Citation Nr: 21067045 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 16-31 352 DATE: November 3, 2021 ORDER Service connection for bladder cancer as due to herbicide agent exposure is granted. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for kidney cancer is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran had confirmed active service within the 12-nautical mile limit of the Republic of Vietnam; as such, exposure to herbicide agents is presumed. 2. A clinical diagnosis of bladder cancer was confirmed in January 2013. CONCLUSION OF LAW The criteria for service connection for bladder cancer as due to herbicide agent exposure have been met. 38 U.S.C. §§ 116A, 1101, 1110, 1112, 1113, 1116, 1137, 5103, 5103a, 5107; 38 C.F.R. §§ 3.102, 3.103, 3.303, 3.307, 3.309; Public Law No. 116-283, National Defense Authorization Act for Fiscal Year 2021. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from September 1965 to October 1968. These matters come before the Board of Veterans Appeals (Board) on appeal from a June 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). A July 2020 Board decision denied the claims. The Veteran appealed to the Court of Appeals for Veterans Claims (Court) which, pursuant to a July 2021 Joint Motion for Remand, vacated and remanded the claims for further evidentiary development. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection The Veteran has contended that his bladder cancer is the result of his active service, to include exposure to herbicide agents. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 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). Furthermore, if a veteran was exposed to herbicide agents (e.g., Agent Orange) during active service, presumptive service connection is warranted for certain specified diseases. 38 C.F.R. §§ 3.307, 3.309. During the course of the appeal, the list of presumptive diseases was expanded to include bladder cancer. Public Law No. 116-283, National Defense Authorization Act for Fiscal Year 2021. Also during the course of the appeal, Congress passed the Blue Water Navy Vietnam Veterans Act of 2019. The Act was implemented in 38 U.S.C. § 116A which provides that a veteran who served offshore of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed to an herbicide agent unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. A location is treated offshore of Vietnam if it is not located more than 12 nautical miles commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting points provided by the statute. 38 U.S.C. § 116A; see also Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). As noted in an August 2021 memorandum, the Veteran's exposure to herbicide agents is conceded based on his confirmed nautical service in the offshore eligible waters. Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection for a disability due to exposure to herbicide agents with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom, Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Turning to the evidence of record, a January 2013 pathology report established that the Veteran had a bladder tumor, a low-grade papillary urothelial carcinoma. An April 2015 VA examination confirmed that he had an active malignancy in his bladder. In July 2015, he underwent a removal of the tumor. Service connection for bladder cancer as due to herbicide agent exposure is granted. The Veteran has presumed herbicide agent exposure and diagnostic testing confirmed that he had bladder cancer. As such, service connection is warranted on a presumptive basis for bladder cancer and any associated residuals. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. The Veteran has contended that his currently-diagnosed hypertension is the result of his active service, to include his conceded exposure to herbicide agents. A VA examination was conducted in April 2015. The examiner concluded that hypertension was less likely than not the result of his service, noting that no hypertension was diagnosed in service and it is not a presumptive condition due to Agent Orange. However, notwithstanding the presumption provisions, a claimant is not precluded from establishing service connection for a disability due to exposure to herbicide agents with proof of direct causation. Combee v. Brown, 34 F.3d at 1042; Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom, Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). As noted by the Court, denying service connection "on the basis that it is not likely there is any nexus to service solely because the statistical analysis does not support presumptive service connection, would, in effect, permit the denial of service connection simply because there is no presumptive service connection." See Polovick v. Shinseki, 23 Vet. App. 48 (2009). Further, although VA has not conceded a presumptive relationship between hypertension and Agent Orange, the National Academy of Sciences (NAS) has placed hypertension in a "sufficient evidence" category as of the 2018 Update. That is, although hypertension has not been added to the list of diseases presumptively associated with exposure to herbicide agents, the NAS has recognized "sufficient evidence" of an association between the two such that a correlation cannot be ruled out with reasonable confidence. The Federal Circuit has recently found that this NAS 2018 Update is in the constructive possession of the VA and, therefore, must be considered in the adjudication of appeals where it may be implicated. See Euzebio v. McDonough, 989 F.3d 1305 (Fed. Cir. 2021). As such, the Board finds that a new VA opinion is needed before a decision may be rendered on the claim. 2. Entitlement to service connection for kidney cancer is remanded. The Board finds that remand is needed to attempt to obtain outstanding records of private medical treatment to comply with the terms of the JMR. Specifically, the RO should request a release from the Veteran as to urology records from treating physicians S.K. and A.W. at the University of Michigan in March 2019 or request that the Veteran obtain the records and provide them to VA. 3. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran has contended that his acquired psychiatric disorder is the result of his active service or was caused or aggravated by his service-connected myocardial infarction. A February 2017 VA treatment record noted the Veteran's history of medication use from "2010 after experiencing anxiety from heart issues..." However, no VA opinion has been obtained as to whether his acquired psychiatric disorder is secondary to his service-connected myocardial infarction. The Board finds that the low bar to provide a VA examination and opinion has been met and remand is needed to afford the Veteran an evaluation considering the secondary theory of entitlement. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 4. Entitlement to service connection for OSA is remanded. The Board finds that remand is needed to attempt to obtain outstanding records of private medical treatment to comply with the terms of the JMR. Specifically, the RO should request a release from the Veteran as to sleep studies at Allegiance Sleep Health Center in Jackson, Michigan, from October 2014 and October 2015 or request that the Veteran obtain the records and provide them to VA. 5. Entitlement to service connection for bilateral hearing loss is remanded. As noted by the Court, an April 2015 VA examiner concluded that he could not provide an opinion as to whether the Veteran's bilateral hearing loss was the result of his active service. In order to comply with the terms of the JMR, the Board finds that a new examination and opinion are needed which provide a conclusion supported by an adequate analysis that the Board can consider and weigh. See Stefl v. Nicholson, 21 Vet. App. 120, 123-124 (2007). The Board notes that the Veteran's military occupational specialty of Gas Turbine System Technician (Mechanical) is highly probable for noise exposure. As such, his exposure to military noise is conceded. The matters are REMANDED for the following action: 1. Request that the Veteran provide the necessary authorization and release for outstanding records of private medical treatment, specifically to include urology records of treatment by Drs. S.K. and A.W. at the University of Michigan in March 2019 and sleep studies at Allegiance Sleep Health Center in Jackson, Michigan, from October 2014 and October 2015. Make multiple attempts to obtain any identified and released records and note such attempts in the claims file. If the Veteran does not provide the necessary authorizations and releases, request that he obtain the records and submit them to VA himself. 2. Obtain a VA medical opinion from an appropriate medical professional with respect to the hypertension claim. The need for an in-person examination is left to the discretion of the clinician providing the opinion. The clinician is asked to provide an opinion addressing: (a.) Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran's hypertension is related to his active service, to include conceded herbicide agent exposure in the waters of Vietnam. In so rendering the opinion, the clinician is reminded that the fact that hypertension is not on the presumptive list of conditions due to herbicide agent exposure cannot by itself be the sole basis for a negative nexus opinion. Rather, the clinician should consider the Veteran's specific military history, medical history, risk factors, and any other circumstances deemed relevant by the clinician in rendering an opinion. Further, the examiner is also asked to consider "Update 2018" from the National Academy of Sciences that indicates "sufficient evidence" of an association between hypertension and herbicide agent exposure in rendering an opinion. See NAS 2018 Update. A complete and fully explanatory rationale should be provided for any opinion. If any opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, by a deficiency in the record, or because the examiner does not have the needed knowledge or training. 3. Schedule the Veteran for a VA examination with an appropriate clinician to consider the nature and etiology of any acquired psychiatric disorder. The examiner is asked to review the claims file and determine: (a.) Whether it is at least as likely as not that any acquired psychiatric disorder is the result of the Veteran's active service; and (b.) Whether it is at least as likely as not that the claimed acquired psychiatric disorder was proximately caused or aggravated (i.e., worsened beyond natural progression) by the Veteran's service-connected myocardial infarction. The clinician is reminded that the term "aggravated" as used in 38 C.F.R. § 3.310(b), does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. at 239. The clinician should specifically discuss the Veteran's medical history regarding the development and progression of his acquired psychiatric disorder in light of his service-connected myocardial infarction. If medical literature is relied upon in rendering this determination, the clinician should identify and specifically cite each reference material used. A complete and fully explanatory rationale should be provided for any opinion. If any opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, by a deficiency in the record, or because the examiner does not have the needed knowledge or training. 4. Schedule the Veteran for a VA examination with an appropriate clinician to consider the nature and etiology of his bilateral hearing loss. The examiner is asked to review the claims file and determine: (a.) Whether it is at least as likely as not that the Veteran's bilateral hearing loss is the result of his active service, to include conceded noise exposure. A complete and fully explanatory rationale should be provided for any opinion. If any opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, by a deficiency in the record, or because the examiner does not have the needed knowledge or training. 5. Thereafter, and after any further development deemed necessary, the issues on appeal should be readjudicated with consideration of all evidence of record. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rachel E. Jensen, 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.