Citation Nr: 21061495 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 17-47 586 DATE: October 4, 2021 ORDER Entitlement to service connection for bladder cancer is denied. Entitlement to service connection for erectile dysfunction is denied. REMANDED Entitlement to service connection for coarctation of aorta is remanded. Entitlement to service connection for arterial tear is remanded. FINDINGS OF FACT 1. The preponderance of the evidence does not reflect that the Veteran's bladder cancer had onset in service or is otherwise related to service, to include exposure to herbicide agents or aviation fuel. 2. The Veteran's erectile dysfunction is not caused or aggravated by a service-connected disease or injury. CONCLUSIONS OF LAW 1. The criteria for service connection for bladder cancer are not met. 38 U.S.C. §§ 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for erectile dysfunction are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1958 to November 1958. These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2011 and October 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) that, among other things, confirmed and continued the previous denial of the claim of service connection for coarctation of the aorta and denied the claims of service connection for bladder cancer, erectile dysfunction, and arterial tear. In October 2020, the Veteran testified during a virtual Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In January 2021, the Board reopened the claim of service connection for coarctation of the aorta and remanded the claims on appeal for further development, to include obtaining VA opinions. The Agency of Original Jurisdiction (AOJ) has substantially complied with the Board's January 2021 remand instructions in regard to the claims of service connection for bladder cancer and erectile dysfunction by, as demonstrated by the discussion below, obtaining VA opinions that are adequate to decide the claims. Thus, no further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). Regrettably, another remand is necessary in regard to the claims of service connection for coarctation of the aorta and arterial tear. Entitlement to service connection for bladder cancer and erectile dysfunction Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service 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 may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. §3.310(a). In this case, the Veteran contends that his bladder cancer is related to herbicide agent exposure in service, and that his erectile dysfunction is related to his bladder cancer. VA laws and regulations provide that, if a Veteran was exposed to herbicide agents during service, certain listed diseases, to include bladder cancer, are presumptively service-connected. 38 U.S.C. § 1116(a)(1), (2); 38 C.F.R. § 3.309(e). A Veteran who "served in the Republic of Vietnam" between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to herbicide agents. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Even if a claimant cannot establish service connection on a presumptive basis, however, he can still establish that a disease not presumed service-connected is related to service, to include as due to herbicide agent exposure. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). In July 2021, a VA nurse practitioner found that the Veteran's bladder cancer was less likely than not caused by herbicide exposure. The nurse practitioner indicated that the Veteran served for eight months in 1958 in Texas and was not, to the Veteran's knowledge, exposed to herbicide agents. However, the Veteran experienced consistent aviation fuel exposure in service during his time as an aircraft mechanic. In a July 2021 VA addendum opinion, a VA physician noted that the Veteran's service treatment records were silent for any signs or symptoms of bladder cancer. Post-military records were silent for signs, symptoms, or diagnosis of bladder cancer until many years post-military. In addition, a medical literature search was silent in regard to whether exposure to aviation fuels later cause bladder cancer to develop. Thus, it was less likely than not that the Veteran's bladder cancer was related to service. For the following reasons, entitlement to service connection for bladder cancer and erectile dysfunction is not warranted. Here, as the evidence of record does not show that the Veteran had qualifying service in Vietnam or any other areas overseas where herbicide exposure is presumed, his claimed exposure to herbicide agents must be verified as there is no presumption of exposure. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. The AOJ undertook efforts to verify whether the Veteran was exposed to herbicide agents. A January 2021 letter sent from the VA to the Veteran requested he send within 30 days any evidence he had of his contended exposure to herbicide agents in service, to include evidence of service in Vietnam or, if the Veteran did not serve in Vietnam, evidence of when, where, and how he was exposed to herbicide agents. The Veteran did not respond to the January 2021 letter. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (the duty to assist is not always a one-way street). Thus, the Board finds that the AOJ tried to obtain information that might have corroborated the Veteran's claimed in-service exposure to herbicide agents. The Board will therefore decide the question of whether the Veteran was exposed to herbicide agents in service, and the claim, based on the evidence of record. Therefore, the evidence of record does not reflect that the Veteran was exposed to herbicide agents in service other than the Veteran's contention that he believed he was exposed during service. Although the Veteran is competent to relate his experiences in service, he is not competent to identify herbicide agents because such medical and scientific determinations require education, training and experience that the Veteran does not possess. Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (a layperson's assertions indicating exposure to gases or chemicals during service were not sufficient evidence alone to establish that such an event occurred during service). Moreover, the Veteran reported during the July 2021 VA examination that, to his knowledge, he was not exposed to herbicide agents. Thus, a finding of exposure to herbicide agents in service is not warranted. Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 176 (2016) (the Board must consider lay, historical, and archival evidence, in addition to service records, in determining whether there was service in Vietnam or exposure to herbicide agents elsewhere). Although a finding of exposure to herbicide agents is not warranted, as noted previously, the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis. The Veteran did not indicate that he had treatment for, symptoms of, or a diagnosis of bladder cancer in the years between service and his post-service diagnosis in approximately 2015, and he did not relay a diagnosis of bladder cancer during those years. