Citation Nr: 1806852	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  14-08 662	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bladder cancer and residuals thereof, to include as secondary to exposure to herbicide agents. 

2.  Entitlement to service connection for bladder cancer and residuals thereof, to include as secondary to exposure to herbicide agents. 


REPRESENTATION

Appellant represented by:	Matthew D. Hill, Attorney-at-Law


ATTORNEY FOR THE BOARD

A. Yaffe, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1967 to February 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2007 and October 2010 rating decisions of the Department of Veterans Affairs (VA) in St. Petersburg, Florida. 

The Veteran requested a Board videoconference hearing in connection with his claim on appeal.  A hearing was scheduled for July 2017; however, the Veteran withdrew his hearing request, and his representative submitted written argument in lieu of the hearing in November 2017. 

Lastly, the Veteran waived RO jurisdiction for any additional evidence submitted after the issuance of the statement of the case (SOC). 


FINDINGS OF FACT

1.  An unappealed claim of service connection for bladder cancer was denied by the RO in a January 2007 rating decision. 

2.  The evidence received since the final January 2007 rating decision is new and relates to an unestablished fact necessary to substantiate the claim for service connection for bladder cancer. 

3.  The Veteran's bladder cancer and current residuals thereof relate to in-service exposure to herbicide agents.


      (CONTINUES ON NEXT PAGE) 




CONCLUSIONS OF LAW

1.  The January 2007 rating decision denying service connection for bladder cancer is final.  38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.302, 20.1103 (2017). 

2.  The evidence received since the final January 2007 rating decision is new and material, and the claim for service connection for bladder cancer is reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 

3.  The criteria for service connection for bladder cancer have been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

In light of the favorable action taken herein, the Board finds that further discussion of the Veterans Claims Assistance Act of 2000 (VCAA) is not required at this time.

New and Material Evidence - Analysis

In a January 2007 rating decision, the RO considered and denied the Veteran's original claim for service connection for bladder cancer.  The RO notified the Veteran of the decision later that month, finding that although bladder cancer had been diagnosed and his exposure to herbicide agents was conceded, it was not a type of cancer that was recognized by VA for the herbicide exposure presumption and the evidence of record did not suggest a nexus between his service and his current diagnosis.  The Veteran did not initiate an appeal within the one year appeal period.  Therefore, the January 2007 decision is final.  38 U.S.C. § 7105 (d)(3) (2012); 38 C.F.R. §§ 3.156, 3.160(d), 20.200, 20.302, 20.1103 (2017). 

Thereafter, the Veteran sought to reopen his claim for service connection for bladder cancer in March 2010.  The RO continued its denial of his claim in the October 2010 rating decision on appeal here, finding no new and material evidence sufficient to reopen the claim, and this appeal ensued.

However, regardless of the RO's findings with regards to new and material evidence, the Board must still determine de novo whether new and material evidence has been received.  Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).  The Board must preliminarily decide whether new and material evidence has been presented in a case, before addressing the merits of the claim.  Butler v. Brown, 9 Vet. App. 167, 171 (1996).  

"New" evidence is defined as existing evidence not previously submitted to agency decision makers.  "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a) (2017).  The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low."  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 

In September 2017, the Veteran submitted a medical nexus opinion linking his bladder cancer to his service and specifically to his exposure to herbicide agents. 

This evidence is both new and material to the issue at hand.  Accordingly, the Board concludes that new and material evidence has been received to reopen the Veteran's claim for service connection for bladder cancer.

Service Connection Claim - Analysis 

As indicated, the Veteran seeks service connection for bladder cancer, which he asserts is related to his exposure to herbicide agents during his confirmed service in the Republic of Vietnam from November 22, 1967, to April 28, 1969.

  

The Veteran's exposure to herbicide agents is conceded.  Indeed, he is service-connected for diabetes mellitus and ischemic heart disease as a result of such exposure. 

A veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent (i.e., Agent Orange).  38 U.S.C. § 1116 (2012); 38 C.F.R. § 3.307 (a)(6)(iii) (2017).  For purposes of application of this legal presumption, service in the Republic of Vietnam means actual service in-country in Vietnam from January 9, 1962, through May 7, 1975, and includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.  38 C.F.R. §§ 3.307 (a)(6)(iii), 3.313(a).

VA regulations provide for presumptive service connection for specific diseases associated with exposure to herbicide agents.  Those diseases that are listed at 38 C.F.R. § 3.309 (e) shall be presumptively service-connected if there are circumstances establishing herbicide agent exposure during active military service, even though there is no record of such disease during service.  Generally, the regulation applies where an enumerated disease becomes manifest to a degree of 10 percent or more at any time after service.  38 C.F.R. § 3.307 (a)(6)(ii).

However, bladder cancer is not among those diseases associated with herbicide exposure under 38 C.F.R. § 3.309(e) and § 3.307 (a)(6)(ii); thus, presumptive service connection is not warranted under the current VA regulations. 

Nevertheless, the Veteran can still be entitled to service connection on a direct basis.  Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

To establish service connection, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement).  See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); C.F.R. § 3.303(a).

The Board initially notes that the Veteran has been diagnosed with bladder cancer in March 2004.  Cystoscopies in July 2005 and March 2006 showed normal bladder, and additional normal results were noted in March and September 2008.  
Nevertheless, VA urology notes from September 2009 reveal treatment for symptoms associated with the Veteran's bladder cancer such as nocturnal urgency and frequency.  Hematuria recurred in 2011, and the Veteran's urologist diagnosed cystitis and an enlarged prostate.  In January 2013, urine cytology was positive for malignant cells, and the Veteran was diagnosed with bladder cancer recurrence, which seemed to have been in remission again by December 2013.  In February 2014, the Veteran experienced hematuria again, along with black stools, which required hospital admission for urosepsis and pneumonia.  It was noted that this illness was likely a consequence of chronic injury to the bladder epithelium from urothelial carcinoma and the treatments and procedures he underwent.  Additional medical treatment records show continuous treatment for bladder issues.  Most recently, January and July 2016 cystoscopies showed multiple superficial cysts, but no obvious tumor. 

Based on the above, the Board finds that the Veteran's bladder cancer was active at least once during the pendency of the appeal, and that many of his current bladder diagnoses are indicated to be residuals of his diagnosed bladder cancer.  Accordingly, the Board finds that the Veteran has a current disability of bladder cancer and/or residuals thereof. 

The Veteran submitted a September 2017 private medical opinion authored by M.K, M.D., PhD, a medical oncology specialist, who opined that the Veteran's bladder cancer and residuals thereof were more likely than not related to his military service and exposure to herbicide agents.  This private oncologist reviewed the claims file and relevant medical literature, and concluded that "it is both my opinion and that of the published medical literature that the epidemiology and scientific evidence indicate that it is more likely than not that AO causes urothelial carcinogenesis, and therefore, that AO caused [the Veteran's] bladder cancer."   
Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data.  See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). 

Dr. M.K. who authored the favorable opinion in this case has medical training in internal medicine and possesses specialized training in oncology.  He is currently associated with the University of Louisville - School of Medicine as an assistant professor.  Dr. M.K's opinion is factually accurate and contains sound reasoning.  It is supported by relevant evidence of the Veteran's medical history, his medical expertise in oncology, and published medical literature suggesting a relationship between exposure to herbicide agents and bladder cancer.  Based on the foregoing, and absent any competent medical evidence to the contrary, the Board finds the private oncologist opinion to be adequate and of high probative value.  

Therefore, service connection for bladder cancer and residuals thereof is warranted. 


ORDER

Entitlement to service connection for bladder cancer and residuals thereof is granted. 



____________________________________________
S. B. MAYS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs