Citation Nr: 1757094 Decision Date: 12/11/17 Archive Date: 12/20/17 DOCKET NO. 14-15 583A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for bladder cancer, to include as due to herbicide exposure. 2. Entitlement to service connection for a bilateral foot disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Talamantes, Associate Counsel INTRODUCTION The Veteran, of the Vietnam era, served on active duty in the Army from September 1968 to May 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran testified before the undersigned Veterans Law Judge in an April 2017 Travel Board hearing. A transcript of that hearing has been associated with the file. The Board notes that during the April 2017 hearing the Veteran provided an oral waiver of consideration by the AOJ should additional evidence be added to the file. Additional evidence from both the Veteran and the RO has been submitted since the hearing. Given the oral waiver, the Board will proceed with the appeal. For purposes of increased clarity and brevity, the Board has articulated its reasons and bases for the order below in its findings of fact and conclusion of law. The issue of bladder cancer is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. During the appeal period, the Veteran was diagnosed as having chronic foot pain, peripheral neuropathy, and lower extremity neuropathy. He has consistently described his symptoms as a burning sensation, pain, throbbing, numbness, and tingling since service. 2. In the September 1968 entrance examination the Veteran noted his health as good. The May 1970 exit examination notes cramps in legs, bone, joint, or other deformity and foot trouble. His VA treatment records dated between August 2005 and October 2013 illustrate ongoing complaints of, and treatment for foot pain. 3. As indicated in his DD Form 214, the Veteran received the National Defense Service Medal, Vietnam Service Medal, and Vietnam Campaign Medal. His service records show he served in the Republic of Vietnam during the Vietnam War, so exposure to Agent Orange is presumed. 4. The VA examiner in the October 2013 VA DBQ opined that the Veteran's foot condition is not related to service, as the examiner stated there was no documentation to indicate pain of the feet in service. 5. A private examiner provided an opinion in February 2014, stating that exposure to Agent Orange is more likely than not the cause of the Veteran's peripheral neuropathy. 6. During an August 2017 VA podiatry consultation the Veteran presented for evaluation of his bilateral foot pain. He described the pain as numbness, tingling, and burning sensation. The examiner diagnosed the Veteran with lower extremity neuropathy, noting Agent Orange exposure as a possible etiology, stating there was no evidence of etiology from most common causes of neuropathy. 7. As the Veteran was diagnosed with lower extremity neuropathy during the August 2017 VA podiatry consultation where he described the foot pain, numbness, and tingling he was experiencing, it is reasonable to conclude that his neuropathy manifests as pain in his feet. 8. Despite the negative October 2013 VA opinion, the Board finds that the other evidence of record-including the Veteran's competent and credible testimony, service treatment records, the exit examination that clearly denotes foot problems, post-service treatment records including the opinion of the February 2014 private examiner that unequivocally opined that Agent Orange caused the Veteran's peripheral neuropathy, and the August 2017 VA examiner who did not rule out Agent Orange exposure -significantly outweigh the October 2013 negative VA opinion. CONCLUSION OF LAW The Veteran has peripheral neuropathy of the bilateral feet, he is presumed to have been exposed to Agent Orange, and he provided competent and credible evidence regarding an in-service injury and continuity of foot symptoms since service. Service connection for a foot condition, to include peripheral neuropathy is warranted. 38 U.S.C. §§ 1110, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). ORDER Service connection for peripheral neuropathy of the bilateral feet is granted. REMAND The Board finds that additional development is necessary regarding the Veteran's service-connection claim for bladder cancer secondary to herbicide exposure. Here, the evidence reveals a current diagnosis of bladder cancer. In addition to exposure to Agent Orange, the Veteran reported being exposed to diesel fuel and the burning of human waste while in service. He was an engineer and ran a fuel truck that was charged with cleaning up fuel spills. He also reported being around the smell of human waste being burned. See Statement in Support of Claim submitted March 2013. During the August 2017 hearing, the Veteran's representative mentioned that another Veteran with bladder cancer obtained an opinion stating that there was no evidence to rule out Agent Orange exposure. The same day of the hearing, the Veteran submitted a 16 page American Cancer Article discussing Agent Orange. This article notes there have only been a handful of studies looking at bladder cancer risk in Vietnam Veterans and the results have been mixed. Bladder cancer does not fall within one of the presumptive diseases under 38 C.F.R. §3.309(e). However, this does not preclude the Veteran from seeking direct service connection. Review of the record indicates that the Veteran has not been afforded a VA examination specific to his bladder cancer, and in light of his exposures, the Board finds that a VA opinion would be helpful in determining the nature and etiology of his bladder cancer. On remand, the Board finds that the Veteran should be afforded a VA examination to determine whether his bladder cancer is either related to his period of active service, to include exposure to Agent Orange, exposure to diesel fuel, or the exposure of the burning of human waste. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file any and all outstanding VA treatment records related to the claimed bladder cancer. The Veteran should also be afforded the opportunity to identify and/or provide any outstanding private evidence pertinent to his claim. 2. Schedule an appropriate VA examination to determine the nature and etiology of the Veteran's bladder cancer. If possible, the examination should be performed by an examiner who has experience with herbicide-related diseases. The examiner should have access to the Veteran's electronic claims file for review. A comprehensive clinical history should be recited, to include a discussion of the Veteran's documented medical history and assertions. Any special studies or tests should be accomplished. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the bladder cancer manifested during active service; manifested within one year of his May 1970 separation; or is otherwise related to an event, injury, or disease incurred during active service, to include his presumed exposure to herbicides (Agent Orange) in Vietnam. The examiner is also asked to address the impact, if any, of exposure to diesel fuel and burning of human waste on his later-diagnosed bladder cancer. Review of the entire file is required; however, attention is invited to the American Cancer Society Article, noting bladder cancer studies and mixed results (VBMS, document labeled Correspondence, receipt date April 7, 2017, pg. 6 of 17). The examiner is asked to provide a detailed rationale for any opinions reached. The examiner is advised that the fact that bladder cancer is not a disease that is presumptively associated with herbicide exposure under 38 C.F.R. § 3.309(e) may not be the only basis for a negative nexus opinion. If there is medical documentation that an etiological relationship does not exist on a primary basis, reference should be made to that documentation. In other words, there should be a more complete medical explanation of why medical evidence does not show Agent Orange is a risk factor for bladder cancer. 3. After completion of the above, the AOJ should review the expanded record and determine if the appeal can be granted. If the claim remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case. After an opportunity to respond, the case should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs