Citation Nr: 20021846 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 15-23 352 DATE: March 27, 2020 ORDER Entitlement to service connection for bladder-ureter cancer, to include as secondary to exposure to herbicide agents is granted. Entitlement to dependency and indemnity compensation (DIC) based on service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicide agents coincident with his service in the Republic of Vietnam. 2. The Veteran’s bladder-ureter cancer is related to herbicide agent exposure during service. 3. The Veteran’s certificate of death shows that his immediate cause of death was gastrointestinal hemorrhage, with metastatic bladder carcinoma and acute renal failure noted as other significant conditions contributing to his death. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bladder-ureter cancer have been met. 38 U.S.C. §§ 1110, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1110, 1116, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1965 to September 1967. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2012 the Veteran died while he still had a pending claim for service connection for bladder-ureter cancer. In March 2013, the Appellant, who is the Veteran’s surviving spouse, filed a claim for DIC on VA Form 21-534. In January 2019 the RO provided notice to the Appellant that the request for substitution had been granted. Accordingly, the Veteran’s spouse has been substituted for the Veteran for the claim of entitlement to service connection for bladder-ureter cancer. These matters were previously remanded by the Board in February 2019, June 2019, and October 2019 for further development and for compliance pursuant to Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for bladder/ureter cancer, to include as secondary to exposure to agent orange is granted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Further, a Veteran who during active military, naval, or air service served in the Republic of Vietnam during the period beginning January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence establishing that the Veteran was not exposed to any such agent. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307 (a)(6)(iii). In order to benefit from the presumption of service connection for diseases associated with herbicide agent exposure, the Veteran must have one of the diseases enumerated in 38 C.F.R. § 3.309(e), which include lung cancer. However, diseases not enumerated in said regulation do not preclude service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1045 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contended that his bladder-ureter cancer was due to exposure to herbicide agents and other toxic chemicals during active service. In his May 2012 Statement in Support of Claim, he noted that he was currently under treatment for this cancer and noted that after being drafted in 1965 he was deployed to Vietnam in 1966. He further noted that he participated with the infantry in ground combat operations and was in jungle locations heavily sprayed with herbicides, dioxins, and other toxic chemicals. He noted that he also obtained drinking water from rivers and streams within these areas. The Veteran stated that exactly 45 years after his exposure to agent orange, a portion of his bladder and left ureter were removed. He noted that there was a mixture of cancer cells which included cells with sarcomatoid features, small cell, epithelial and squamous cells were found. Id. The Veteran’s military personnel records show that he served in the Republic of Vietnam from February 1966 to July 1966 and he was awarded the Combat Infantry Badge, Vietnam Campaign Medal, Vietnam Service Medal, Good Conduct Medal, and the National Defense Service Medal. He is presumed to have been exposed to herbicides. In September 2015, the Appellant submitted a medical opinion by the Veteran’s private physician indicating that the Veteran’s bladder cancer was due to his exposure to agent orange while serving in Vietnam. See August 2015 Third Party Correspondence. The physician stated that the Veteran was a patient of his who was treated initially for the finding of a distal uretal tumor. He stated that the Veteran underwent a biopsy back in 2011 which preliminarily came back as a transitional cell carcinoma of the ureter. He stated that the patient subsequently underwent treatment for that which entailed a laparoscopic nephroureterectomy. The physician further noted that the final pathology came back as a small cell type carcinoma of the ureter and was treated with multimodal therapy including chemotherapy and radiation. In discussing the Veteran’s treatment, the physician stated that the patient initially had good response, however, within a short time developed adenopathy and metastatic disease and eventually died of this disease in November 2012. The physician noted that the patient was a member of the first infantry unit in Vietnam and served during Vietnam. He noted that the Veteran had exposure to Agent Orange, and based on studies, there is a correlation between Agent Orange and respiratory cancers including lung cancer. The physician opined that although the Veteran’s cancer was not in his lungs, the type of cancer he had was a typical cancer that normally would be found in the lung. He further noted that this cancer was exceedingly found in the ureter which was highly aggressive. Id. In March 2019 a VA examiner opined that the Veteran’s bladder-ureter cancer was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. In June 2019 the Board found this decision to be inadequate because it cited passages from various medical literature, but did not adequately explain how the medical literature supports a negative nexus between the bladder-ureter cancer and herbicide exposure during service. The Board further found this examination inadequate as it failed to provide