Citation Nr: 20036637 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 14-14 756 DATE: May 28, 2020 ORDER Entitlement to service connection for bladder cancer, to include as due to exposure to herbicides, is denied. Entitlement to service connection for prostate cancer, to include as due to exposure to herbicides, is denied. FINDINGS OF FACT 1. Bladder cancer is not included in the enumerated list of diseases eligible for presumptive service connection due to herbicide agent exposure, to include Agent Orange, set forth in applicable regulation. 2. The medical evidence does not show that the Veteran’s bladder cancer is causally or etiologically related to any disease, injury or incident in service, to include exposure to a herbicide agent, including Agent Orange, and did not manifest within one year of the Veteran’s discharge from service. 3. The Veteran has not been diagnosed with prostate cancer at any point during the appeal period. CONCLUSIONS OF LAW 1. Bladder cancer was not incurred in or aggravated by active military service and may not be presumed to have been incurred in or aggravated by such service. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for prostate cancer have not been met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from July 1968 to February 1971. The Veteran had service in the Republic of Vietnam. A hearing was conducted by Travel Board in March 2016 before the undersigned Veteran’s Law Judge, at which the Veteran and his spouse testified; a transcript is of record. The Board previously remanded this case for additional development in April 2018. The matter has now returned to the Board for appellate review. Service Connection Generally, service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection for a disability requires evidence of: (1) The existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). See also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing an in-service disease or injury and a nexus for chronic diseases is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). The law establishes a presumption of entitlement to service connection for diseases associated with exposure to certain herbicide agents and also provides a presumption of exposure for veterans who served in the Republic of Vietnam. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309 (e) if manifested to a compensable degree at any time after active service. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.307 (a)(6)(ii). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 1. Entitlement to service connection for bladder cancer, to include as due to exposure to herbicides The Veteran contends that exposure to an herbicide agent, to include Agent Orange, caused his bladder cancer. Turning to the record, the Veteran’s service treatment records (STRs) are silent as to any diagnosis or treatment for any urinary problems during active service. The Veteran’s January 1968 enlistment examination reflects that his genitourinary (GU) system was normal and he indicated that he had not had any kidney stones or blood in the urine. Likewise, at the time of his separation examination entered into his profile in February 1972, his GU system was noted as normal. Private treatment records from February 2016, indicate that the onset of the Veteran’s bladder cancer was detected in May 2011, followed by a radical cystectomy and radical prostatectomy with bilateral pelvic lymph node dissection and orthotopic neobladder reconstruction. The Veteran’s private physician noted the Veteran had a high risk of metastases. Further, he explained that due to the proximity of the bladder and prostate, the extension of the urothelium into the prostatic urethra, the prostate is almost universally removed during the time of cystoprostatectomy for urothelial carcinoma of the bladder. Additionally, the private physician remarked that the Veteran was doing well following surgery, experiencing occasional urinary tract infections. The Veteran continued to be monitored with surveillance imaging. Pursuant to the Board’s April 2018 remand, a VA medical opinion was obtained. After a review of the Veteran’s claims file, the examiner opined that the Veteran’s bladder cancer was less likely as not caused by the Veteran’s active service, to include as due to exposure to herbicides. Specifically, the examiner explained that The Institute of Medicine, US National Academy of Sciences released The Veteran’s and Agent Orange Update 2014. The committee found that bladder cancer had a limited or suggestive evidence of association with Agent Orange. However, bladder cancer has not yet been listed by the Department of Veterans Affairs as a cancer thought to be caused by contact with Agent Orange. At the March 2016 Board hearing, the Veteran testified that his bladder cancer was high grade and aggressive. He further testified that he has been cancer free since 2012. The Veteran’s spouse testified that the doctors took the prostate at the same time as the bladder because the cancer was already going through the wall of the bladder. Without a direct relationship between bladder cancer and herbicide exposure being established on clinical evidence, bladder cancer cannot be presumed service-connected based on the Veteran’s exposure to an herbicide agent, to include Agent Orange. Nor is a presumption based on manifestation within one year of service available and, as the Veteran was not diagnosed with bladder cancer until May 2011, there is no evidence of continuity of symptomatology to warrant presumptive service connection. 38 C.F.R. § 3.309 (a). However, the Board recognizes that the regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. §§ 3.303 (d), 3.309(e); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange (i.e., herbicides) does not preclude direct service connection for other conditions based on exposure to Agent Orange). Yet, as stated above, the Veteran STRs reveal no complaints or treatment pertaining to the genitourinary system generally and no detection of blood in the urine specifically as a possible symptom of bladder cancer. After service, the record establishes no appearance of bladder cancer until many years later in 2011. Further the Board acknowledges that lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility where his reports to his physicians appear in the record. However, the Board must emphasize that he is not competent to diagnose or interpret accurately findings pertaining to the Veteran’s bladder disorder or its relation to service, as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau, 492 F.3d at 1376-77. For the reasons stated, the Board finds there is no presumption of service connection of the Veteran’s bladder cancer based on exposure to an herbicide agent, to include Agent Orange, or based on any other presumption. The Board also finds the record does not contain competent medical findings, an adequate opinion or a supporting rationale which establish that the Veteran’s bladder cancer or its surgery was caused by an in-service event, injury or disease, to include exposure to an herbicide agent, including Agent Orange. For these reasons, service connection cannot be established. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim, the doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. 2. Entitlement to service connection for prostate cancer, to include as due to exposure to herbicides The Veteran maintains entitlement to service connection for prostate cancer as due to exposure to herbicides during his active service. He asserts that his bladder cancer would have metastasized to his prostate had it not been removed as a result of the bladder cancer. Initially, the Board observes that there is no competent medical evidence of record which supports a diagnosis of prostate cancer at any point during the appeal period. According to a private treatment record from February 2016, the provider noted that because of the proximity of the bladder and prostate, the extension of the urothelium into the prostatic urethra, the prostate was almost universally removed during the time of cystoprostatectomy for urothelial carcinoma of the bladder. However, in the VA medical opinion of May 2019, the examiner noted that there was no evidence that the Veteran had prostate cancer at the period of treatment for bladder cancer. At the March 2016 Board hearing, the Veteran’s representative asserted that the Veteran is seeking presumptive service connection for prostate cancer because if the Veteran had let the bladder cancer metastasize, he would have had prostate cancer. The Veteran further testified that he has been cancer free since 2012. The Board acknowledges that the Veteran himself has claimed that his bladder cancer would have metastasized to prostate cancer, and that it either are directly related to his active service. However, while the Veteran is competent to report (1) symptoms observable to a layperson, e.g., pain; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, the Veteran’s lay assertions of medical diagnosis or etiology are afforded little probative value and cannot constitute evidence upon which to grant the claim for service connection. Latham v. Brown, 7 Vet. App. 359, 365 (1995). There being no competent medical evidence of a diagnosed prostate cancer, the preponderance of the evidence weighs against the Veteran’s claim, and the benefit-of-the-doubt rule does not apply. Service connection for prostate cancer must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Scanlan, 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.