Citation Nr: 18144286 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 16-05 970 DATE: October 25, 2018 ORDER Entitlement to service connection for bladder cancer, to include as due to herbicide exposure, is denied. 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, to include as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from April 1968 to April 1971. He served in the Republic of Vietnam and is a Purple Heart Medal recipient. 1. Entitlement to service connection for bladder cancer, to include as due to herbicide exposure A. Applicable Laws and Regulations 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 the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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). B. Service connection claim 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. See 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 August 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; 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 exists no competent, favorable medical opinion etiologically relating the bladder cancer to active service. 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. The Board finds no basis for remanding this case for a medical opinion as to the etiology of bladder cancer; given the dearth of supportive evidence of record, there exists no reasonable possibility that such opinion would result in findings favorable to the Veteran. 38 C.F.R. § 3.159(c)(4). 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. There is no competent opinion linking bladder cancer to service, to include herbicide agent exposure. In conclusion, the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Evan Thomas Hicks