Citation Nr: 1804099 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 16-46 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for recurrent bladder cancer, to include as due to herbicide agent and/or environmental exposure. 2. Entitlement to service connection for recurrent bladder cancer, to include as due to herbicide agent and/or environmental exposure. REPRESENTATION Appellant represented by: Colin E. Kemmerly, Attorney at Law ATTORNEY FOR THE BOARD E. Alexander Neff, Associate Counsel INTRODUCTION The Veteran served on active duty in the Navy from March 1955 to May 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Veteran initially filed his claim for entitlement to service connection for recurrent bladder cancer in December 2007. On November 3, 2008, the Veteran was notified that his claim was denied on the basis that there was no nexus between his bladder cancer and service or herbicide exposure and no evidence that bladder cancer began in service. The record at the time contained the Veteran's STRs and private medical records showing at least two instances of diagnosed bladder cancer since May 2007. The Veteran did not appeal the November 2008 rating decision or submit new and material evidence within one year, and, as such, it became final. Since the November 2008 denial, the record now contains an August 2013 opinion from the Veteran's treating private physician, Dr. B., which suggests that the Veteran's exposure to jet fuel and aviation cleaning solvents were related to the development of his bladder cancer. The Board finds that this letter is new and material evidence that relates to an unestablished fact necessary to establish the Veteran's claim. As such, the Veteran's petition to reopen his claim for entitlement to service connection for recurrent bladder cancer is granted. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (2012). The issue of entitlement to service connection is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A November 2008 rating decision denied service connection for bladder cancer; the Veteran did not appeal that decision or submit new and material evidence within one year, and it became final. 2. Evidence received since the November 2008 rating decision related to a previously unestablished fact needed to substantiate the underlying claim of service connection for bladder cancer. CONCLUSIONS OF LAW 1. The November 2008 rating decision denying service connection for bladder cancer is final. 38 U.S.C.A. §§ 7105, 7108; 38 C.F.R. §§ 3.109, 20.200, 20.201, 20.302, 20.305. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for recurrent bladder cancer, to include as due to herbicide agent and/or environmental exposure. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. §3.156. ORDER New and material evidence has been received to reopen the claim for service connection for recurrent bladder cancer. REMAND In August 2013, Dr. B. provided an opinion regarding the etiology of the Veteran's bladder cancer. Notably, he found that "some circumstances" that the Veteran encountered in his life could have "definitely predisposed him" to bladder cancer. He noted that during service the Veteran was constantly exposed to jet fuel, as well as other aviation cleaning solvents. These substances "most probably put [the Veteran] at very high risk" for bladder cancer. In support of this finding Dr. B. noted that the Veteran did not have a family history of cancer and was never a smoker. Dr. B. then concluded that the Veteran's in-service exposure to jet fuel and solvents placed him at a high risk to develop bladder cancer. The Board observes that in May 2007, very shortly before being diagnosed with bladder cancer, the Veteran reported to Dr. B. that he had quit smoking in 1980, and that he had smoked for 25 years. In a private medical record from September 2015, the Veteran reported that he stopped smoking in 1976. In light of these statements, the Board finds that the August 2013 opinion is predicated on an incorrect factual basis, i.e., that the Veteran had never smoked. As such, it cannot serve as the basis to grant the claim. However, the Board does find that the August 2013 opinion is sufficient to meet the low threshold to trigger the Secretary's duty to assist by providing a medical opinion as to whether the Veteran's recurrent bladder cancer is related to service. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, the Board observes that a VA medical opinion is necessary to determine the etiology of the Veteran's recurrent bladder cancer. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Please provide the Veteran with the appropriate authorizations to assist him with obtaining any outstanding VA and non-VA medical records regarding the treatment of his bladder cancer. Provide him the opportunity to submit additional records in support of his claim for service connection. 2. After the completion of step 1, please arrange for an appropriate VA examiner to provide an opinion to answer the following questions. If it is determined that a VA examination is necessary, one should be scheduled. Is it at least as likely as not (50 percent probability or greater) that the Veteran's recurrent bladder cancer is related to service, to include his conceded exposure to jet fuel, aviation cleaning solvents and herbicides/Agent Orange? Please take as fact that the Veteran was exposed to Agent Orange/herbicides as well as chemicals like aviation cleaning solvents and jet fuel as a jet/aircraft mechanic during his 20+ years of military service, including in Vietnam. Please consider and discuss as necessary the Veteran's reports that he stopped smoking in 1976 or 1980 and that he had smoked for 25 years; the Veteran's May 2007 statements to Dr. B. that he had worked with air conditioning units for most of his life and denied encountering solvents or environmental toxins; the Veteran's April 2014 statement detailing his exposure to chemicals and other substances in service. 3. Finally, please readjudicate the claim. If the claim remains denied, issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters 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 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.A. §§ 5109B, 7112. ____________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs