Citation Nr: 18151662 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 16-41 322 DATE: November 19, 2018 ORDER Service connection for bladder cancer, including as due to in service herbicide exposure, is denied. Service connection for kidney cancer, including as due to in service herbicide exposure, is denied. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam and is presumed to have been exposed to herbicides coincident with his service. 2. There is a balance of evidence on the question of whether the Veteran’s bladder cancer with metastasis to the kidney is due to chemical exposure in service. CONCLUSIONS OF LAW 1. The criteria for service connection for bladder cancer have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for kidney cancer have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board recognizes the Veteran’s claim for service connection for bladder cancer as within the Board’s jurisdiction despite the lack of filing of a VA Form 9. Service connection for bladder cancel was denied by way of a July 2016 rating decision. The Veteran filed a notice of disagreement in August 2016, after which the RO issued a statement of the case in October 2016. In November 2016, the Veteran filed a narrative statement explaining his basis for feeling service connection is warranted. The Board finds this to be an adequate statement in lieu of a VA Form 9 and accepts this communication as a substantive appeal. 38 C.F.R. § 20.202 (2017). Notwithstanding the lack of certification of the appeal of the bladder cancer issue, this issue is within the jurisdiction of the Board as the Veteran timely perfected his appeal with his substantive appeal. 38 C.F.R. § 19.35 (2017); also see Evans v. Shinseki, 25 Vet. App. 7, 12 (2011) (certification is used for administrative purposes and does not serve to either confer or deprive the Board of jurisdiction over an issue). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain disabilities, including malignant tumors, are presumed to be serviced connected if manifested to a compensable degree within one year following service. 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). The Board notes the Veteran served in Vietnam during the Vietnam Era and VA, therefore, has recognized he is presumed to have been exposed to herbicide agents, including Agent Orange, during service. 38 U.S.C. § 1116; 38 C.F.R. 3,307, 3.309(e). Because he was exposed to an herbicide agent during service, certain diseases are presumed to have been incurred in service, if manifest to a compensable degree within specified periods, even if there is no record of such disease during service. Bladder and kidney cancer are not disabilities that fall under one of the presumptive categories. Id. However, the unavailability of presumptive service connection for a disability based on exposure to herbicide agents does not preclude a veteran from establishing service connection with proof of direct causation, to include via such exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As there is considerable overlap in the applicable evidence for the Veteran’s claims for entitlement to service connection for bladder and kidney cancer, the Board will discuss the two claims together. First, the Board recognized the presence of the disabilities claimed. In May 2016, a VA examiner reviewed the Veteran’s file and recognized his diagnosis of transitional cell carcinoma (TCC) of the bladder and noted this has metastasized to the kidney. This is also shown in the private and VA treatment records that are within the claims file. The private records show the symptoms of the cancer began in approximately July 2014. The question remains whether the bladder and kidney cancers are shown to be causally connected to the recognized in service exposure to herbicides. A January 2016 private physician report includes a summary of the Veteran’s health history, including a notation that he has no smoking history. The physician, a urologist, noted that the Veteran’s bladder cancer involved the upper tract and has also been deemed upper tract TCC. According to this physician, TCC is associated with benzoin and aromatic carbons, which are involved in the composition of Agent Orange, and that Agent Orange increased the Veteran’s risk of transitional cell carcinoma. The physician then noted the lack of any other risk factors for TCC in the Veteran, other than the Agent Orange exposure, and concluded that the most likely etiology of the bladder cancer with involvement of the left kidney, is Agent Orange. In May 2016, a VA examiner reviewed the Veteran’s claims file and recognized the private physician’s positive nexus opinion. The examiner also noted the article titled, “Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2012,” observing bladder and kidney cancer remain outside of the list of presumptive disabilities for herbicide exposed veterans. The examiner then listed various other risk factors for bladder cancer before concluding bladder cancer, with metastasis to the kidney was not related to agent orange exposure. The same examiner submitted an addendum report in July 2016. The examiner clarified that the Veteran was not exposed to the various risk factors listed in the prior report. Notwithstanding that fact, the examiner went on to assert that the January 2016 private opinion was not supported by medical research. Again, referencing the National Academy of Sciences 2012 Update, the examiner observed that the Update did not include bladder cancer as a presumptive disease associated with Agent Orange exposure. and therefore, found the Veteran’s bladder cancer with metastasis to the kidney is not related to Agent Orange exposure. In October 2016, the Veteran submitted a statement confirming he has no family history of bladder cancer and that his only exposure to diesel fuel was during his active service, thus raising the issue of whether diesel fuel could have caused his cancers. The Veteran also referenced other Board decisions awarding service connection for similar factual scenarios. In November 2016, the private urologist who submitted the May 2016 statement, submitted another statement in support of the Veteran’s claim. This private physician noted the Veteran’s in-service exposure to Agent Orange and noted his exposure to diesel fuels during his Vietnam tour. The physician indicated that Agent Orange and diesel fuels have both been found as causative agents of bladder cancer, referencing research by the National Institute of Health and “Dr. Lamm, a well known expert in the field of Bladder Cancer.” Because of this research, coupled with the Veteran’s lack of a history of any of the known contributors to bladder cancer, the private physician found a causal connection to exist between the Veteran’s bladder cancer and his Agent Orange and diesel fuel exposure. Also in November 2016, a blog article from a disability attorney website was submitted. This article suggests a potential for a change in the law related to bladder cancer and Agent Orange exposure may come in the future. In sum, private physicians have indicated a causal connection between the Veteran’s cancers and his active service, and a VA examiner, to the contrary, has found not such causal connection to not exist. These divergent conclusions both appear to be supported by medical research and a consideration of the Veteran’s personal history. On this record, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s bladder cancer with metastasis to the kidney were caused by in-service chemical exposures. Resolving reasonable doubt in the Veteran’s favor, service connection may be granted. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Adamson, Counsel