Citation Nr: 1637958 Decision Date: 09/28/16 Archive Date: 10/07/16 DOCKET NO. 11-33 714 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for urinary bladder cancer. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from October 1962 to August 1967 and May 1974 to December 1974, including service in the Republic of Vietnam from December 1966 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. FINDINGS OF FACT 1. The Veteran was diagnosed in April 2008 to have papillary urothelial cell carcinoma of the bladder (urinary bladder cancer) with a recurrence in February 2009. 2. The Veteran's urinary bladder cancer is related to exposure to diesel fuels, mosquito sprays and herbicides during his military service. CONCLUSION OF LAW Urinary bladder cancer was incurred in service. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION In May 2009, the Veteran filed a claim for urinary bladder cancer. The Veteran essentially contends that he was exposed to various chemicals during service, to include mosquito sprays, diesel fuels and tactical herbicides, and that the combination of exposure to these chemicals resulted in the development of his urinary bladder cancer. Service connection means that the facts establish 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 during service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a). The Veteran's private treatment records have been obtained and surgical pathology records demonstrate that, in April 2008, he was diagnosed to have papillary urothelial (or transitional) cell carcinoma. He underwent treatment for his urinary bladder cancer. However, a February 2009 surgical pathology report shows he had a recurrence and he underwent a second round of treatment. It appears that he currently is considered cancer free and goes for checkups to his Urologist. In support of his claim, the Veteran's treating Urologist submitted a medical statement dated February 11, 2010, in which he stated that it is his "professional opinion that as likely as not there is a high degree of medical certainty that his bladder cancer was caused by his exposure to diesel fuels, mosquito sprays and herbicides during his military service in the Panama Canal Zone, South Vietnam. Studies assert that exposure to diesel fuels, mosquito sprays and herbicides elevate the risk of developing bladder cancer, even 40 years after said exposure." The Board acknowledges that the Veteran served in the Republic of Vietnam and is, therefore, presumed to have been exposed to tactical herbicides due to such service. See 38 C.F.R. § 3.307(a)(6)(iii). The Secretary of VA has determined, however, that a presumption of service connection as based upon such exposure is not warranted for cancers of the bladder. See Determinations Concerning Illnesses Discussed In National Academy of Sciences Report: Veterans and Agent Orange: Update 2012, 79 Fed. Reg. 20,308 (April 11, 2014). Although this does not preclude service connection on a direct basis, the evidence would clearly have to demonstrate that, in the veteran's specific case, his bladder cancer was the result his exposure to herbicides. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In the present case, the Board notes that the RO denied the Veteran's claim for service connection essentially because bladder cancer is not a presumptive herbicide disease. The RO did not accept the private Urologist's medical opinion as probative evidence of the Veteran's bladder cancer having any other nexus to service. The Board finds, however, that the private Urologist's medical opinion is highly probative and persuasive evidence of a nexus between the Veteran's urinary bladder cancer and his military service. First, the medical opinion is stated in a very definitive manner. The Urologist stated "as likely as not there is a high degree of medical certainty." Such a high degree of medical certainty gives probative value to the medical opinion. See Hinkle v. Nicholson, 19 Vet. App. 465 (2005)(speculative medical opinions are entitlement to little, if any, probative value); Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a medical opinion depends on the degree of medical certainty it provides). Furthermore, the examiner supported his medical opinion with a rationale, which is that there are studies out there that support his opinion. Such rationale also gives probative value to the medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Furthermore, the Board finds that the private Urologist's medical opinion fully addresses the Veteran's contention that it was not just his exposure to tactical herbicides that caused his urinary bladder cancer but the combination of exposures to diesel fuels and mosquito repellants, as well as herbicides, that produced his urinary bladder cancer. In that respect, the Board finds that this medical opinion supports finding that there is a direct relationship between the Veteran's urinary bladder cancer and his exposures to diesel fuels and mosquito sprays, as well as herbicides, in service. There is no negative evidence of record that is against this favorable probative medical opinion. Consequently, the Board finds that the preponderance of the evidence is in favor of finding that service connection for the Veteran's urinary bladder cancer is warranted. Service connection is, therefore, granted. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for urinary bladder cancer is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs