Citation Nr: 20051663 Decision Date: 08/04/20 Archive Date: 08/04/20 DOCKET NO. 17-19 965 DATE: August 4, 2020 REMANDED Entitlement to service connection for bladder cancer, to include as due to exposure to herbicides and/or diesel fuel, is remanded. Entitlement to service connection for prostate cancer, to include as due to exposure to herbicides and/or diesel fuel, or as secondary to bladder cancer or kidney cancer, is remanded. Entitlement to service connection for kidney cancer, to include as due to exposure to herbicides and/or diesel fuel, or as secondary to bladder cancer or prostate cancer, is remanded. REASONS FOR REMAND The Veteran had active service from November 1966 to June 1969 and June 1978 to September 1984. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a February 2019 decision, the Board denied the issues of entitlement to service connection for prostate cancer and kidney cancer and declined to take jurisdiction of a claim for entitlement to service connection for bladder cancer. The Veteran appealed the February 2019 Board decision to the Court of Appeals for Veterans Claims (CAVC). In a March 2020 Order, the Court granted a Joint Motion for Remand (JMR), vacated the February 2019 Board decision and remanded the issues to the Board for development consistent with the JMR. 1. Entitlement to service connection for bladder cancer, to include as due to exposure to herbicides and/or diesel fuel. 2. Entitlement to service connection for prostate cancer, to include as due to exposure to herbicides and/or diesel fuel, or as secondary to bladder cancer or kidney cancer. 3. Entitlement to service connection for kidney cancer, to include as due to exposure to herbicides and/or diesel fuel, or as secondary to bladder cancer or prostate cancer. As discussed in the March 2020 JMR, the Board finds that the issue of entitlement to service connection for bladder cancer is inextricably intertwined with the issues of kidney and prostate cancer, as the medical evidence suggests a single disease process. See DeLisio v. Shinseki, 25 Vet. App. 45, 53 (2011). Thus, in order to properly address the Veteran’s claims for service connection for prostate and kidney cancer, it is appropriate to assume jurisdiction over his claim for entitlement to service connection for bladder cancer. The Veteran asserts his bladder cancer, prostate cancer, and kidney cancer are due to his exposure to herbicides during service, or in the alternative, are due to exposure to diesel fuel. Exposure to herbicides has been conceded. See, e.g., March 2017 statement of the case. A March 2015 VA examiner opined that the Veteran’s bladder cancer was the primary cancer, which then spread to the prostate and kidneys. In May 2015, Dr. M., a private physician, opined that repeated exposure to herbicides and diesel fuel could have caused or contributed to the Veteran’s bladder cancer. No further rationale was provided. An additional private physician’s opinion, Dr. S., was received in September 2016. The physician stated that the Veteran was treated for bladder cancer and reported Agent Orange exposure and other herbicide exposure mixed with fuel regularly during his active military duty. The physician opined that given this exposure, the Agent Orange, herbicide and fuel exposure likely contributed to the development of or possibly caused his bladder cancer. No further rationale was provided. A VA examiner’s opinion was obtained in October 2016. The examiner opined that the Veteran’s bladder cancer was less likely than not due to service. The examiner explained that the Veteran has a 40-year history of at least one pack per day, and therefore, his bladder cancer is attributed to his extensive use of tobacco products; the examiner stated several times that bladder cancer is not a presumptive condition attributed to exposure of the herbicide Agent Orange. The Board finds the rationale provided by the October 2016 VA examiner is inadequate. The United States Court of Appeals for Veterans Claims has held, in the context of an opinion considering the issue of herbicide agent exposure, that a medical nexus opinion finding a condition is not related to service because the condition is not entitled to presumptive service connection, without clearly considering direct service connection, is inadequate on its face. See Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009). Additionally, to date, a medical opinion has not yet been provided as to whether the Veteran’s bladder cancer is causally or etiologically due to his exposure to fuel during service. Given the complex medical nature of the medical question at issue and controversy, the Board has determined that in accordance with 38 U.S.C. § 5109, a remand is required for VA to request an advisory medical opinion from an independent medical expert. The matters are REMANDED for the following action: 1. Follow the established procedures for requesting an advisory opinion furnished by a medical school, university, clinic or medical institution (i.e., an independent medical expert who is not an employee of the Department). 2. Pursuant to 38 U.S.C. § 5109, the file should be sent to an oncologist to offer an independent medical opinion addressing the following: a) Please review the medical evidence as well as the March 2015 VA examiner’s opinion and discuss whether the evidence supports the theory that the Veteran’s bladder cancer was the primary cancer, which then spread to the prostate and kidneys. b) Please opine as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s bladder cancer (or other cancer determined to be the primary cancer) is causally or etiologically due to service, to include as due to conceded exposure to herbicides and/or diesel fuel. c) In rendering this opinion, the examiner is asked to consider whether there is a medically sound basis to attribute in any way the Veteran’s bladder cancer (or other determined primary cancer) to his in-service exposure to herbicides and/or diesel fuel. *The examiner is advised that the Board is cognizant that there is no VA presumption of service connection for bladder cancer or kidney cancer as due to herbicide exposure. The question here is what is the likelihood that this Veteran’s cancer is related to his herbicide exposure and/or diesel fuel exposure, given his medical history, family history, other risk factors, etc. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Andersen, 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.