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a layperson is competent to report a contemporaneous medical diagnosis). The Veteran's service treatment records do not contain any notations relating to symptoms, treatment, or diagnosis of bladder cancer. Post-service records reveal no mention of treatment or diagnosis for bladder cancer until the Veteran's diagnosis in 2015, approximately 57 years after separation from active duty. In this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, is one factor, along with those above, including the lack of notations relating to symptoms, treatment, or diagnosis relating to bladder cancer in the Veteran's service treatment records, as well as lack of statements indicating continuous symptoms, that can be considered as evidence against the claim. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (the Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue). The VA physician explained in the July 2021 addendum opinion why she concluded that the Veteran's bladder cancer was less likely than not caused by service, to include nothing that the Veteran's service treatment records were silent for any signs or symptoms of bladder cancer, post-military records were silent for signs, symptoms, or diagnosis of bladder cancer until many years after separation from service, and the lack of medical research correlating exposure to aviation fuels and later development of bladder cancer. As the VA physician explained the reasons for the conclusions based on an accurate characterization of the evidence, the opinion is entitled to some probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The July 2021 VA nurse practitioner's opinion is also entitled to some probative weight as it reasoned that the Veteran's bladder cancer was less likely than not related to service since the Veteran was not exposed to herbicide agents. Id. To the extent that the Veteran's lay statements suggest a relationship between his bladder cancer and service, to include exposure to herbicide agents, this is the type of complex medical issue relating to internal medical processes which extend beyond an immediately observable cause-and-effect relationship as to which lay evidence is not competent. Jandreau, 492 F.3d at 1376, n.4. For the foregoing reasons, the preponderance of the evidence does not reflect that the Veteran's bladder cancer had its onset in service or is related to service, to include exposure to herbicide agents or aviation fuel. The benefit of the doubt doctrine is therefore not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. With regard to service connection for erectile dysfunction as secondary to bladder cancer, this claim must also be denied because service connection has not been granted for bladder cancer. Thus, any further consideration of this issue is moot as secondary service connection presupposes that service connection is in effect for the underlying disability. 38 C.F.R. § 3.310. The issue of entitlement to service connection for erectile dysfunction on a direct basis has not been raised by the Veteran, his representative, or reasonably raised by the evidence of record. Thus, the Board need not address this theory of entitlement. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) ("Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory"). REASONS FOR REMAND Entitlement to service connection for coarctation of aorta and arterial tear The Veteran contends that his coarctation of the aorta was not congenital, or in the alternative, if it was congenital, it was aggravated by service, and his arterial tear is secondary to his coarctation of the aorta. Congenital and developmental defects are not "diseases or injuries" in the meaning of applicable legislation for disability compensation purposes. 38 C.F.R. § 3.303(c), 4.9. VA's General Counsel has held, however, that service connection may be granted for diseases (but not defects) of congenital, developmental, or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. VAOPGCPREC 82-90 (July 18, 1990); 38 C.F.R. §§ 3.303(c), 3.306. Service connection for a congenital defect can only be established if the congenital defect was subject to a superimposed disease or injury during military service that resulted in disability apart from the congenital or developmental defect. VAOPGCPREC 82-90 (July 18, 1990); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). In March 2021, a VA examiner found that coarctation of the aorta is a congenital cardiac malformation that can go undiagnosed until old age with only hypertension as a marker of its presence because clinical signs can be subtle and overlooked if a complete physical examination is not performed. As the VA examiner explained the reasons for the conclusion that the Veteran's coarctation of aorta is a congenital defect based on an accurate characterization of the evidence of record, the opinion is entitled to some probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). However, while the Veteran's coarctation of the aorta is a congenital defect for which service connection is not generally available, the VA examiner did not discuss whether the congenital defect was subject to a superimposed disease or injury during military service that resulted in disability apart from the congenital or developmental defect. Thus, remand is warranted to obtain a new VA opinion. As the claim of service connection for coarctation of the aorta warrants remand, remand of the claim for service connection for arterial tear as secondary to coarctation of the aorta is also warranted as the claims are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate physician to address whether the Veteran's coarctation of the aorta was subject to a superimposed disease or injury during military service that resulted in disability apart from coarctation of the aorta. If so, the physician should identify any additional disability that the Veteran suffered as a result of a disease or injury that was superimposed on the coarctation of the aorta. 2. If the Veteran's coarctation of the aorta is found to have been subject to a superimposed disease or injury during military service that resulted in disability apart from coarctation of the aorta, obtain an opinion from an appropriate physician to address whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's arterial tear was either (a) caused or (b) aggravated by coarctation of the aorta. If aggravation is found, the physician should identify to the extent possible the baseline level of the disability prior to the aggravation. The claims file should be provided to and reviewed by the physician. A complete rationale should accompany any opinion provided. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, 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.