Citation Nr: 21010675 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-57 560 DATE: February 25, 2021 ORDER Service connection for bladder cancer, to include as due to herbicide exposure, is granted. Service connection for a prostate condition, to include as due to a service-connected bladder cancer, is granted. Special monthly compensation (SMC) based aid and attendance is granted. REMANDED Entitlement to service connection for a kidney condition is remanded. FINDINGS OF FACT 1. The competent and credible evidence of record in this case tends to show that the Veteran was exposed to herbicide agents. 2. The competent evidence reflects that the Veteran has a current diagnosis of bladder cancer, which is presumed related to his in-service herbicide exposure. 3. The competent and probative evidence is at least in equipoise that the Veteran’s current prostate condition is proximately due to the Veteran’s service-connected bladder cancer. 4. The Veteran requires the need of regular aid and attendance due to his service-connected disabilities CONCLUSIONS OF LAW 1. The criteria for service connection for bladder cancer, as due to exposure to herbicide agents, are met. 38 U.S.C. §§ 1110, 1116, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309; Pub.L. 116-283. 2. The criteria for secondary service connection for a prostate condition are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 3. The criteria for SMC due to the need for aid and attendance have been met. 38 U.S.C. § 1114(s), 5107(b); 38 C.F.R. § 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1964 to February 1966. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in April 2020, at which time the Board remanded the matter for further development, as discussed below. The Board finds that the remand directives were not substantially complied with regard to the claim of service connection for a kidney condition and thus another remand is warranted. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection A veteran is entitled to compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § § 3.303. To establish service connection, evidence must show: (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 - the so-called “nexus” requirement. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. § § 1116; 38 C.F.R. § § 3.307. Service incurrence for certain diseases, including kidney cancer, will be presumed on the basis of association with certain herbicide agents (e.g., Agent Orange), in accordance with the National Defense Authorization Act for Fiscal Year 2021, effective January 1, 2021. See Pub.L. 116-283; see also 38 U.S.C. § § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Such presumption, however, requires evidence of actual or presumed exposure to herbicide agents. Id. Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection with proof of direct causation. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that the availability of presumptive service connection from some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, presumption is not the sole method for showing causation. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994). When a veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The benefit of the doubt rule is a unique standard of proof, and “the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding such benefits.” Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert, 1 Vet. App. at 54). 1. Entitlement to service connection for bladder cancer. The Veteran contends that his bladder cancer is due to exposure to herbicides during service in the Republic of Vietnam. The Veteran is diagnosed with bladder cancer. 07/16/2020, C&P Exam. As such, the first element of service connection is established. The April 2016 rating decision conceded that the Veteran had been exposed to herbicide agents during his Vietnam service. Specifically, the Veteran’s service records confirm that he served on the USS Oxford from January 7, 1964 to February 14, 1966. USS Oxford conducted numerous month-long deployments along the Vietnam coast collecting data, with evidence that crewmembers went ashore, between 1965 and 1969. 04/27/2016, Rating Decision; 02/05/2016, Military Personnel Record; 02/23/2016, Correspondence. Therefore, the Veteran’s exposure to herbicide agents is established. Given the above, the Board concludes that the Veteran is entitled to presumptive service connection based on exposure to herbicide agents. 38 C.F.R. §§ 3.307, 3.309.   Bladder cancer is a condition for which service connection can be granted on a presumptive basis when exposure to herbicide agents is established, pursuant to the National Defense Authorization Act for Fiscal Year 2021, effective January 1, 2021. See Pub.L. 116-283. Accordingly, entitlement to service connection for bladder cancer is granted. 38 U.S.C. § § 5107(b); 38 C.F.R. § 3.102. 2. Service connection for a prostate condition. After review of the record, the Board finds that the criteria for service connection for a prostate condition, as secondary to service-connected disabilities, have been met. The Veteran has a current diagnosis of having a prostatectomy. 