Citation Nr: 1416537 Decision Date: 04/14/14 Archive Date: 04/24/14 DOCKET NO. 07-02 564 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a bladder disorder, to include a bladder tumor, to include as secondary to the service-connected disability of residuals of a shell fragment wound to the abdomen, to include post-operative scars, a laceration of the left kidney, and injuries to the pancreas and colon, and recurrent urinary tract infections, and exposure to herbicides. 2. Entitlement to service connection for a colon disorder, to include sigmoid diverticulosis, internal hemorrhoids, and history of polyps, to include as secondary to the service-connected disability of residuals of a shell fragment wound to the abdomen, to include post-operative scars, a laceration of the left kidney, and injuries to the pancreas and colon. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to March 1970. This matter comes to the Board of Veterans' Appeals (Board) from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In December 2009, November 2011, and March 2013, the Board remanded the claims for further development. In March 2013, the Board granted entitlement to service connection for recurrent urinary tract infections. In a June 2013 VA medical opinion, a VA doctor noted that a factor for bladder tumors include chronic viral or bacterial infections. In Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000), the United States Court of Appeals for the Federal Circuit held that VA's duty to assist attaches to the investigation of all possible causes of a current disability, including those unknown to the claimant. Therefore, the Board must consider an additional theory of entitlement for the bladder disorder - secondary to the now-service-connected recurrent urinary tract infections. Moreover, at the March 2006 VA general medical examination the Veteran expressed his concern that his urinary symptomatology may be related to exposure to Agent Orange, thereby raising the theory of entitlement to service connection based on herbicide exposure. In light of the above, the issues are as stated on the title page. In October 2013 the Board requested a Veterans Health Administration (VHA) expert medical opinion addressing any relationship between the bladder disorder and the recurrent urinary tract infections. The VHA expert provided an opinion in November 2013, and in January 2014 the Veteran and his representative were given a copy of that opinion and 60 days to respond. In March 2014, the representative provided written argument in response to the medical opinion. The issue of entitlement to service connection for varicose veins of the left lower extremity as secondary to the service-connected disabilities of shell fragment wounds to the left buttock, left upper thigh, and the middle third of the left leg has been raised by the medical evidence of record and the Veteran has explicitly raised the issue of entitlement to service connection for skin cancer, but these issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The weight of the evidence is against findings that the bladder tumor was compensably disabling within a year of separation from active duty; that there is a nexus between a current diagnosis of a bladder disorder and service, to include exposure to herbicides; or that the bladder disorder was caused or aggravated by a service-connected disability. 2. The weight of the evidence is against findings that that there is a nexus between a current diagnosis of a colon disorder and service or that a colon disorder was caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. A bladder disorder was not incurred in or aggravated by service and was not caused or aggravated by a service-connected disability, and bladder cancer may not be presumed to have been so incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2013). 2. A colon disorder was not incurred in or aggravated by service and was not caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The requirements of the 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in February, March, and June 2006, January 2010 (which was pursuant to the December 2009 Board remand), January 2011, and January 2014 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. In the March 2006 letter, VA notified the appellant of how VA determines the disability rating and effective date. The claims were most recently readjudicated in a June 2013 supplemental statement of the case. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording a VA examination. The RO obtained the service treatment records and some VA treatment records and afforded the appellant a VA examination. Pursuant to the December 2009 remand, the Appeals Management Center (AMC) obtained additional VA treatment records. Pursuant to the November 2011 remand, the AMC afforded the Veteran a VA examination with medical opinions in December 2011. Pursuant to the March 2013 Board remand, the AMC obtained an addendum in June 2013 to the December 2011 VA examination that contains additional medical opinions. In November 2013, the Board obtained a VHA expert opinion. With respect to the claims denied herein, the Board finds that the opinions are adequate to satisfy VA's duty to assist in that they were based on a thorough review of the record, consideration of the Veteran's contentions, and are supported by rationale. The Board recognizes that no opinion was requested as to the possibility of a relationship between the bladder tumor and exposure to herbicides. Therefore, the Board has considered whether or not further clarification through subsequent VA examination or another opinion is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that, once VA has provided a claimant with an examination, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided.) In McClendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (the Court) held that in disability compensation claims, the Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Id. at 81. However, in this instance, there is no competent medical opinion of record asserting a link between the bladder tumor and exposure to herbicides and thus no indication that the bladder tumor may be associated with exposure to herbicides. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the relationship between his bladder tumor and exposure to herbicides falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1733 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Thus, the Board finds that the criteria for obtaining a medical opinion or examination on the issue of direct service connection secondary to in-service herbicide exposure are not met, and that a remand for another examination or opinion or obtaining another VHA expert opinion is not necessary. See Robinson v. Mansfield, 21 Vet. App. 545 (2008) (holding that the Board is not obligated to investigate all possible theories of entitlement, but rather, only as to those theories for which the evidence is sufficient to reach the low threshold necessary to trigger the duty to assist as contemplated by McLendon.) In light of the above, the AMC complied with the directives of the Board remands. Stegall v. West, 11 Vet. App. 268 (1998). Governing law and regulations Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be warranted for any disease 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). Certain chronic disabilities, such as carcinomas, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection for a claimed disorder, there must be (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) 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). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam War shall be presumed to have been exposed during such service to herbicide agents, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to herbicide agents shall be the last date on which he served in Vietnam during the Vietnam era. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 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 C.F.R. § 3.307(d) are also satisfied. The list of diseases does not include bladder neoplasms, such as bladder cancer. 38 C.F.R. § 3.309(e). Even if the statutory presumptions are inapplicable, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Veterans Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a claimant from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F..3d 1039 (Fed. Cir. 1994). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability that is aggravated by a service connected disability. In such an instance, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Analysis Bladder disorder, to include a bladder tumor The Veteran argues that his bladder disorder is related to in-service shell fragment wound to the abdomen because he has had recurrent urinary tract infections since service. Direct service connection The medical evidence shows a diagnosis of papillary urothelial neoplasm of the low malignant potential. Therefore, Hickson element (1), current disability, is established. The Veteran's service treatment records show that he suffered shell fragment wounds in service resulting in a contused left kidney. During the hospitalization in October 1969, a Foley catheter drainage bag was used to drain urine. There was no laceration or other injury to the bladder. The February 1970 medical board examination did not reveal a diagnosis of a bladder injury or disease. The March 1970 physical examination board report shows that the genitourinary system was normal. Thus, Hickson element (2) as to injury is arguably established. A bladder disorder was not diagnosed during active service. The papillary urothelial neoplasm of the low malignant potential was not diagnosed within a year of separation from active service. The December 2011 VA examination report reflects that the bladder tumor was diagnosed in February 2008. Thus, Hickson element (2) as to disease is not established. As to Hickson element (3), medical nexus evidence, in the June 2013 VA medical opinion the December 2011 VA examiner opined that it was not at least as likely as not (less than 50 percent probability) that the bladder tumor diagnosed as papillary urothelial neoplasm of low malignant potential was related to service, to include any injuries sustained therein or any symptoms experienced therein. The examiner noted that all available service treatment records in VBMS have been reviewed and that there was no evidence that symptoms related to the bladder disorder were documented during military service. The examiner noted that trauma and surgery of the abdominal cavity were not risk factors for this type of tumor. The examiner added that while the Veteran sustained significant wounds during combat in service, there is no evidence his battle wounds and residuals have anatomic or pathophysiologic relationship to his bladder tumor. While the Veteran was treated with a Foley catheter in service and although the November 2013 VHA medical expert noted that chronic cystitis in the presence of indwelling Foley catheters is associated with a slight increased risk of squamous cell carcinoma of the bladder, the VHA medical expert noted that the Veteran did not have squamous cell carcinoma. The VHA medical expert added that it has not been established that cystitis causes bladder cancer and that this may simply be a case of guilt by association whereby you have two unrelated problems in the same organ. As to exposure to herbicides, there is no competent medical evidence relating the bladder tumor to exposure to herbicides. The Veteran has claimed continuity of urinary symptomatology, to include urinary frequency, since active service. The Board finds that the appellant to report this symptomatology