Citation Nr: 20008528 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 17-46 796 DATE: January 31, 2020 REMANDED Entitlement to service connection for bladder cancer is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1967 to February 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In December 2019, the Veteran testified in a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been prepared and associated with the Veteran’s claims file. The Veteran contends that his diagnosed disability of bladder cancer is related to his military service, more specifically, as a result of his exposure to herbicides including Agent Orange. Due to the nature of the arguments asserted by the Veteran, the Board has addressed them herein in order to narrow the scope of the remand directives and provide the Veteran with an efficient adjudication of his claim. The Board sincerely regrets any further delay in the adjudication of this claim, however, as explained below, a remand of this matter is necessary. The Veteran has been diagnosed with malignant neoplasms of the bladder, otherwise referred to as bladder cancer. See March 2016, Private Surgical Report (received December 2019). The Veteran also, however, asserts that a question is raised regarding whether the bladder is the primary site of the cancer and contends that the prostate, which his representative proffers, was removed during the cystectomy performed on the bladder, and was the primary site. See December 2019, Hearing Transcript. There are, however, no medical opinions or demonstrative reliable evidence in support of this proposition, and the Veteran himself is not qualified to assess the etiology of his diagnosed bladder cancer. This alternative theory, therefore, is not addressed any further in relation to the current claim as the record is devoid of any supporting reliable evidence upon which this argument is made. Indeed, all the competent medical evidence refers to the diagnosis as one for bladder cancer, not prostate cancer, including the records submitted subsequent to the Veteran’s hearing before the Board during which this theory was first suggested by the Veteran’s representative. See March 2016, Private Surgical Report (received December 2019); December 2019, Hearing Transcript. The surgical report referenced by the Veteran’s representative during the hearing, does not make any findings of prostate cancer. See March 2016, Private Surgical Report (received December 2019). Rather, that report unambiguously stated that the post-operative diagnosis, which was rendered after the completion of routine pathologies of both the bladder and prostate, was in fact malignant neoplasm of the bladder. Id. Therefore, the issue on remand is limited to the claim as one for service connection for bladder cancer due to exposure to herbicides, including Agent Orange. While the Board is aware that the Veteran’s diagnosis of bladder cancer is not on the presumptive list of diseases based on herbicide exposure, the mere fact that a condition is not presumed by the VA to have been caused by herbicide exposure is not, in and of itself, a sufficient basis to deny service connection for the condition. See Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009) (holding that “to permit the denial of service connection for a disease on the basis that it is not likely there is any nexus to service solely because the statistical analysis does not support presumptive service connection, would, in effect, permit the denial of direct service connection simply because there is no presumptive service connection”); see also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (observing that the “availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange”). On remand, after the further development outlined below, service connection on a direct basis shall be considered in light of the following findings. As to the first element for direct service connection consideration, the first element is established based upon the Veteran’s diagnosis as reflected in his medical records. 38 U.S.C. §§ 1131, 5107(b); Shedden, 557 381 F.3d at 1163; 38 C.F.R. § 3.303(a). As exposure to an herbicide agent has been conceded, the second element of direct service connection is also met. See Shedden, 381 F.3d at 1167. Service connection then turns upon whether there is evidence of a nexus between the claimed in-service disease or injury and the present disability. Id. The Veteran argues that the nexus opinion provided by the private physician (J.R.B., D.O.) should be considered probative, given the medical text information from the Institute of Medicine. See June 2013, Private Medical Statement (by J.R.B., D.O.); December 2019, Hearing Transcript. In referencing the recent case of McCray v. Wilkie, the Veteran posits that the VA failed to take into consideration the recent study completed by the Institute of Medicine (IOM) in which, as is proffered by the Veteran, an argument is made for the correlation between bladder cancer and an exposure to Agent Orange. Id.; see also McCray v. Wilkie, 31 Vet. App. 243, 249 (2019). First, it is imperative to note that the text of that study has not been provided and is not a matter of record before the Board, nor was it a matter of record before the AOJ in the initial adjudication of this claim. See December 2019, Hearing Transcript. However, during the hearing before the Board, it was presented by the Veteran’s representative that the specifics of this medical text information had already been provided for consideration. Id. An exhaustive review of the Veteran’s claims file does not reflect that such is the case. The VA Form 9 filed in connection with this claim asserts that the IOM update in relation to Agent Orange specifies that exposure may show “limited or suggestive evidence,” but does not provide anything further and is the only other reference made to this medical text information. See September 2017, VA Form 9. That notwithstanding, the Board takes notice of the National Academy of Medicine’s “Veterans and Agent Orange: Update 11 (2018),” which states there is “limited or suggestive evidence of an association” between exposure to herbicides and cancer of the urinary bladder.” See Nat’l Acad. of Sci., Eng., and Med., Veterans & Agent Orange: Update 11 (2018) at 7 (November 15, 2018). That 2018 National Academy of Medicine report explained that “limited or suggestive evidence of an association” means epidemiologic evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence. Id. Nevertheless, this information is not dispositive of the Veteran’s claim as it lacks specificity to the facts of the Veteran’s case and does not establish a link between the Veteran’s specific exposure and current disability. Turning to the Veteran’s contentions concerning the case of McCray v. Wilkie, it is argued that the holding of that case compels a finding that the RO’s adjudication of the claim cannot be reconciled with the acknowledgement of the medical text outlined above. See December 2019, Hearing Transcript (pg. 4, arguing that the VA examiner does not provide a medical rationale based off of the IOM, and therefore it lacks any probative value); see also McCray, 31 Vet. App. At 249. Herein lies the issue with the Veteran’s current claim. The Court in McCray explained that a medical text’s qualifying or contradictory opinions may affect the probative value of any medical opinion that relies upon the text—whether agreeing with the medical text and using it as supportive or distinguishing from it. See McCray, 31 Vet. App. At 249. It is therefore, as further explained by the Court, incumbent upon the Board to assess whether the qualifying medical text affects the probative value of other medical opinions of record. Id. In this case, the private medical opinion of record is wholly inadequate in determining the Veteran’s claim as it speaks in vague and unqualifying language considering the origins of the Veteran’s bladder cancer. The opinion is provided in a June 2013 letter from the Veteran’s treating urologist (J.R.B., D.O.), along with pertinent treatment records, and states that “Agent Orange might be considered as a possible etiology for his [the Veteran’s] cancer.” See June 2013 Private Medical Records (received July 10, 2013). Such non-definitive language along with the limited rationale that the Veteran has never been a smoker or had a family history of bladder cancer amounts to mere speculation upon which the Board cannot rely in rendering an opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (“[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.”). The medical opinion of record does not contain a clear conclusion, supporting data, or a reasoned medical explanation. Id. It does, however, meet the much lower threshold of establishing an indication that the current disability may be associated with an in-service event, triggering the VA’s duty to afford the Veteran a medical examination, which has not yet occurred. See McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006). Under McLendon, the VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Id. at 83 (citing 38 U.S.C. § 5103A and C.F.R. § 3.159(c)(4)). Here, the Veteran is entitled to a VA examination and opinion to determine whether the Veteran’s bladder cancer is related to his service. The opinion should explain why any statistical or medical studies, including those discussed herein, are found to be persuasive or unpersuasive, and should address whether there are other risk factors that might be the cause of the Veteran’s claimed condition or whether the claimed condition manifested in an unusual manner. Accordingly, this matter is remanded for the following action: 1. Afford the Veteran the opportunity to identify the providers of any evaluations and/or treatment he has received for his claimed disability and to provide authorizations for VA to obtain records of any such private treatment. Obtain for the record the clinical records of all pertinent evaluations and/or treatment (records of which are not already of record) from the providers identified. If a private provider does not respond to VA’s request for identified records sought, the Veteran must be notified, and reminded that ultimately it is his responsibility to ensure that private treatment records are received. 2. Advise the Veteran that he may submit a supplement medical opinion from his treating clinician (i.e., J.R.B., D.O., or any other medical professional) that addresses the primary site of his malignant tumor (i.e., bladder or prostate); and, whether the Veteran’s exposure to herbicide agents contributed in any way to cause the Veteran develop the primary malignant tumor at the site so identified. If a medical opinion is provided to supplement the June 2013 medical statement prepared by J.R.B., D.O., the treating clinician also is asked to respond to the questions set forth the paragraph (3) below. 3. Schedule a VA examination for the Veteran by an appropriate clinician to determine the nature and cause of the malignant tumor/cancer, which the Veteran now has, to include bladder cancer. The claims file is to be made available to and reviewed by the clinician in conjunction with the examination. All indicated tests must be done, and all findings reported in detail. Based on a review of the record and examination, the clinician is asked to respond to the following questions: a. Is the bladder the primary site of the Veteran’s malignant tumor/cancer? Please explain why that is or is not so. b. Is the prostate the primary site of the Veteran’s malignant tumor/cancer? Please explain why that is or is not so. c. Please identify the likely cause for the Veteran’s bladder cancer. Specifically, is it at least as likely as not (50 percent or greater probability) that the Veteran’s bladder cancer began in (or is otherwise related to) his military service, to include exposure to herbicide agents. Please explain why this is or is not so. ****In responding to questions (c), the clinician is asked to consider and discuss the scientific and statistical data from the National Academy of Science (NAS) that pertain to bladder cancer and exposure to herbicide agents, and then address whether is a medically sound basis to attribute in any way the diagnosis of bladder cancer to the Veteran’s in-service exposure to herbicide agents. ****Please Note: The Board is cognizant that there is no presumption of service connection for bladder cancer due to exposure to herbicide agents. The question here is what is the likelihood that this Veteran’s bladder cancer is causally related to his exposure to herbicide agents, given his medical history, family history, and the absence or presence of other risk factors, etc. d. Is it at least as likely as not (50 percent or greater likelihood) that the Veteran’s bladder cancer began in service (or is otherwise related to) his military service, to include exposure to environmental elements/hazards associated with his Military Occupational Specialty (MOS) as a heavy equipment operator engineer? Please explain why that is or is not so. ****If the Veteran’s bladder cancer is deemed to be unrelated to his period of service, the clinician should, if possible, identify the cause considered more likely and explain why that is so. All opinions must be supported by a clear rationale, and a discussion of the facts and medical principles involved is required. 4. After the above actions have been completed, and the Veteran has been given adequate time to respond, readjudicate the claim. If the claim remains denied, issue to the Veteran a supplemental statement of the case and afford the appropriate period within which to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Sutherell, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.