05/18/2018, CAPRI, page 47. An April 2016 VA examination indicated that the Veteran’s prostatectomy was related to his bladder cancer. Specifically, the Veteran had a cystoprostatectomy and nephrectomy for transitional cell cancer in his bladder. 04/08/2016, C&P Exam. The Board finds the evidence is at least in equipoise regarding whether the current prostate condition is proximately related to his service-connected bladder cancer. The Board places weight on the April 2016 VA examination because the pertinent medical history was considered, to include the complications of the Veteran’s bladder cancer. And, importantly, the record is devoid of evidence indicating that the Veteran’s prostate condition is not related to his bladder cancer. As such, the Board finds that the Veteran’s prostatectomy and any residuals of this are proximately due to his now service-connected bladder cancer. 38 C.F.R. §§ 3.102, 3.310(a).   3. Entitlement to SMC based on aid and attendance. The Veteran seeks entitlement to SMC based on aid and attendance. “SMC is available when, ‘as the result of service-connected disability,’ a veteran suffers additional hardships above and beyond those contemplated by VA’s schedule for rating disabilities.” Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011) (citing 38 U.S.C. § 1114(k)-(s)). Section 1114(l) provides five distinct ways for a veteran, “as the result of service-connected disability,” to qualify for this rate of SMC: (1) anatomical loss or loss of use of both feet; (2) anatomical loss or loss of use of one hand and one foot; (3) blindness in both eyes with 5/200 visual acuity or less; (4) being permanently bedridden; or (5) having “such significant disabilities as to be in need of regular aid and attendance.” 38 U.S.C. § 1114(l). Under 38 U.S.C. § 1114(s), SMC is payable at the housebound rate if the Veteran has a single service-connected disability rated as 100 percent and either of the following are met: (1) there is additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or (2) he or she is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The requirement of “permanently housebound” will be considered to have been met when the veteran is substantially confined to his or her house (ward or clinical areas, if institutionalized) or immediate premises due to a service-connected disability or disabilities which it is reasonably certain will remain throughout his or her lifetime. Id. SMC is payable where a veteran suffers from service-connected disability that renders him so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Determinations as to the need or aid and attendance are based on the actual requirements of personal assistance from others. In determining the need for regular aid and attendance, consideration will be given to the inability of the veteran to dress or undress himself, or to keep himself clean; frequent need of adjustment of any prosthetic which by reason of the disability cannot be done without aid; inability of the veteran to feed himself; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect himself from the hazards or dangers of his daily environment. Bedridden will be that condition which, through its essential character, actually requires that the claimant remain in bed. 38 C.F.R. § 3.352(a); see Turco v. Brown, 9 Vet. App. 222, 224-25 (1996) (stating that it is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there is a constant need). It is noted that, in order for the veteran to prevail in his claim, the evidence must show that it is a service-connected disability that has resulted in him being in need of regular aid and attendance or being housebound. See Prejean v. West, 13 Vet. App. 444, 447-48 (2000). In this case, the Veteran is service-connected for bladder cancer and a prostate condition, among others. His aid and attendance examination from 2017 showed that he was able to feed himself and prepare his own meals, but that he required assistance for bathing and tending to other hygiene needs. Specifically, due to the location of ostomy, the Veteran is unable to care for himself without assistance of others. 09/26/2017, VA 21-2680. Subsequently, the Veteran’s spouse reported that the Veteran requires assistance in changing his urinary pouce, keeping his area clean and free of infection, and prepare the Veteran’s urinating tube every night, as the Veteran is too weak to handle these tasks. The Veteran is dependent on his spouse for his basic daily needs. 