and finds him credible. The Board notes that the claimant is service-connected for recurrent urinary tract infections. In any event, supporting medical evidence is required. See Voerth v. West, 13 Vet. App. 117, 120-21 (1999) (there must be medical evidence on file demonstrating a relationship between the veteran's current disability and the claimed continuous symptomatology, unless such a relationship is one as to which a lay person's observation is competent). In this case, the Board gives the great weight to the December 2011 VA examiner's opinion who in essence rejected this reporting of continuity of urinary symptomatology as being a manifestation of the bladder tumor by opining that the bladder tumor was not related to service. The December 2011 VA examiner noted that there was no evidence that symptoms related to the bladder disorder were documented during military service. The Veteran has related his bladder disorder to active service. Although lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet. App. at 435, as to the specific issue in this case, the relationship between his bladder neoplasm and his military service, to include his exposure to herbicides, falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1733 n. 4. In short, Hickson element (3), medical nexus, is not established. In summary, for the reasons and bases set forth above, the Board concludes that the weight of the evidence is against a finding that a bladder tumor was compensably disabling within a year of separation from active duty or that there is a nexus between a current diagnosis of a bladder neoplasm and service, to include exposure to herbicides. Therefore, the preponderance of the evidence is against the claim as to direct service connection for a bladder disorder, to include a bladder tumor, and it is denied. Secondary service connection The current bladder disorder is papillary urothelial neoplasm of the low malignant potential. Therefore, Wallin element (1), current disability, is established. Service connection is in effect for residuals of a shell fragment wound to the abdomen, to include post-operative scars, a laceration of the left kidney, and injuries to the pancreas and colon, and recurrent urinary tract infections. Thus, Wallin element (2), service-connected disability, is shown. As Wallin element (3), medical nexus evidence, in the June 2013 VA medical opinion the December 2011 VA examiner stated that it was not at least as likely as not (less than 50 percent probability) that the bladder tumor diagnosed as papillary urothelial neoplasm of low malignant had been caused or aggravated (that is, permanently worsened) by the service-connected residuals of his shrapnel wounds to the abdomen beyond natural progression. The examiner noted that trauma and surgery of the abdominal cavity were not risk factors for this type of tumor. In the November 2013 letter, the VHA medical expert noted that totally agreed with the opinion of the December 2011 VA examiner regarding any relationship between the bladder tumor and residuals of shrapnel wounds to the abdomen. The VHA medical expert noted that the VA examiner indicated that one factor related to papillary urothelial neoplasm of the low malignant potential can be chronic viral or bacterial infections. The VHA medical expert, however, opined that the bladder tumor diagnosed as papillary urothelial neoplasm of the low malignant potential had not been caused or aggravated by the service-connected recurrent urinary tract infections. While the VHA medical expert noted that chronic cystitis in the presence of indwelling Foley catheters is associated with a slight increased risk of squamous cell carcinoma of the bladder, that doctor noted that the Veteran did not have squamous cell carcinoma. The VHA medical expert added that it has not been established that cystitis causes bladder cancer and that this may simply be a case of guilt by association whereby you have two unrelated problems in the same organ. The VHA expert noted that while schistosoma haematobium cystitis (a parasitic infection) is a risk factor for the development of bladder cancer, this risk factor only applied to squamous cell carcinoma. The VHA expert noted that the role of viral agents in the etiology of transitional cell cancer had been investigated but never established. The Veteran has related his bladder disorder to the residuals of a shell fragment wound and recurrent urinary tract infections. Although lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet. App. at 435, as to the specific issue in this case, the relationship between his bladder disorder to the residuals of a shell fragment wound to the abdomen and recurrent urinary tract infections falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1733 n. 4 (lay persons not competent to diagnose cancer). In short, Wallin element (3), medical nexus, is not established. In summary, for the reasons and bases set forth above, the Board concludes that the weight of the evidence is against a finding that the bladder disorder was caused or aggravated by the service-connected residuals of a shell fragment wound and recurrent urinary tract infections. Therefore, the preponderance of the evidence is against the claim as to secondary service connection for a bladder disorder, and it is denied. A colon disorder, to include sigmoid diverticulosis, internal hemorrhoids, and history of polyps The Veteran argues that his colon disorder is related to the in-service shell fragment wound to the abdomen. The medical evidence shows diagnoses of sigmoid diverticulosis, internal hemorrhoids, and history of polyps. Therefore, Hickson and Wallin element (1), current disability, is established. The Veteran's service treatment records show that he suffered shell fragment wounds in service resulting in a laceration of the colon. The colon was repaired. The February 1970 medical board examination report showed a diagnosis of a left muscle group injury involving the left kidney, pancreas, liver, and colon. The March 1970 physical examination board report shows that the anus and rectum were normal. Thus, Hickson element (2) as to injury is established. However, sigmoid diverticulosis, internal hemorrhoids, and colon polyps were not noted during service. Service connection is in effect for residuals of a shell fragment wound to the abdomen, to include post-operative scars, a laceration of the left kidney, and injuries to the pancreas and colon. Thus, Wallin element (2), service-connected disability, is shown. As to Hickson and Wallin element (3), medical nexus evidence, the March 2006 general medical examiner stated that it is speculation whether the shrapnel injury had any effect on the Veteran's regulatory function of his bowel movements. The December 2011 VA examiner opined that it was not at least as likely as not (i.e., less than 50 percent probability) that the Veteran incurred sigmoid diverticulosis related to service to include any injuries sustained therein or any symptoms experienced therein. The examiner indicated that sigmoid diverticulosis is age dependent - being found in five percent of 40 year olds, 30 percent of 60 year olds and 65 percent of 85 year olds. The examiner noted that the type of injury to the colon the Veteran received in 1969 as reported in the operative note would not lead to multiple diverticuli in other locations of the colon. The examiner added there was no evidence of stricture or obstruction on colonoscopy and air contrast barium enema. The examiner stated that there was no evidence that diverticular disease was present while in the military service and that there was no evidence supporting aggravation of diverticular disease by the blast injuries of October 27, 1969. In the June 2013 VA medical opinion the December 2011 VA examiner opined that it was not at least as likely as not (less than 50 percent probability) that the internal hemorrhoids or colon polyps were related to service, to include any injuries sustained therein or any symptoms experienced therein. The examiner also opined that it was not at least as likely as not (less than 50 percent probability) that the internal hemorrhoids or colon polyps have been caused or aggravated (that is, permanently worsened) by the service-connected residuals of his shrapnel wounds to the abdomen beyond natural progression. The examiner noted that all available service treatment records in VBMS have been reviewed and that there was no evidence that symptoms related to the internal hemorrhoids or colon polyps were documented during military service. The examiner indicated that colon polyps occur in 30 to 50 percent of adults and that dietary and environmental factors associated with colon polyps include high fat diet, diet high in red meats, low fiber diet, cigarette smoking and obesity. The examiner added that genetics also play a role as polyps tend to run in families. More importantly, the examiner stated that trauma and surgery of the abdominal cavity are not included as risk factors. The examiner indicated that internal hemorrhoids are associated with age, diarrhea, pelvic tumors (which would not include the veteran's excised bladder tumor that was isolated to the inside of the bladder because of its small size, it's location and lack of recurrence), prolonged sitting and straining. The examiner added that constipation has not been conclusively associated with internal hemorrhoids. More importantly, the examiner stated that the area of the Veteran's intra-abdominal wounds and surgery did not include the low pelvis organs and that the internal hemorrhoids appear to have been transient as they were reported at the colonoscopy done on March 27, 2006, but not at the colonoscopies on March 27, 2003, and March 2, 2011. The examiner added that although the Veteran sustained significant wounds during combat in service, there is no evidence his battle wounds and residuals have an anatomic or pathophysiologic relationship to colon polyps or internal hemorrhoids. The Veteran has related his colon disorder to active service. Although lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet. App. at 435, as to the specific issue in this case, the relationship between his sigmoid diverticulosis, internal hemorrhoids, and history of polyps and his military service, to include residuals of a shell fragment wound to the abdomen, falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1733 n. 4. In short, Hickson and Wallin element (3), medical nexus, is not established. In summary, for the reasons and bases set forth above, the Board concludes that weight of the evidence is against findings that that there is a nexus between a current diagnosis of a colon disorder and service or that a colon disorder was caused or aggravated by the service-connected residuals of a shell fragment wound to the abdomen. Therefore, the preponderance of the evidence is against the claim and it is denied. ORDER Entitlement to service connection for a bladder disorder, to include a bladder tumor, to include as secondary to the service-connected disability of residuals of a shell fragment wound to the abdomen, to include post-operative scars, a laceration of the left kidney, and injuries to the pancreas and colon, and recurrent urinary tract infections, and exposure to herbicides, is denied. Entitlement to service connection for a colon disorder, to include sigmoid diverticulosis, internal hemorrhoids, and history of polyps, to include as secondary to the service-connected disability of residuals of a shell fragment wound to the abdomen, to include post-operative scars, a laceration of the left kidney, and injuries to the pancreas and colon, is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs