Citation Nr: 1804695 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 13-32 287 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for bladder cancer, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. N. Quarles, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1966 until April 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Board remanded the matter for further development in July 2017. In December 2017, the RO waived RO review of any newly submitted evidence. This appeal has been advanced on the Board's docket. 38 C.F.R. § 20.900(c) (2017); 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The Veteran's bladder cancer did not have its onset in active service or for many years thereafter, and is not related to such service, to include exposure to herbicides. CONCLUSION OF LAW The criteria for service connection for bladder cancer are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2016); see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). In July 2017, the Board remanded the claim for bladder cancer, affording the Veteran an opportunity for a new VA examination. In August 2017, the Veteran cancelled his newly scheduled August 2017 VA examination for bladder cancer because he could not make the appointment. When asked about rescheduling his appointment, the Veteran said to cancel the VA examination request. The Board emphasizes that the duty to assist and provide the Veteran with a VA examination is a two-way street, and due to his failure attend the scheduled VA examination or provide a date for which he is able to attend to schedule VA examination, there is no further duty to provide any more VA examinations relating to this claim. See Wood v. Derwinski, 1 Vet. App. 190, 193. The Board also notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military 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 establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed condition, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Additionally, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and a malignant tumor becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred 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, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Moreover, absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all Veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6). Furthermore, if a Veteran was exposed to an herbicide during such service, bladder cancer shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even if 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. 38 C.F.R. § 3.309(e). In this case, the Veteran asserts that he developed bladder cancer due to herbicide exposure during active service. The Veteran's service personnel records show that he served in the Republic of Vietnam during the Vietnam era. Therefore, exposure to herbicides is presumed. 38 C.F.R. § 3.307(a)(6)(iii). However, bladder cancer is not recognized by VA as being associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e). Therefore, service connection for bladder cancer is not warranted on a presumptive basis. Notwithstanding the presumptive provisions, service connection may be established by showing that a disorder resulting in disability is, in fact, causally linked to exposure to herbicides. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran's service treatment records do not show any complaints, findings, or diagnoses of bladder cancer, or any genitourinary problems found to be indicative of bladder cancer. The Veteran's entrance and separation examinations are silent for any bladder related medical issues. The Veteran was diagnosed with bladder cancer in February 2011, more than 40 years after discharge from active service. The Veteran's bladder cancer did not manifest to a degree of 10 percent within one year of separation from service, and therefore the Veteran is not entitled to service connection on a presumptive basis as a chronic disease. 38 C.F.R. § 3.309(a). Additionally, while not dispositive, the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board notes there is no competent, favorable medical opinion etiologically relating the bladder cancer to active service. As noted above, the Veteran declined a VA examination, the results from which could potentially have supported his claim. Given the above, the Board finds that the Veteran's bladder cancer did not have its onset during active service or for many years thereafter, and is not related to such service, to include exposure to herbicides. The Veteran was not diagnosed with bladder cancer until many years after discharge from active service. The Veteran's record is negative for any positive medical nexus opinion, relating the Veteran's bladder cancer to active service. Accordingly, service connection for bladder cancer is not warranted. The Board acknowledges the Veteran's lay contentions of an etiological relationship between the bladder cancer and his active service. Regarding lay evidence, the Veteran is competent to describe symptoms but does not have the training or credentials to provide a competent opinion as to the etiology of bladder cancer. While the Veteran is competent to note certain genitourinary symptoms, such as voiding dysfunction, he is not competent to attribute those to a chronic disability, let alone a malignant tumor like bladder cancer. See Jandreau v. Nicholson, supra. Accordingly, his lay opinion lacks probative value and is not sufficient to grant service connection. In conclusion, service connection for bladder cancer is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for bladder cancer, to include as due to herbicide exposure is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs