Citation Nr: 1804202 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-13 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for genitourinary cancer, to include cancer of the ureter and bladder, including as due to herbicide exposure. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Lewis, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Air Force from August 1963 to May 1967, with confirmed service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. In June 2013, the Veteran filed a Notice of Disagreement. The RO provided the Veteran with a Statement of the Case in March 2014. The Veteran filed his substantive appeal via a VA Form 9 in April 2014. Thus, the Veteran perfected a timely appeal of this issue. Jurisdiction over the Veteran's claim has since been transferred to the RO in Houston, Texas. In February 2016, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the Veteran's claim file. This appeal was previously before the Board in November 2016. The Board remanded the matter to the Agency of Original Jurisdiction (AOJ) for additional development. In his April 2014 substantive appeal and at the February 2016 hearing, the Veteran indicated that he had not been formally diagnosed with prostate cancer, but rather that his prostate had been pre-emptively removed due to his ureter and bladder cancer. Therefore, based on the Veteran's statements and the medical evidence of record, in the November 2016 remand, the Board recharacterized the Veteran's claim as one for genitourinary cancer, to include cancer of the ureter and bladder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record, as well as the Veteran's Virtual VA paperless claims file. FINDINGS OF FACT Genitourinary cancer, to include cancer of the ureter and bladder, did not manifest in service or to a compensable degree within one year after the Veteran's separation from service, and there is no probative evidence linking the Veteran's genitourinary cancer to his service, to include as due to herbicide exposure. CONCLUSION OF LAW The criteria to establish entitlement to service connection for genitourinary cancer, to include cancer of the ureter and bladder, have not been met. 38 U.S.C. §§ 1110, 1110, 1112, 1113, 1116, 5107(b) (2012); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As set forth in the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102-5103A, 5106, 5107, 5126 (2012). Under the VCAA, when VA receives a claim, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim; that VA will seek to provide; and that the claimant is expected to provide. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VA's duty to notify was satisfied by letters sent in August 2011 and December 2012. See 38 U.S.C. §§ 5102, 5103, 5103A (West 2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA has a duty to provide assistance to substantiate a claim. This duty includes assisting in the procurement of service treatment records and pertinent post-service treatment records, as well as providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c). In this regard, the Veteran's service treatment records as well as post-service VA and private treatment records and reports have been obtained. The Veteran has not identified any additional existing evidence that is not of record that is necessary for a fair adjudication of his appeal. Additionally, during the pendency of this appeal, the Veteran was provided VA medical examinations, including opinions. The Board finds that these VA examination reports are adequate to decide the claim because they are based upon consideration of the relevant facts particular to this Veteran's medical history, describe the disabilities in sufficient detail so that the Board's evaluation is a fully informed one, and contain reasoned explanations. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008). Thus, the Board finds that VA's duty to assist has been met. As noted above, in November 2016, the Board remanded this matter to the AOJ for additional development, to include obtaining an opinion as to the etiology of the Veteran's cancers. Such an opinion was provided in May 2017. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). Accordingly, the Board finds that there has been substantial compliance with the November 2016 remand directives and no further remand is necessary. See Stegall, supra; D'Aries, supra. Thus, the Board finds that VA has fully satisfied the duty to assist. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). II. Service Connection Service connection may be granted for a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In order to establish service connection, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated during service (i.e., the nexus requirement). See, Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and a chronic disease, such as malignant tumors, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. § 1101, 1110, 1112, 1113 (West 2012); 38 C.F.R. §§ 3.307, 3.309. Based upon the Veteran's confirmed service in the Republic of Vietnam during the Vietnam era, it may be legally presumed that he was exposed to herbicides, absent affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a)(6)(iii) (2017). Under applicable legal criteria, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e) (2017). The enumerated diseases which are deemed to be associated with herbicide exposure, however, do not