04/22/2020, Email Correspondence. The Board finds this evidence lends additional support and credence to the Veteran’s competent and credible statements regarding his impairment of daily activities. As such, the Board finds that entitlement to SMC based on aid and attendance is warranted. The Veteran’s service-connected disabilities necessitate assistance with activities of daily living to include bathing and dressing. Therefore, the claim of entitlement to SMC based on aid and attendance is granted. REASONS FOR REMAND 4. Entitlement to service connection for a kidney condition is remanded. An April 2020 Board decision remanded the claims of service connection for kidney condition and directed the Agency of Original Jurisdiction (AOJ) to obtain any outstanding VA treatment records and request that the Veteran submit any relevant records and evidence, to include copies of the cited articles in the April 2020 Brief, as well as any medical journal article that the Veteran seeks to have considered. Additionally, the AOJ was directed to schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosis of a kidney condition and provide opinions as to whether it is at least as likely as not related to the Veteran’s period of active service, to include due to presumed herbicide agent exposure, as well as whether it was caused or aggravated by the Veteran’s bladder cancer. The VA examiners were directed to consider any medical research submitted by the Veteran, including the cited articles in the April 2020 Brief, as well as the article submitted in September 2016. 04/19/2020, BVA Decision. Shortly thereafter, the AOJ requested that the Veteran complete authorizations to obtain relevant treatment records, as well as to provide copies of the cited articles in the April 2020 Brief and any medical journal article that the Veteran seeks to have considered. 04/29/2020, Subsequent Development Letter. The Veteran provided authorizations to obtain records from three private medical providers. 05/23/2020, VA 21-4142; 05/28/2020, Notification Letter. Treatment records from two of the private medical providers were obtained and associated with the claims file. 06/04/2020, Medical Treatment Record – Non-Government Facility; 06/05/2020, Medical Treatment Record – Non-Government Facility. The AOJ documented its multiple unsuccessful efforts to obtain treatment records from Dr. Collins, the Veteran’s urologist, due to a discrepancy in the reported dates of treatment. 06/02/2020, VA 21-0820. A July 2020 VA examination noted diagnoses of chronic kidney disease (stage 4), neoplasm of the kidney, and kidney removal. The examiner opined that the Veteran’s kidney condition is less likely than not related to his period of active service, to include herbicide agent exposure. The examiner’s opinion suggests that the Veteran’s kidney condition is related to his bladder cancer but does not specifically provide a rationale as to whether the kidney condition is related to service. Additionally, the rationale is largely identical to the examiner’s opinion regarding the Veteran’s bladder cancer. 07/16/2020, C&P Exam; 07/16/2020, C&P Exam (medical opinion). The Board also notes that, although the cited articles in the April 2020 Brief were considered by the July 2020 VA examiner, copies of the medical journal article have not been associated with the claims file. The Board finds that the July 2020 VA examinations is incomplete. The examiner did not provide a rationale regarding whether the Veteran’s kidney condition is related to active service. The examiner also did not provide an opinion as to whether kidney condition was caused or aggravated by the Veteran’s bladder cancer. Accordingly, the Board finds that the July 2020 VA medical examination is, at best, incomplete and an addendum medical opinion is needed. This matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. Additionally, request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. 2. Request that the Veteran and his representative submit printed copies of any medical journal article that the Veteran seeks to have considered by VA in support of his claim. Specifically request that the Veteran or his representative print and submit full copies of the cited articles in the April 2020 Brief.   3. After completing directives # 1 and #2, obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of any diagnosis of a kidney condition. An in-person examination is not required unless deemed necessary by the clinician. The clinician is to review the virtual file, including a copy of this Remand. The examiner is to address the following: (a.) Whether it is at least as likely as not that a current kidney condition is related to the Veteran’s period of active service, to include due to presumed herbicide agent exposure. (b.) Whether it is at least as likely as not that the current kidney condition was caused by the Veteran’s service-connected bladder cancer. (c.) Whether it is at least as likely as not that the current kidney condition has been aggravated (i.e., worsened beyond the normal progression of that disease) by his bladder cancer. The clinician is to consider any medical research submitted by the Veteran, including the cited articles in the April 2020 Brief, as well as the article submitted in September 2016. See 09/08/2016, Third Party Correspondence. The clinician is to also consider the medical research cited in the July 2020 VA medical opinion. See 07/16/2020, C&P Exam (medical opinion). Inform the examiner that a comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Han 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.