Citation Nr: 20009725 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 16-20 009 DATE: February 6, 2020 ORDER Entitlement to service connection for residuals of transitional cell cancer of the bladder, claimed as due to asbestos exposure or as a result of Agent Orange exposure, is denied. FINDING OF FACT The Veteran’s cancer of the bladder did not manifest in service or within one year of separation from active service, and it was not caused by or otherwise related to his active service, to include being exposed to asbestos and herbicide agents. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of transitional cell cancer of the bladder, claimed as due to asbestos exposure or as a result of Agent Orange exposure, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1116A, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1956 to August 1960 and from October 1960 to May 1977. The Veteran initially requested to appear at a Board hearing at the local Regional Office (RO) in his April 2016 Substantive Appeal to the Board (VA Form 9), but he submitted timely correspondence in September 2017 wishing to withdraw this request. The request is deemed withdrawn and the Board may proceed with adjudication. 38 C.F.R. § 20.704(d). This case was previously before the Board in February 2018, at which time the Board remanded the matter to associate outstanding VA treatment records, schedule the Veteran for a VA examination, and issue a supplemental statement of the case (SSOC) if any benefit was denied by the Agency of Original Jurisdiction (AOJ). There was substantial compliance with the Board’s February 2018 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). In October 2019, the Board stayed the issue on appeal because it was impacted by the enactment of the Blue Water Navy Veterans Act of 2019 (the Act) prior to the effective date of the Act on January 1, 2020. The Board noted in its October 2019 decision that the Act created new statutory requirements for the adjudication of certain claims based, in pertinent part, on the Veteran’s assertion of in-service exposure to an herbicide agent in the offshore waters of the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975. The stay was recently lifted, and the Act became effective on January 1, 2020. Thus, this issue has returned to its former place on the Board’s docket prior to the stay. The Veteran contends that his residuals of transitional cell cancer of the bladder was caused by his active service, to include being exposed to asbestos and Agent Orange in the Republic of Vietnam. Specifically, the Veteran has asserted in numerous statements, including in April 2013 and May 2016, that his current residuals of bladder cancer were caused by his exposure to asbestos due to his military occupational specialty (MOS) of being an electrician mate, and that he was exposed to Agent Orange while onboard the U.S.S. Coral Sea. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Furthermore, service connection can be established through application of statutory presumptions, including for certain diseases associated with exposure to herbicide agents. See 38 U.S.C. §§ 1101, 1110, 1116, 1116A; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. As noted in the February 2018 Board decision, VA has already conceded that the Veteran was exposed to herbicide agents, including Agent Orange. Likewise, as noted in the March 2016 Statement of the Case (SOC), the AOJ has also determined that the Veteran was probably exposed to asbestos in service due to his MOS as an electrician mate. Additionally, pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Transitional cell cancer of the bladder is a malignant tumor; thus, it is a chronic disease for VA purposes. See 38 C.F.R. § 3.309(a). In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In determining whether service connection is warranted for a disorder, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Numerous VA and private treatment records, including the November 2013 and December 2018 VA examination reports, show that the Veteran was diagnosed with bladder cancer in 1998, which was surgically removed. The evidence shows that he has not had a recurrence of bladder cancer since that time. These VA examination reports also show that the Veteran has carried diagnoses of residuals of transitional cell carcinoma of the bladder. Thus, the first element of service connection is met. Regarding the second and third elements of service connection, as noted above, certain diseases associated with exposure to certain herbicide agents used in support of military operations in Vietnam during the Vietnam War era will be considered to have been incurred in service and service connection will be presumed. However, this presumption applies only to disorders which the Secretary of VA determines to be the result of in-service exposure to herbicide agents, such as Agent Orange. 38 U.S.C. §§ 1116, 1116A; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Transitional cell carcinoma of the bladder, or bladder cancer in general, has not been associated with exposure to herbicide agents for the purpose of presumptive service connection and it is not among the diseases listed in 38 C.F.R. § 3.309(e). Thus, the presumption does not apply to the Veteran’s present service-connection claim. Nevertheless, the Board must also consider entitlement to service connection on alternative bases. See Combee, 34 F.3d at 1043. In this regard, the Veteran is able to substantiate a claim for service connection on a direct basis if his bladder cancer was caused by or otherwise related to his active service, to include exposure to Agent Orange and asbestos. Initially, the Board finds that the Veteran’s cancer of the bladder did not manifest in service or within one year of separation from active service. The Veteran’s service treatment records do not show complaints of or treatment for any bladder cancer symptoms. For example, his August 1956 initial service enlistment Report of Medical Examination and his March 1977 service separation Report of Medical Examination do not show any abnormal bladder symptoms or the presence of cancer. In fact, as noted above, the Veteran was not diagnosed with bladder cancer until 1998. The absence of post-service complaints, findings, diagnosis, or treatment for approximately over 21 years after service is one factor that tends to weigh against a finding of continuous symptoms for this disorder since separation from service. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Similarly, a December 2018 VA examiner determined that the Veteran’s transitional cell carcinoma and its residuals were less likely than not due to any period of the Veteran’s active duty from 1956 to 1960 and from 1960 to 1977 because the disorder lacked proximity to service. The examiner explained that the Veteran’s service treatment records argued against an undiagnosed transitional cell carcinoma because his records included repeated negative microscopic urinalysis. The examiner explained that this type of bladder cancer is typically suspect in hematuria, which was not demonstrated during the Veteran’s service period. The examiner noted that the Veteran’s transitional cell carcinoma was deemed to be superficial on discovery in 1998, and that had it occurred during his service period, or 21 years prior, it would more likely than not have been more advanced than was seen in 1998. The Board’s finding that the Veteran’s cancer of the bladder did not manifest in service or within one year of separation from active service is buttressed by the fact that the Veteran and his representative have not asserted that the Veteran developed bladder cancer in service or within one year of separation from service. Rather, they contend that the Veteran developed bladder cancer in 1998 due to his exposure to asbestos and Agent Orange while in service. As noted above, VA has conceded that the Veteran was exposed to asbestos and herbicide agents in service. Thus, the second element of service connection is met, and the remaining question to be answered is whether there is a causal relationship between the current transitional cell carcinoma of the bladder and the Veteran’s active service. The claims file includes the Veteran’s statements throughout the appeal that allege that his bladder cancer was caused by his in-service exposure to asbestos and Agent Orange. For example, he contended in his December 2014 Notice of Disagreement (NOD) that the bladder cancer was associated with asbestos exposure. Likewise, in May 2016, he also asserted that his bladder cancer was associated with Agent Orange exposure. In this regard, he submitted an Internet article from The National Academies of Sciences, Engineering, and Medicine (The National Academies) entitled Veterans and Agent Orange: Update 2014. This article showed that the committee at The National Academies changed the category of association with exposure to the herbicides sprayed in Vietnam. Specifically, bladder cancer was moved from “inadequate or insufficient” evidence of association up to “limited or suggestive” evidence of association. The Board notes that this evidence was submitted, referenced to, and analyzed by a December 2018 VA examiner in providing medical opinions regarding the causal link between the Veteran’s transitional cell cancer of the bladder and his exposure to herbicide agents in Vietnam, which the Board shall discuss below. The Board acknowledges the Veteran’s contentions that his bladder cancer was caused by his active service, and notes that he is competent to report symptoms that he perceived through his own senses. However, he is not competent to offer an opinion as to the cause of his bladder cancer and resultant residuals due to the medical complexity of the matter involved. Transitional cell cancer of the bladder requires specialized training for a determination as to diagnosis, causation, and progression, and is therefore not susceptible to lay opinions on diagnosis, causation, or aggravation. Thus, the Veteran is not competent to render an opinion or attempt to present lay assertions to establish the cause of this disorder. The claims file contains the opinions from November 2013 and December 2018 VA medical professionals who are competent on the issue of causation of medically-complicated matters. The November 2013 VA examiner determined that the Veteran’s bladder cancer was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness, i.e., exposure to asbestos. The examiner explained that according to the medical literature, papillary transitional cell cancer of the bladder has not been linked to asbestos exposure. The examiner further noted that asbestos exposure is mostly associated with respiratory disease, particularly pleural plaques and mesothelioma, due to the inhalation of asbestosis fibers and particles. However, the examiner determined that transitional cell carcinoma of the bladder has been primarily associated with cigarette smoking, as well as ingestion of other known chemical carcinogens, but not asbestos. Although the Board initially noted in its February 2018 remand that this examiner’s November 2013 opinion was not adequate because it did not contain an opinion regarding direct service connection, a thorough reading of this examiner’s opinion, which was authored and signed in December 2013, shows that the examiner provided a medical opinion regarding the direct causal relationship between the Veteran’s exposure to asbestos during his active duty and his bladder cancer after considering the clinical findings, an in-person examination, and review of the medical literature and the Veteran’s records. Thus, the Board finds this examiner’s opinion to be adequate to adjudicate the Veteran’s claim. Similarly, the December 2018 VA examiner determined that the Veteran’s transitional cell carcinoma of the bladder was less likely than not due to herbicide exposure. The examiner noted that he had reviewed all of the evidence submitted, including the Veterans and Agent Orange: Update 2014, and that he had further reviewed additional medical literature, including the Veterans and Agent Orange: Update 2018, in which bladder cancer as due to Agent Orange remained categorized as “limited or suggestive evidence.” The examiner noted that, in total, the medical consensus does not conclude that Agent Orange is more likely than not causative for bladder cancer, and that this is demonstrated in multiple research papers, although some papers suggest a slight increase of risk for bladder cancer. The examiner noted that not all studies account for smoking history, which is a significant risk factor for bladder cancer. The examiner also stated that it is notable that one study in the United Kingdom among workers engaged in long-term manufacturing or spraying of herbicides had a slight decrease of incidence in bladder cancer. The examiner further stated that it is scientifically sound to state that risks of residuals are dose-dependent, and the examiner opined that the United Kingdom workers engaged in the manufacturing or spraying of herbicides would have had significantly more exposure to herbicides than the Veteran, who is a “Blue Water Veteran” of relatively short duration of honorable service in the Gulf of Tonkin. Furthermore, the examiner explained that the unchanged categorization of herbicide exposure from 2014 to 2018 is important, as it allows further observation over time for potential risks for bladder cancer as due to herbicide exposure, which have not changed. Given this evidence, the Board finds that the Veteran’s bladder cancer is not caused by or otherwise related to his active duty service, to include his in-service exposure to asbestos and herbicide agents, such as Agent Orange. The Board determines that the November 2013 and December 2018 VA examiners’ opinions are the most probative evidence as to the causal connection between the Veteran’s transient cell carcinoma of the bladder and his exposure to asbestos and herbicide agents in service because these examiners performed in-person examinations, noted the Veteran’s self-reported history, and reviewed the Veteran’s records, as well as additional medical literature. Moreover, the December 2018 VA examiner expressly addressed the contentions made by the Veteran and cited to the Veterans and Agent Orange: Update 2014, as well as additional studies and medical literature that he relied on, in determining that it is less likely than not that the Veteran’s transient cell carcinoma of the bladder was caused by or otherwise related to his exposure to herbicide agents, to include Agent Orange. Accordingly, as the preponderance of the evidence is against a finding of a causal link between the Veteran’s bladder cancer and his active service, the benefit of the doubt doctrine does not apply, and the Veteran’s claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hodzic, 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.