Citation Nr: 1805582 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-25 509 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for hypertension, to include as due to in-service exposure to herbicide agents and/or diesel fuel. 2. Entitlement to service connection for bladder cancer residuals, to include as due to in-service exposure to herbicide agents and/or diesel fuel. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran and Spouse ATTORNEY FOR THE BOARD A. Hampton, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from October 1968 to October 1972, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Veteran presented sworn testimony at a hearing before the undersigned in August 2016. A transcript of the hearing is of record. REMAND The Veteran has asserted entitlement to service connection for hypertension and bladder cancer. A diagnosis of hypertension appears in the Veteran's VA outpatient records. The record also shows the Veteran had a cancerous bladder tumor removed in June 2007 and continues to be regularly monitored for a recurrence. The Veteran contends both his hypertension and bladder cancer were caused by in-service exposure to herbicide agents and/or diesel fuel. The Board notes that exposure to herbicides (to include Agent Orange) is presumed for veterans who served in the Republic of Vietnam during the Vietnam War. See 38 C.F.R. § 3.307(a)(6)(iii) (2017). Because the record shows the Veteran had such service, in-service herbicide exposure is presumed. While certain conditions are presumptively service-connected on the basis of in-service herbicide exposure, neither hypertension nor bladder cancer are among them. See 38 C.F.R. § 3.309 (e) (2017). However, service connection for a disability claimed as due to exposure to herbicide agents may be established by showing the disability was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C.A. §§ 1113(b) and 1116 (West 2015), and 38 C.F.R. § 3.303 (2017). The Board next notes that VA must provide a medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2) (West 2015); 38 C.F.R. § 3.159(c)(4)(i) (2017). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. In this case, no VA examination has been obtained to address the Veteran's contentions. Under the circumstances outlined above, the Board finds VA must provide such examinations pursuant to McLendon. Accordingly, the case is REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, afford the Veteran a VA examination to determine the nature and etiology of his hypertension. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Following the examination and a review of the relevant records and lay statements, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hypertension originated during or is otherwise etiologically related to his military service, to include his presumed in-service exposure to herbicide agents and/or diesel fuels. In providing his or her opinion, the examiner must address the Veteran's statements to the effect that he never had hypertension or high blood pressure prior to service. The examiner must also address the blood pressure reading of 138/88 contained in the May 1972 examination report in the Veteran's service medical records. The examiner must provide a rationale for any proffered opinion. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Afford the Veteran a VA examination to determine the nature and etiology of his bladder cancer. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Following the examination and a review of the relevant records and lay statements, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's bladder cancer originated during or was otherwise etiologically related to his military service, to include his presumed in-service exposure to herbicide agents and/or diesel fuels. The examiner must provide a rationale for any proffered opinion. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. Then, readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).