Citation Nr: 1740920 Decision Date: 09/20/17 Archive Date: 10/02/17 DOCKET NO. 15-43 340 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for bladder cancer. 2. Entitlement to service connection for kidney cancer. 3. Entitlement to service connection for prostate cancer. REPRESENTATION Appellant represented by: Gina D. Holness, Esq. ATTORNEY FOR THE BOARD L. McCabe, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1965 to April 1969, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont. In August 217, the Veteran's representative moved for advancement on the docket due to the Veteran's advancing age and deteriorating health. In this regard, appeals must be considered in docket order, but may be advanced on the docket upon a showing of good cause. 38 U.S.C.A. § 7107 (West 2014); 38 C.F.R. § 20.900(c) (2016). Sufficient cause was shown at the prehearing conference and, therefore, the motion to advance the appeal on the Board's docket is granted. Additionally, in the December 2015 substantive appeal, the Veteran requested a hearing at the RO before a Veterans Law Judge of the Board (Travel Board hearing); however, the Veteran's representative later withdrew this request. See 38 C.F.R. § 20.704(e) (2016). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran had service in the Republic of Vietnam and is thus presumed to have been exposed to herbicides during service. 2. The evidence is at least in equipoise as to whether the Veteran's diagnosed bladder cancer was caused by in-service exposure to herbicides. 3. The evidence is at least in equipoise as to whether the Veteran's diagnosed kidney cancer was caused by in-service exposure to herbicides. 4. The Veteran's diagnosed prostate cancer is presumed to have been caused by his herbicide exposure in service. CONCLUSIONS OF LAW The criteria for service connection for bladder cancer have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2016). The criteria for service connection for kidney cancer have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2016). The criteria for service connection for prostate cancer have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2016). Establishing service connection on a direct basis 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). The Veteran seeks entitlement to service connection for bladder cancer, kidney cancer, and a prostate disability. See, e.g., November 2016 Operative Report from J.C.K., M.D. (diagnosing "Malignant neoplasm of urinary bladder"; reflecting findings including a "bladder tumor floor of the bladder on the right proxim to the region of the right ureteral orifice" and a "tumor that extend[s] proximally from the 4 o'clock position all the way to the 10 o'clock position the bladder neck and on the intravesical portion of the prostate"; and noting treatment including "Cystoscopy, transurethral resection of the prostate"); Treatment Notes from Harvard Vanguard Medical Associates dated in February and March 2015 (reflecting current diagnoses including "Papillary adenocarcinoma of [the] bladder," "Cancer of [the] bladder," and "Cancer of [the] kidney"); November 2014 Urology Treatment Note from J.C.K., M.D. (noting a "history of renal cell carcinoma status post nephrectomy in 04/2014 . . . [and] of bladder cancer status post resection of a large 5 cm lesion on the floor of the bladder left in March 2014"); June 2015 Operative Report from J.C.K., M.D. (noting that the Veteran's "[p]rostate shows enlarged lateral lobes as well as an elevated bladder neck"). See also 38 C.F.R. § 3.303(a); Davidson, 581 F.3d 1313. See, too, McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the current disability requirement is satisfied when a disability is shown during the course of a claim, even if it subsequently resolves while the claim is still pending). He contends that these diagnosed disabilities were caused by exposure to Agent Orange and are thus related to his active service. The Veteran's service personnel records show that he served on land in Vietnam during the Vietnam Era, and thus he is presumed to have been exposed to an herbicide agent, including Agent Orange. See 38 U.S.C.A. § 1116(f) (West 2014); 38 C.F.R. § 3.307(a)(6) (2016). At the outset, the Board notes that VA has determined that certain diseases, including various types of cancer, are deemed associated with herbicide exposure. 38 U.S.C.A. § 1116(a) (West 2014); 38 C.F.R. §§ 3.307, 3.309(e) (2016). Such identified diseases shall be service connected if a Veteran was exposed to a herbicide agent during active military, naval, or air service, subject to the requirements of 38 C.F.R. § 3.307 (a)(6), 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. See 38 C.F.R. § 3.309(e) (2016); see generally McCartt v. West, 12 Vet. App. 164, 166-68 (1999). Neither bladder cancer nor kidney cancer are among the diseases specified in 38 U.S.C.A. § 1116(a). Moreover, the Secretary of Veterans Affairs (Secretary) has published a list of specific conditions, which includes urinary bladder cancer and renal cancer (kidney and renal pelvis), for which a presumption of service connection based on exposure to herbicides used in Vietnam during the Vietnam era is not warranted. See Notice, 79 Fed. Reg. 20308 (Apr. 11, 2014); Notice, 77 Fed. Reg. 47924 (Aug. 10, 2012); Notice, 75 Fed. Reg. 81332 (Dec. 27, 2010); Notice, 75 Fed. Reg. 32540 (June 8, 2010); Notice, 74 Fed. Reg. 21,258 (May 7, 2009); and Notice, 72 Fed. Reg. 32,395 (June 12, 2007). Importantly, while the Secretary of VA (Secretary) has concluded that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined that a presumption of service connection is warranted, this conclusion is based solely on statistical analyses conducted by NAS. See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2012 (hereinafter "Update"), 79 Fed. Reg. 20,308 (April 11, 2014) (classifying kidney and bladder cancers as diseases for which there is "inadequate or insufficient evidence to determine association" with herbicides); see also National Academy of Sciences, Veterans and Agent Orange: Update 2014 (March 10, 2016) (available at https://www.nap.edu/download/21845) (reclassifying bladder cancer as a disease that has "limited or suggestive evidence of an association" with exposure to herbicides). See, too, Notice, 77 Fed. Reg. 47,924, 47,925 (Aug. 10, 2012); Notice, 75 Fed. Reg. 81332, 81333 (December 27, 2010); Notice, 72 Fed. Reg., 32395, 32407 (June 12, 2007). These statistical analyses derived from population studies-and the Secretary's determinations as to whether a presumption for a given disease should be established based on NAS's reports-do not rule out the possibility of service connection based on direct scientific or medical evidence. See Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009) ("To permit the denial of service connection for a disease on the basis that it is not likely there is any nexus to service solely because the statistical analysis does not support presumptive service connection, would, in effect, permit the denial of direct service connection simply because there is no presumptive service connection."). Indeed, the Secretary's Update and prior Notices specifically state that a determination that a positive association does not exist between a given disease and Agent Orange exposure does not preclude VA from granting service connection for any such disease if the evidence otherwise supports service connection. See Update, 79 Fed. Reg. at 20,308. In this regard, certain chronic diseases, including malignant tumors (cancer), may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016). However, here, there is no evidence indicating that the Veteran's bladder or kidney cancer was manifest to a degree of 10 percent or more during the first year following separation from service in 1972. Further, the Veteran's STRs do not show, nor does the Veteran contend, that he was treated for, or diagnosed with any disorder affecting his kidneys, bladder, or prostate during his active service. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012). Rather, private medical records reflect treatment for bladder, kidney, and prostate problems beginning in 2014, so approximately 45 years following his separation. Thus, presumptive service connection the basis of chronicity is not warranted. Accordingly, although presumptive service connection, either on the basis of herbicide exposure or based on chronicity, is not warranted, service connection for the Veteran's bladder and kidney cancer may still be established on the basis of direct causation. See McCartt v. West, 12 Vet. App. 164, 167 (1999); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (observing that the "availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange"). Here, the Veteran's private treating urologist, J.C.K., M.D., linked the Veteran's kidney and bladder cancer to his in-service exposure to Agent Orange. Specifically, Dr. J.C.K. indicated that the Veteran was a "nondrinker/nonsmoker" and thus lacked any significant risk factors for the development of kidney and bladder cancers. See August 2015 Letter from J.C.K., M.D.; March 2017 Letter from J.C.K., M.D. Accordingly, in light of Dr. J.C.K.'s familiarity with the Veteran as his treating urologist since 2010, considering the lack of any additional risk factors, and based on his specialized expertise in the diagnosis and treatment of urological conditions, Dr. J.C.K. opined that it was "highly likely" that his cancers were the result of "environmental chemical exposures," specifically "exposure to Agent Orange while [in] Vietnam." See id. Additionally, the Veteran's treating internal medicine specialist, Dr. R.A.P., opined that the Veteran's kidney and bladder cancer was related to his in-service exposure to herbicides. See March 2016 Letter from R.A.P., M.D. Dr. R.A.P. explained that, based on her familiarity with the Veteran as his treatment provider since 2011, and in light of the fact that the Veteran did not report any additional causal factors to which the cancers could be attributed, there was a "high probability that [the Veteran's] cancers [of the bladder and kidney] are due to his exposure to dioxin . . . while he was in Vietnam." See id. These opinions are supported by rationale, specifically that the Veteran had no other identified risk factors for kidney and/or bladder cancer save for his exposure to Agent Orange. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that most of the probative value of an opinion comes from its rationale or underlying reasoning). Further, the Veteran's treating physicians based their opinions on their familiarity with and long-term treatment of the Veteran. See August 2015 Letter from J.C.K., M.D.; March 2017 Letter from J.C.K., M.D.; March 2016 Letter from R.A.P., M.D. And although there is no "treating physician rule" requiring the Board to give additional evidentiary weight to the opinion of a physician or other healthcare provider that has treated the Veteran, such a clinician does have an intimate knowledge of the severity of his condition over a span of time and the Veteran's reported medical history. See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993); and Chisem v. Brown, 4 Vet. App. 169 (1993) (noting that there is no "treating physician rule" requiring the Board to give additional evidentiary weight to opinions of doctors who have evaluated or treated the Veteran over time, but it is permissible for the Board to bear this length of treatment in mind when considering just how familiar with the Veteran's condition the clinician may be). Accordingly, the Veteran has current diagnoses of kidney and bladder cancer, which have been linked by medical evidence to his in-service exposure to herbicides. Moreover, there is no etiological opinion to the contrary. Thus, the Board finds that, at the least, reasonable doubt exists as to the question of the origin of the Veteran's kidney and bladder cancer. When resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's kidney and bladder cancer are as likely as not attributable to his active military service. And, under VA law, in such a circumstance, the claimant must prevail. See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore, service connection is warranted for kidney and bladder cancer. Moreover, as concerning the Veteran's claim for service connection for a prostate disability, the Board notes that a November 2016 operative report reflects a "tumor . . . on the intravesical portion of the prostate." See November 2016 Operative Report from J.C.K., M.D. In this regard, "[p]rostate cancer" is among the conditions for which presumptive service connection is available based on in-service exposure to herbicide agents, including Agent Orange. See 38 U.S.C.A. § 1116(f); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). Considering the medical evidence reflecting a diagnosis of a tumor affecting the Veteran's prostate, and absent affirmative evidence of record to rebut the resultant presumption that his prostate tumor was incurred during active service, presumptive service connection for a prostate disorder is warranted. See 38 U.S.C.A. § 1116(a), (f); 38 C.F.R. § 3.307(a)(6), (d); 38 C.F.R. § 3.309(e). ORDER Service connection for bladder cancer is granted. Service connection for kidney cancer is granted. Service connection for prostate cancer is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs