Citation Nr: 1512483	
Decision Date: 03/24/15    Archive Date: 04/01/15

DOCKET NO.  13-09 253A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to service connection for bladder cancer.


REPRESENTATION

Veteran represented by:	Pennsylvania Department of Military and Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Trickey, Associate Counsel

INTRODUCTION

The Veteran had active military service from September 1967 to September 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.  

The Veteran filed a request for his appeal to be advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2014).  As the Board did not discover this request until the current review, the request is considered moot given the decision below.

The Veteran testified before the undersigned Veterans Law Judge at a February 2014 video hearing.  A transcript of this hearing is contained in the Virtual VA electronic  file.


FINDINGS OF FACT

1. The Veteran served in Vietnam and is presumed to have been exposed to Agent Orange.

2.  The Veteran has not had bladder cancer or residuals thereof during this appeal period.

3.  Bladder cancer was not manifest during service or within one year of separation.  Bladder cancer is not attributable to service.






CONCLUSION OF LAW

Bladder cancer was not incurred in or aggravated by service, nor may bladder cancer be presumed to have been incurred therein.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014). 
	

REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  See, e.g., 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2014).  

The RO provided the required notice in a letter sent to the Veteran in March 2007.  This letter informed the Veteran of what evidence was required to substantiate his claim and of his and VA's respective duties for obtaining evidence.  The letter also informed the Veteran as to the law pertaining to the assignment of a disability rating and effective date as the Court required in Dingess v. Nicholson, 19 Vet. App. 473 (2006).  This letter also informed the Veteran what was required to reopen his previously denied claim with new and material evidence.

With respect to the duty to assist, the Board finds that all necessary development has been accomplished and appellate review may proceed without prejudice to the Veteran.  Specifically, the claims file contains the Veteran's service treatment records, VA medical records, the Veteran's lay statements, private medical records, and a February 2014 hearing transcript.

The Veteran provided testimony at a February 2014 hearing before the undersigned Veterans Law Judge.  The record reflects that at the February 2014 hearing, the undersigned Acting Veterans Law Judge clarified the issues on appeal, focused on the elements necessary to substantiate the claim, and sought to identify any further development that was required to help substantiate the claim.  The actions of the Judge supplement VCAA and comply with 38 C.F.R. § 3.103.

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim.  



Law and Regulations

In general, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2014).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  See 38 C.F.R. § 3.303(d) (2014).

In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) 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 Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  

The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

When considering evidence supporting a service-connection claim, the Board must consider, on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection.  Davidson, 581 F.3d at 1316 (reiterating that "'[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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.'") (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007)). 

If the disability is of the type for which lay evidence is competent, the Board must weigh that evidence against other evidence of record in making its determination regarding the existence of service connection.  See Buchanan, 451 F.3d at 1334-37.
In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2014).

The Veteran served in Vietnam and presumed that he was exposed to Agent Orange under 38 U.S.C.A. § 1116.  In some circumstances, a disease associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue.  38 U.S.C.A. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e).  In this regard, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era 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 U.S.C.A. § 1116(f).

The current list of diseases, subject to presumptive service connection, under 38 C.F.R. § 3.309(e), include prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), or soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma) that manifest to a degree of 10 percent or more at any time after service.  38 C.F.R. §§ 3.307(a)(6)(ii); 3.309(e) (2014).   The term soft-tissue sarcoma is defined at Note 1 under 38 C.F.R. § 3.309(e) (2014).  There is a general one year presumption for malignant tumors.  38 U.S.C.A. § 1101, 1110, 1112, 1113.

Notwithstanding the provisions of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.309(e), relating to presumptive service connection due to exposure to Agent Orange, a claimant is not precluded from establishing service connection with proof of actual causation, that is, proof the exposure to Agent Orange actually causes a bladder cancer, which is not included in the list in 38 C.F.R. § 3.309(e).  See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 C.F.R. § 3.303(d).



Analysis

As an initial matter, the Board notes that the Veteran did engage in combat with the enemy.  His DD 214 shows that he was an infantryman during service, served in Vietnam and received the Combat Infantryman Badge and the Purple Heart.

Therefore, the combat provisions of 38 U.S.C.A. § 1154(b) are potentially applicable.  To the extent that he reports that he was exposed to herbicides during service (combat), the Board accepts such evidence.  38 U.S.C.A. § 1154.  However, he has not reported that he had bladder cancer during service.  To that extent he has not provided satisfactory evidence and section 1154(b) is not applicable.

In addition, 38 U.S.C.A. § 1154(b) deals only 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.  Evidence of a current disability and a nexus to service is still required. 

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  See 38 U.S.C.A. §§ 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997).  Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.   In the absence of proof of a present disability due to disease or injury, there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  

In the instant case, the Veteran in November 2011 filed a claim of entitlement to service connection for bladder cancer.  He contends that he has bladder cancer based on exposure to herbicides during service.

Service treatment records include an August 1969 Report of Medical Examination that evaluated the genito-urinary system as normal.  An August 1969 Report of Medical History shows the Veteran denied having genito-urinary symptoms.  There is no evidence that the Veteran's bladder cancer was manifest during service or within one year of separation from service.  Rather, all the lay and medical evidence establishes a remote onset of bladder cancer.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309.

Records show the Veteran underwent resection of a papillary transitional cell carcinoma of the urinary bladder in January 2001.  Records dated August 2001 contain cystoscopy results showing that the Veteran manifested no evidence of recurrence of the urinary bladder tumor.  

As the Veteran's diagnosis of papillary transitional cell carcinoma of the urinary bladder is not included in the list of diseases, subject to presumptive service connection, under 38 C.F.R. § 3.309(e), service connection on a presumptive basis due to herbicide exposure pursuant to 38 C.F.R. § 3.309(e); 38 C.F.R. § 3.307(a)(6)(ii) also is not warranted.  Specifically, the Veteran's papillary transitional cell carcinoma of the urinary bladder is not included in the conditions identified as soft-tissue sarcoma.  See 38 C.F.R. § 3.309(e) (2014).  Although the Veteran could still establish service connection on a direct basis, a current disability has not been shown by the evidence for record.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

The Board notes that service connection can be warranted if there was disability present at any point during the claim period, even if it is not currently present. McClain v. Nicholson, 21 Vet. App. 319 (2007).  The Board is also cognizant of the holding of the U.S. Court of Appeals for Veterans Claims (Court) in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).  In Romanowsky, the Court held that when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency.  The Veteran filed the instant claim in November 2011.

The Board finds that the preponderance of the evidence establishes that the Veteran does not have current bladder cancer or post operative residuals and has not manifested bladder cancer residuals at any point during the appeal period.   

As noted above, the Veteran underwent resection of a papillary transitional cell carcinoma of the urinary bladder in January 2001.  Records dated March 2001 show the Veteran was feeling well and voiding well following the resection in January 2001.  Records dated August 2010 show that the Veteran's pelvis was within normal limits.  Records dated April 2011 show the Veteran was found to have a normal genito-urinary system.  

A May 2012 VA consultation for the Veteran's thyroid cancer noted no recurrence of papillary transitional cell carcinoma of the urinary bladder.  

The law requires the existence of current disability.  After a review of the record, the Board finds that the most probative evidence establishes that he has not had bladder cancer or residuals at any time during this appeal period or in proximity to the claim.  In this regard, the clinical findings establish that the Veteran has not had a recurrence of papillary transitional cell carcinoma of the urinary bladder and there is no proof of residual disabiility. 

The Board finds that the Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).   

In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence.  See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).

Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

The Board has considered the Veteran's lay statements regarding his bladder cancer.  The Veteran has not alleged that his bladder cancer has recurred or that he experiences residual disability, including voiding dysfunction.  

The clinical evidence of record, consisting primarily of the Veteran's private treatment records, is assigned great probative value in deciding this case.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (threshold considerations in weighing the probative value of medical opinions include the qualifications of the person opining, and most of the probative value from such opinions come from their reasoning).  

The Board finds that the clinical evidence of record demonstrates that the Veteran has not had a recurrence of papillary transitional cell carcinoma of the urinary bladder.  Additionally, the Veteran has not provided any evidence of residual disability, including voiding dysfunction.  In fact, the Veteran has reported good genito-urinary function to his treating sources.

In sum, the Board finds that the Veteran did not have bladder cancer during the pendency of the appeal nor was there evidence of a recent manifestation of bladder cancer prior to the initiation of the claim.  Here, we find no conflict between the lay and medical evidence.

Here, there is no evidence of bladder disability at any time during the appeal period or of a period in time proximate thereto.  Furthermore, there is no proof of bladder cancer during service, within one year of separation or otherwise linking the remote onset to service to include herbicide exposure.

The preponderance of the evidence is against the claim and there is no doubt to be resolved.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Service connection for bladder cancer is denied.



____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs