Citation Nr: 18154030 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 12-15 557 DATE: November 29, 2018 ORDER Entitlement to service connection for bladder cancer is denied. Entitlement to service connection for diabetes mellitus, including as due to exposure to herbicide agents or as a chronic disease, is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, however diagnosed, is remanded. FINDINGS OF FACT 1. There is no competent evidence in the record that demonstrates the Veteran’s currently diagnosed bladder cancer was manifest during service or that there is a nexus between the current bladder cancer and the Veteran’s active duty service. 2. There is no competent evidence in the record that demonstrates Veteran's currently diagnosed diabetes mellitus was manifest during service or within one year after separation from service and there is no evidence of a nexus between the current diabetes mellitus and the Veteran’s active service. 3. The Veteran did not serve in Vietnam between January 9, 1962 and May 7, 1975. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for bladder cancer are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309(f). 2. The criteria for entitlement to service connection for diabetes mellitus, have not been met. 38 U.S.C. §§ 1101, 1131, 1116 (2012); 38 C.F.R. § 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1955 to July 1958. This matter is before the Board of Veterans’ Appeals (Board) on appeal of September 2010 and October 2014 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). A hearing was held before the undersigned in May 2014. Board decisions of July 2014 and May 2018 remanded the claims for additional development. The issues are now returned to the Board for continued appellate review. In this case, the Veteran’s service records are considered fire-related. As such, there is a heightened obligation to assist the Veteran in the development of the case, to explain findings and conclusions, and to consider carefully the benefit of the doubt rule in cases. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); see also Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). However, the legal standard for proving a claim for service connection is not lowered. Rather, it increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). The Board’s May 2018 decision observed that medical records related to the Veteran’s claims for service connection for bladder cancer and diabetes mellitus appeared to be outstanding. The claims were remanded so that additional evidence could be associated with the file. The Veteran was contacted by letter of May 2018 and asked to identify and authorize the release of additional records. The Veteran’s representative responded by letter of June 2018 that the Veteran would not submit any additional evidence. No additional development is warranted. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. The evidence must show (1) the existence of a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The third element, a causal relationship or nexus between the current disability and the in-service event, may be established by direct evidence or by a presumption. Presumptions are afforded to specific diseases, including diabetes mellitus, based on exposure to herbicide agents in Vietnam. A Veteran who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed to herbicide agents. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Similarly, diabetes mellitus, a chronic disease, is presumptively linked to service if manifest to a degree of 10 percent or more within one year after separation from service. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.307(a)(3). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). 1. Entitlement to service connection for bladder cancer Medical records from Dr. K. of the Urology Center of Englewood document the Veteran was treated for bladder cancer in 2012. A current disability is established. However, the second and third elements of service connection, an in-service event and a nexus, are not demonstrated. In this case, the Veteran’s service records are unavailable and attempts (described above) to obtain additional evidence were unsuccessful. The Veteran has not asserted at any time that he suffered from a bladder condition, disease, or injury during his active service. In addition, there is no medical evidence of any link between the current bladder cancer and the Veteran’s service. In the absence of any evidence of an in-service occurrence and a causal relationship, the benefit of the doubt doctrine is not applicable. The Veteran’s claim for service connection for bladder cancer must be denied. See Gilbert, supra. 2. Entitlement to service connection for diabetes mellitus, including as due to exposure to herbicide agents The Veteran’s VA medical records note a diagnosis and treatment for diabetes. A current disability is established. However, the second and third elements of service connection, an in-service event and a nexus, are not demonstrated. As noted above, the Veteran’s service records are unavailable and efforts to obtain additional evidence were unsuccessful. The Veteran has not asserted at any time that he suffered from diabetes mellitus or had any indicators of the condition during his active service. There is no medical evidence of any link between the current diabetes mellitus and his service. In the absence of any evidence of an in-service occurrence and a causal relationship, the benefit of the doubt doctrine is not applicable. The Veteran’s claim for direct service connection for diabetes mellitus must be denied. See Gilbert, supra. In this case, presumptions allowing diabetes mellitus to be linked to service are not indicated. The Veteran claims he served as a paratrooper performing covert missions in Vietnam between 1956 and 1958. As this claimed service is prior to January 1962, the presumption related to herbicide exposure is not applicable. Further, there is no evidence that the Veteran developed diabetes mellitus within one year of separation from service. Service connection for diabetes mellitus, on a presumptive basis, is not warranted. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(3), 3.309(e). REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, however diagnosed is remanded. A remand by the Board confers on a Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. If the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board’s May 2018 remand required a new VA psychiatric examination be provided. VA medical records indicate the Veteran did not attend a July 2018 examination. However, there is no indication that the Veteran was ever notified about the examination. Although it appears the Veteran suffers from dementia, his representative’s letters of March 2018 and May 2018 request an additional VA psychiatric examination. There is no indication that the Veteran did not attend the examination due to his current medical condition. Finally, excerpts from a book, “Message to Our Folks, The Art Ensemble of Chicago,” were submitted with the representative’s March 2018 letter. The excepts provide additional information about the Veteran’s claimed combat service in Vietnam. The Veteran is identified as a “Pathfinder” who served as a paratrooper in the 11th Airborne Division participating in “secret operations during the early stages of the Vietnam War.” The book further asserts that following his participation in covert Vietnam missions, the Veteran was stationed in Augsburg, Germany and assigned to the 11th Airborne Band. In light of this information, further attempts to verify the Veteran’s claimed assignments and stressor are required. The matter is REMANDED for the following action: 1. Contact the Veteran and his representative to determine whether the Veteran is able to participate in a VA mental health examination. If he is able, schedule the Veteran for a VA examination to determine the etiology of all psychiatric disorders diagnosed since February 2010. All indicated tests and studies should be conducted. The claims file and this remand must be reviewed by the examiner; consideration of such should be reflected in the completed examination report or in an addendum. If the Veteran is unable to participate in an examination due to his current medical condition, the examiner must provide his/her opinions based on a complete review of the evidence of record. (a) If a diagnosis of PTSD is warranted, indicate whether the claimed in-service stressor is related to the Veteran's fear of hostile military or terrorist activity. (b) The examiner must discuss whether it is at least as likely as not (50 percent or more probability) that any psychiatric disorder diagnosed since February 2010, including depression, was caused or aggravated by one or more of the Veteran's reported in-service stressors or by any other aspect of his qualifying active service. (c) For any acquired psychiatric disorder found to be service-related, state whether it is at least as likely as not (50 percent or greater probability) that such a disorder caused or aggravated any current substance abuse disorder. In reaching his or her conclusions, the examiner must specifically consider: (1) the Veteran's medical record which contain his description of his stressors; (2) the Veteran's May 2014 stressor statement; and (3) the opinion from the Veteran's private physician (Dr. K. L. opinion dated May 15, 2014) diagnosing PTSD and opining that the Veteran's current PTSD symptoms are more likely than not related to his in-service experiences. The examiner must provide reasons for each opinion. (Continued on the next page)   2. If the Veteran is diagnosed with PTSD based on the described stressor, then the AOJ should attempt to verify the Veteran’s stressor based on additional information provided with the representative’s March 2018 letter and excerpts from “Message to Our Folks, The Art Ensemble of Chicago.” Attempt to verify the assignment of an 11th Airborne Band in Augsburg, Germany and any records of paratrooper operations performed by the 11th Airborne Division in Vietnam between 1955 and 1958. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jeanne Celtnieks, Associate Counsel