sufficient rationale as to why the risk factor of exposure to herbicide agents during service, in the context of no evidence of subsequent exposure to toxins post-service, no prior history of cancer, no family history of cancer, and no history of smoking, does not support a medical link between exposure to herbicide agent during service and the Veteran’s bladder-ureter cancer. The Board currently finds that this decision is also based on inaccurate facts as the examiner referenced the Veteran’s medical records which included a July 2011 letter between the Veteran’s private physicians indicating the Veteran did not have standard risk factors such as smoking, drinking, a family history of cancer, or exposure to other toxins. The examiner stated that medical records showed evidence of treatment for bladder cancer and noted that evidence based medical literature stated, “ureteral cancer” occurs most often in older adults and in people who have previously been treated for bladder cancer. The Board has reviewed the Veteran’s medical records, and notes that the first cancer treatment regarding this claim was in 2011, and there are no records indicating he had been previously treated for bladder cancer. This examination correctly quotes the July 26, 2011 medical records which note a diagnosis of urothelial carcinoma, yet only further notes Mayo Clinic and UpToDate risk factors for ureteral and bladder cancer without further explanation of non-urothelial cancers compared to urothelial cancers as later examiners do. This examiner notes that ureteral cancer is uncommon and notes factors that can increase the risk of ureteral cancer as increasing age, previous bladder or kidney cancer, and smoking. The examiner notes the bladder cancer risks as those who are older, being exposed to certain chemicals or industrial compounds in the workplace or the environment, cigarette smoke, and a family history of bladder cancer. In July 2019 a VA examiner opined that it is less likely than not (less than 50 percent probability) that the Veteran’s bladder-ureter cancer was caused by exposure to herbicide agents during service. This examiner’s rationale stated that review of evidence-based medical literature, including UpToDate, does not support a contention of bladder cancer or ureteral cancer as being caused by or due to herbicide exposure. The examiner further noted that per the Veteran’s death certificate, the Veteran was a 68-year-old male who died in November 2012 due to GI hemorrhage. Other contributing factors: Metastatic bladder carcinoma and acute renal failure. This examiner noted the July 2011 surgical pathology consultation report which notes distal left ureterectomy with histologic type: invasive urothelial carcinoma with extensive small cell carcinoma component and focal sarcomatoid features. The examiner also noted the July 2011 letter between the Veteran’s treating physicians stating that the Veteran did not have standard risk factors such as smoking, drinking, a family history of cancer, or exposure to other toxins. The examiner opined that the Veteran did have risk factors for ureteral cancer, which included his increasing age and prior bladder cancer (papillary cell carcinoma). The examiner noted the National Academy of Science’s Agent Orange (NAS): Update 11 (2018), categorizing “cancer of the urinary bladder” as having “limited or suggestive” evidence of an association with herbicide agent exposure. This update notes that many of the diseases listed in the NAS category of “limited or suggestive” evidence are diseases presumptively linked to Agent Orange exposure under VA regulations already, including lung cancer.” The examiners response to the NAS update was that the Veteran had no history of lung cancer, and did not address the association between herbicides and the Veteran’s cancer in his bladder. This examiner also failed to discuss the association made by the Veteran’s physician that the type of cancer found in the Veteran’s bladder is typically associated with lung cancer. This examiner also noted the risk factors of bladder cancer to include being more common in men and those who are older. He notes other factors that may increase the risk of bladder cancer to include exposure to chemicals, cigarette smoke, and a family history of bladder cancer. In November 2019 a third VA examination was conducted due to the Board finding the first two exams inadequate. In this November 2019 examination, the examiner opined that the weight of current medical and scientific evidence does not reach the threshold level of at least 50 percent probability that this Veteran’s ureteral/bladder cancer is related to an incident/event during military service including Agent Orange/herbicide exposure. The examiner noted that the Veteran presented with painless hematuria in May 2011 and was found to have small cell cancer of the distal ureter/bladder. He further noted that the Veteran was a non-smoker, had no family history of cancer, and presented no history of toxin exposure other than possible exposure to Agent Orange while in Vietnam. This examiner provided a brief description of the classification of bladder cancers and risk factors, discussing the two types of bladder cancer as urothelial and non-urothelial. The examiner stated that the Veteran had small cell cancer of the ureter-bladder. This examiner further noted that small cell carcinoma is a distinct clinicopathologic entity that usually arises in the lungs but can also originate in a wide range of extrapulmonary sites. He explained that extrapulmonary small cell carcinomas are extremely rare; and that these tumors have been described most frequently in the urinary bladder, prostate, and esophagus amongst other places. The examiner addressed the connection between the Veteran’s bladder cancer, and noted that even though the cells are morphologically similar on histopathological examination, the same risk factors and pathogenesis of small cell cancer of the lung need not necessarily be applicable to small cell carcinoma arising from other sites like the ureter/bladder. The examiner further opined that the Veteran had no identifiable risk factors for bladder cancer, highlighting this Veteran had small cell cancer and toxin exposure including Agent Orange and herbicides, which he opined is not a risk factor for small cell cancer of the ureter-bladder. The examiner then stated that there are no clear risk factors for small cell cancer of the bladder other than chronic urinary tract infection. This examiner then notes that he reviewed the National Academy of Science’s Agent Orange Update (2018) which indicated limited/suggestive evidence for bladder cancer and many of the cancers including cancer of the lung. In regards to this update, the examiner stated that this Veteran had small cell cancer which is a non-urothelial type of cancer and there is not enough evidence that toxins/Agent Orange exposure is a risk factor for this type of cancer, further noting that there are no clearly identifiable risk factors for small cell cancer other than chronic urinary tract infection and that the risk factors and pathogenesis differ according to the site of origin of the small cell cancer. He further notes that this Veteran had no evidence of lung cancer. Id. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors: whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case; whether the medical expert provided a fully articulated opinion; and whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file dos not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). In this case, although the Board found the March 2019 and July 2019 examinations inadequate, the Board notes they listed the risk factors for bladder-ureter, but failed to explain how they relate to the Veteran’s cancer. The Board finds the November 2019 examination to be more thorough in its opinion and explanation of the Veteran’s ureteral-bladder cancer with support from medical literature, however the Board gives this opinion less probative weight than the Veteran’s private physician as the November 2019 opinion is inconsistent with the March and July 2019 opinions as to the risk factors associated with bladder-ureter cancers. The March 2019 and July 2019 opinions note the Veteran’s risk factors as his age and previous bladder cancer diagnosis, while the November 2019 examiner stated that there are no clear risk factors for small cell cancer of bladder-ureter other than chronic urinary tract infections. The November 2019 examiner goes into great detail in discussing the differences between urothelial and non-urothelial bladder cancers, but failed to include a discussion regarding the Veteran’s preliminary diagnosis of invasive urothelial carcinoma with extensive small cell carcinoma component and focal sarcomatoid features as noted in the July 2011 surgical pathology consultation report. The Board notes the July 2019 examiner’s inclusion of the Veteran’s preliminary diagnosis, but provides less weight to all three VA examiners based on their inconsistent analysis of the risk factors for bladder-ureter cancer and failures to discuss the Veteran’s preliminary diagnosis before his cancer treatment. The Board finds that the medical opinion of the Veteran’s private physician to be adequate and persuasive as to the etiology of the Veteran’s ureter- bladder cancer. The VA examiner’s opinions are inconsistent, and the Board finds them inadequate in supporting a valid medical conclusion. After a review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is at least in equipoise on the question of whether the Veteran’s bladder-ureter cancer is the result of exposure to herbicide agents. The claim is granted. 2. Entitlement to DIC based on service connection for the cause of the Veteran’s death is granted. DIC is payable to the surviving spouse of a Veteran if the Veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly autopsy reports. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). Contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or aided the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). The Appellant contends that the Veteran’s death was principally caused by bladder-ureter cancer due to exposure to herbicide agents during his service in the Republic of Vietnam. See August 2018 Congressionals. The Appellant married the Veteran in May 1971. The Veteran passed away in November 2012. At the time of his death, the Veteran was service connected for posttraumatic stress disorder and bilateral hearing loss. His death certificate from November 2012 notes gastrointestinal hemorrhage as the immediate cause of death. Metastatic bladder carcinoma, and acute renal failure are listed as contributing causes of death. The Veteran’s treating physician stated that the patient initially had good response to his bladder-ureter cancer treatment, however, within a short time developed adenopathy and metastatic disease and eventually died of this disease in November 2012. See August 2015 Third Party Correspondence. Here, the Appellant asserts that the Veteran’s bladder cancer is directly related to service because of his herbicide agent exposure in Vietnam. The Board finds that service connection for the Veteran’s cause of death is warranted. As discussed above, the Board found that service connection for the Veteran’s bladder-ureter cancer is warranted. Therefore, since the bladder-ureter cancer was found to be related to the Veteran’s service and noted to be the principal   cause of the Veteran’s death, the Board finds that service connection for the Veteran’s cause of death is warranted. 38 C.F.R. § 3.312. The claim is granted. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Johnson, 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.