the moon, with subsequent 'hole in one.'"

He stated that some of the known causative risk factors for bladder cancer include tobacco use (chewing or smoking), occupational exposure, especially in dye manufacturing, rubber, and aluminum industries. The examiner noted other possible causes, none of which were present in the Veteran's case and noted that that herbicides/agent orange were not known causative factors of the Veteran's disorder. He reported that based on medical evidence and clinical experience, the Veteran's bladder cancer was caused by his tobacco use - put affirmatively by the examiner as "number one, number two, and number three causes of bladder cancer in this Veteran" He further stated that "oncologists rarely see patients with bladder cancer who do not have a history of tobacco use, or one of the causative factors mentioned above. It's very unusual to see a Veteran from Vietnam with presumed exposure to agent orange/herbicide, who does not use tobacco but has bladder cancer."

The preponderance of the evidence is against the claim. Prior to the May 2013 specialist's opinion, earlier opinions were either speculative or non-responsive to the inquiry. The May 2013 examiner reviewed the claims file and determined that the cancer was not in any way connected to the Veteran's military service. The Veteran has not offered any medical opinions more probative than the specialist's opinion linking his bladder cancer to service.

The Veteran is competent to report observable symptoms, such as pain. However, the question of whether his bladder cancer is related to service is a complex medical question, not capable of lay observation. See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308 -09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins). Because the record is negative for any evidence to suggest that the Veteran has the appropriate training, experience, or expertise to provide a medical opinion concerning cancer, he is not competent to report the etiology of his disability. The competent medical evidence outweighs the Veteran's lay reports as to etiology.

In conclusion, the preponderance of the evidence is against a finding that the Veteran's bladder cancer is related to service. The appeal is therefore denied.


ORDER

Service connection for bladder cancer, to include as due to exposure to herbicides or as secondary to a left orchiectomy is denied.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs