Citation Nr: 18150249 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 15-00 298A DATE: November 14, 2018 ORDER Service connection for carcinoma of the bladder is granted. FINDING OF FACT The Veteran’s carcinoma of bladder is related by competent medical evidence to presumed exposure to herbicide agents in service. CONCLUSION OF LAW The criteria for entitlement to service connection for carcinoma of the bladder have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1967 to March 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision. The Board notes that the agency of original jurisdiction (AOJ) denied the Veteran’s claim for service connection for carcinoma of the bladder in a September 2009 rating decision. The Veteran then submitted additional new and material evidence and the AOJ issued another rating decision in July 2010 considering this evidence. After that rating decision, the Veteran submitted new and material evidence and the AOJ issued the May 2011 rating decision that was appealed with a November 2011 notice of disagreement. Entitlement to service connection for carcinoma of the bladder. The Veteran asserts that his bladder cancer is due to herbicide exposure in service. The Veteran served in Vietnam and is therefore presumed to have been exposed to herbicide agents during such service. 38 C.F.R. § 3.307(a)(6)(iii). Certain diseases associated with exposure to herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Bladder cancer, however, is not one of these diseases. Therefore, service connection on a presumptive basis is not for consideration. A claimant may nevertheless establish service connection based on herbicide exposure with proof of actual 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 an herbicide agent does not preclude direct service connection for other conditions based on exposure to an herbicide agent); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, if there is no presumptive service connection available, as is the case here, direct service connection can be established if the record contains competent medical evidence of a current disease process with a relationship to exposure to an herbicide agent while in military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Combee at 1043-44. Shortly after the Veteran filed his claim, he submitted an August 2009 statement from Dr. DHG, his urologist, that provided an opinion that the Veteran’s bladder cancer was at least as likely as not due to his herbicide exposure in Vietnam. Dr. DHG explained that the Veteran did not have a family history of bladder cancer, therefore the cause of his cancer was likely environmental. Dr. DHG further indicated that the usual environmental causes for bladder cancer are smoking and occupational exposure to chemicals, neither of which was applicable to the Veteran. Dr. DHG concluded that, in the case of the Veteran, the only obvious environmental exposure was to herbicide agents in Vietnam. Dr. DHG finished his statement by indicating that he had discussed this matter with his urologist partners, who had agreed that this was a reasonable assumption. In April 2010, the Veteran submitted copies of scientific and medical literature that appears to show a relationship between herbicide exposure and bladder cancer. See April 2010 correspondence; see also April 2010 statement from the Veteran; June 2010 correspondence. Then, in October 2010, the Veteran submitted a new statement (dated August 2010) from Dr. DHG. In it, Dr. DHG described the submitted literature as “very persuasive from respected medical journals/National Institute of Health.” Further, Dr. DHG reiterated his opinion that the herbicide exposure is more likely than not the cause of the Veteran’s bladder cancer. The Veteran underwent a VA examination in December 2013. Regarding the nexus question, the VA examiner opined that the Veteran’s bladder cancer is less likely than not related to herbicide exposure. This conclusion was based on the following findings. First, that according to the Institute of Medicine there is inadequate and insufficient evidence to determine if there is a nexus between bladder cancer and herbicide exposure. Second, that bladder cancer is actually very common and that it is the most frequently diagnosed cancer of the urinary tract other than prostate cancer. Third and last, that the Veteran’s risk factors for the development of bladder cancer were his age, race, and gender. The December 2013 VA opinion does not show adequate consideration of the favorable evidence submitted by the Veteran, particularly the opinions from Dr. DHG and the scientific and medical literature. As such, it has a diminished probative value, especially when compared with the opinions of Dr. DHG. Dr. DHG’s opinion shows consideration of the Veteran’s family and personal medical history as well as the scientific and medical literature submitted by the Veteran. Further, Dr. DHG has indicated that he discussed the matter with other urologists and that they endorsed his conclusion. While the December 2013 VA examiner is a physician’s assistant, Dr. DHG is the Veteran’s urologist and, as such, has specialized training in matters concerning the bladder. As such, he is deemed to possess a more profound understanding of the matter at hand. For these reasons, the Board places much weight on these two pieces of competent medical evidence from Dr. DHG. Based on the facts of this case, particularly the competent favorable evidence submitted by the Veteran, the Board finds that the Veteran’s bladder cancer is at least as likely as not related to his conceded exposure to herbicide agents. By no means is the Board finding that bladder cancer is a disease associated with herbicide exposure for purposes of presumptive service connection. Rather, the Board is finding that the Veteran has submitted sufficient evidence to establish that, in his specific case, it is at least as not that such a causal relationship exists. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. López, Associate Counsel