include ureter or bladder cancer. See 38 C.F.R. § 3.309 (e) (2017). The presumptive regulations, however, do not preclude direct service connection. Rather, a claimant may establish service connection based on exposure to Agent Orange with proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding 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); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997). Therefore, given the Veteran's contentions that his ureter and bladder cancers are directly related to his presumed herbicide exposure, the Board will determine whether the Veteran is entitled to service connection based on a theory of direct causation. Factual Background and Analysis As a preliminary matter, the Board notes that the Veteran's service treatment records reveal no complaints or findings of ureter or bladder cancer. The post-service medical evidence is similarly negative for complaints or findings of such cancer for many years after separation. Rather, the record shows that the Veteran was not diagnosed as having ureter or bladder cancer until 2010, which was more than 43 years after service separation. Moreover, there is no indication in the evidence of record that any medical professional has related the Veteran's cancer to his active service or any incident therein. In January 2013, the Veteran underwent a VA contract genitourinary examination. At that time, it was noted that the Veteran had ureter cancer, bladder cancer, and prostate cancer, all of which had an onset of December 2008 and had been treated with surgery. See January 2013 VA Genitourinary Examination. The examiner offered no opinion as to the etiology of any of the cancers. Moreover, while the January 2013 VA examination report indicated that the Veteran was diagnosed with, and treated for, prostate cancer in 2008, the Veteran's medical records and his hearing testimony reveal that he has never been formally diagnosed with cancer of the prostate. At his February 2016 Board hearing, the Veteran testified that his cancer began in his urethra and later spread to his bladder. Doctors initially discovered a blockage in the Veteran's urethra before observing that his bladder was affected and he had cancer in his lymph nodes. He further reported that he was informed by his doctors that the cancer had the possibility of metastasizing to his prostate. The Veteran indicated that he underwent surgery to remove the affected areas, including his bladder and prostate. He also underwent chemotherapy. The Veteran further expressed that he had always tried to live a healthy lifestyle and had always been fairly healthy. He expressed that many of his other friends from service experienced different cancers and his belief that there was some kind of relation between his cancer and service. See February 2016 Hearing Transcript. The Board remanded the Veteran's claim for the purpose of determining the etiology of his ureter and bladder cancers and to determine if there was any causative relationship between his cancers and exposure to Agent Orange. Accordingly, an addendum medical opinion was provided in May 2017. The examiner reviewed the Veteran's file and provided a detailed history of his cancer treatment. She noted that from review of all available records, the Veteran was given a diagnosis of urothelial cell carcinoma, also known as transitional cell carcinoma (TCC), in 2008. The TCC recurred three times between March 2009 and June 2010. The Veteran underwent cystoscopy with transurethral resection of bladder tumors and in June 2010 was noted to have a left ureteral filling defect which was suspected of being a malignancy. However, biopsy from left ureteral tissue was reported only as atypical, suspicious for malignancy in June 2010. When the Veteran underwent radical cystoprostatectomy in September 2010, the pathology report for left ureter reported "moderate urothelial atypia, no tumor present." Pathology reports from the same dated also revealed no evidence of tumor to the prostate and seminal vesicles. There was no tumor identified in any of the pelvic lymph nodes. The examiner noted that the Veteran had not had any recurrences since that time and was reported to be in remission. Based upon this, the examiner noted that transitional cell carcinoma of the bladder was the only confirmed genito-urologic malignancy identified in the Veteran. See May 2017 Addendum Medical Opinion. The examiner opined that it was less likely than not that the Veteran's bladder cancer had a causal origin in service, to include from exposure to herbicides while serving in the Republic of Vietnam. As rationale, the examiner noted that the Veteran did not develop bladder cancer during or within one year of his military service, but rather was diagnosed in 2008. The examiner noted that therefore there was no evidence to support direct service connection of bladder cancer. Regarding the Veteran's contention that his cancer was the result of Agent Orange exposure, the examiner noted that review of the medical literature did not report that Agent Orange or any other herbicides were risk factors for the development of bladder cancer. Based on review of the medical literature, the examiner opined that the Veteran had other risk factors for the development of bladder cancer including tobacco use which was noted as the single most significant risk factor for developing TCC. The examiner noted that the Veteran reported minimal tobacco use for two years in the remote past. While the Veteran reported that he had stopped smoking years ago, the examiner noted that the medical literature indicated that there was a sufficient latency period between prior tobacco use and the diagnosis of TCC. According to the examiner, this supports tobacco use being a risk factor for development of bladder cancer in the Veteran. Additional risk factors for the Veteran included male gender, advancing age, and Caucasian ethnicity. Id. As mentioned above, though the Veteran served in the Republic of Vietnam and is presumed to have been exposed to herbicides during such service, appendix cancer is not among the diseases associated with exposure to certain herbicide agents. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Thus, service connection is not warranted on a presumptive basis. The Board has considered direct causation, but the evidence of record fails to establish that the Veteran's bladder cancer is attributable to his service. The Veteran was diagnosed with transitional cell carcinoma of the bladder in December 2008, approximately 41 years after leaving service. In the May 2017 addendum opinion, the VA examiner opined that it was less likely than not that the Veteran's bladder cancer was incurred in or caused by service. As rationale, the examiner stated that there was no evidence of bladder cancer during service or for many years thereafter. With respect to the Veteran's contention that his cancer was a result of his exposure to herbicides in Vietnam, the examiner stated that review of medical literature did not identify herbicide exposure as a risk factor for the development of bladder cancer. Further, she identified other risk factors including, male gender, advancing age, Caucasian ethnicity, and a limited history of smoking, which were more likely contributing risk factors to the Veteran's bladder cancer. The Board places great probative weight on the May 2017 addendum medical opinion. The Board finds that this opinion clearly reflected consideration of the Veteran's STRs, private treatment records, and lay statements concerning the onset of symptoms, and provided a complete rationale supported by the evidence of record as well as pertinent review of medical literature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); 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 opinion.") Therefore, the Board accords the greatest probative weight to the May 2017 addendum opinion. Notably, there is no contrary medical evidence of record to refute the May 2017 addendum opinion. In this regard, none of the Veteran's post-service treatment records, including his private treatment records, suggest that his bladder cancer was caused by his active duty service, to include herbicide exposure in Vietnam. Lastly, as mentioned above, the medical evidence of record shows that the Veteran's bladder cancer did not manifest, much less to a compensable degree, within one year of his separation from service. Thus, presumptive service connection for a chronic disease is not warranted. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Board considered the Veteran's lay statements in evaluating his claim. In this regard, he is competent to report symptoms that require only personal knowledge as they come to him through his senses as well as any diagnosis reported to him by a medical professional. See Layno v. Brown, 6 Vet. App. 465, 47 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Veteran, as a lay person, is generally not competent to link his symptoms to a specific diagnosed disability or to relate them to any instance of his military service. While it is in error to categorically reject layperson evidence as incompetent, the Board is allowed to consider the facts of a particular case to determine the layperson's competence. See Davidson v. Nicholson, 581 F.3d 1313 (Fed. Cir. 2009). One factor to consider is the complexity of the question to be determined. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (providing an example at footnote 4 that a layperson would be competent to diagnose a simple condition such as a broken leg but not to diagnose a form of cancer.) In this regard, the Veteran's statements as to the relationship between his genitourinary cancers and his military service, including his exposure to herbicides in Vietnam, are not within the realm of knowledge of a layperson. Rather, the nature and causation of a form of cancer is a complex question that requires expertise. There is no indication that the Veteran possesses such specialized knowledge, and therefore, he is not competent in this regard. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, the Board accords his statements regarding the nature and etiology of his genitourinary cancer no probative weight. As a preponderance of the evidence is against entitlement to service connection for genitourinary cancer, to include cancer of the ureter and bladder, including as due to herbicide exposure, denial of the benefit sought is required and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); see generally Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); see Gilbert, supra. ORDER Entitlement to service connection for genitourinary cancer, to include cancer of the ureter and bladder, including as due to herbicide exposure is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs