Citation Nr: 18141673 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 16-21 781 DATE: October 11, 2018 REMANDED Service connection for bladder cancer for accrued benefits purposes is remanded. Service connection for prostate cancer for accrued benefits purposes is remanded Service connection for hearing loss for accrued benefits purposes is remanded. Service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1970 to December 1971. The appellant is his surviving spouse. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).   1. The claims for service connection for bladder cancer, prostate cancer, and hearing loss for accrued benefits purposes are remanded. The appellant should be provided an opportunity to be substituted as the claimant with respect to the accrued benefits claims. See 38 C.F.R. § 3.1010 (2017). In this regard, a claim for accrued benefits, survivors pension, or dependency and indemnity compensation by an eligible person, as listed in 38 C.F.R. § 3.1000(a)(1) through (5), is deemed to include a request to substitute if a claim for periodic monetary benefits (other than insurance and servicemembers’ indemnity) under VA law, or an appeal of a decision with respect to such a claim, was pending before the agency of original jurisdiction or the Board when the claimant died. 38 C.F.R. § 3.1010(c)(2) (2017). A claimant may waive the right to substitute in writing over the claimant’s signature. Id.; Reliford v. McDonald (27 Vet. App. 297, 304 (2015) (holding that it was improper to treat the appellant as a substitute claimant without providing her the opportunity to waive substitution). The record does not reflect that an initial substitution eligibility determination has been made for the appellant. That determination must be made by the agency of original jurisdiction in the first instance. 38 C.F.R. § 3.1010(e). If she is found eligible for substitution, she must be provided an opportunity to waive this right. 2. Service connection for the cause of the Veteran's death is remanded. A new VA medical opinion must be obtained. The issue is whether the Veteran’s bladder cancer (metastatic transitional cell carcinoma), which was the immediate cause of death according to the Death Certificate, may be linked to his presumed exposure to an herbicide agent (i.e. Agent Orange) as a Vietnam Veteran. In the September 2015 opinion, the examiner found that based on current evidence, it was impossible to conclude that a link existed between Agent Orange exposure and bladder cancer, noting that there is insufficient evidence to determine whether there is such an association. The September 2015 opinion does not account for evidence supporting a possible association. Specifically, as shown in an article submitted by the appellant, the National Academy of Sciences Institute of Medicine (IOM) has found limited or suggestive evidence of such an association in its Veterans and Agent Orange: Update 2014. This is also reflected on VA’s official website. See https://www.publichealth.va.gov/exposures/publications/agent-orange/agent-orange-summer-2017/reports.asp. Moreover, another article submitted by the appellant notes that the Veteran’s diagnosed transitional cell carcinoma of the bladder, also known as urothelial cell carcinoma, is known to arise from environmental carcinogenic influences. The article states that while “[b]y far the most important cause is cigarette smoking,” agrochemicals are known to predispose to urothelial cancer. Finally, the appellant has submitted a July 2016 opinion from a private doctor, L. Cuervo, M.D., stating that there is reason to suspect that Agent Orange exposure may be associated with bladder cancer. Dr. Cuervo noted that while there have not been adequate studies to properly evaluate such an association, one of the chemicals used in Agent Orange (2,4 dichlorophenoxyacetic acid) is primarily excreted through the urine, according to the National Pesticide Information Center, and thus would be in direct contact with the bladder. An October 2013 opinion by Dr. Cuervo also notes a “possible but not definitive link between bladder cancer and dioxin exposure.” In sum, the September 2015 VA opinion, in finding that it was impossible to conclude that there is an association between bladder cancer and Agent Orange exposure, does not account for the IOM conclusion of limited or suggestive evidence of an association, and the other evidence supporting a possible association, as discussed above. Thus, it is not sufficient to make an informed decision. While there must be more than a mere possibility that the Veteran’s bladder cancer was linked to Agent Orange exposure, the evidence need only be sufficient to satisfy the “benefit-of-the-doubt” evidentiary standard. Wise v. Shinseki, 26 Vet. App. 517, 531-32 (2014); 38 C.F.R. § 3.102 (2017). The standard is generally considered satisfied when the evidence supports at least a 50% probability of such a link. The Board finds that the record, including the opinions and treatise evidence submitted by the appellant, is not sufficient to make an informed decision under that standard. The matters are REMANDED for the following action: 1. Make an initial substitution eligibility determination for the appellant with respect to the accrued benefits claims, and provide her written notice of that decision. If she is found eligible, she must also be provided an opportunity to waive substitution. 2. Obtain a new VA medical opinion regarding the cause of death claim, as specified below. The examiner should provide an opinion as to whether it is at least as likely as not (50% probability or more) that the Veteran’s bladder cancer is linked to Agent Orange exposure from service in Vietnam. In rendering the opinion, the examiner must account for the fact that the National Academy of Sciences Institute of Medicine recently found limited or suggestive evidence of such an association (Veterans and Agent Orange: Update 2014; https://www.publichealth.va.gov/exposures/publications/agent-orange/agent-orange-summer-2017/reports.asp). The examiner should also consider the Wikipedia article submitted by the appellant, which states, in part, that agrochemicals are known to predispose to urothelial cancer. A complete explanation must be provided in support of the conclusion reached. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Rutkin, Counsel