Citation Nr: 21025246 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 06-32 183 DATE: April 27, 2021 ORDER Entitlement to service connection for bladder cancer as due to herbicide exposure is granted. REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT 1. The Veteran was exposed to herbicide agents during active service while serving in Thailand at Ubon Royal Thai Air Force Base (RTAFB) from July 1966 to August 1967. 2. In 2021, the National Defense Authorization Act added bladder cancer to VA's list of diseases presumptively associated with exposure to herbicide agents. Because of this, the Veteran's current bladder cancer is presumptively related to his herbicide exposure in Thailand. CONCLUSION OF LAW The criteria entitlement to service connection for bladder cancer have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1964 to October 1968. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ) in August 2017. A transcript is of record. These matters were remanded by the Department of Veterans Affairs (VA) Board of Veterans’ Appeals (Board) for further development multiple times, most recently in July 2020. 1. Entitlement to service connection for bladder cancer, to include as secondary to herbicide exposure is granted. Service connection will generally be awarded when a veteran has a disability resulting 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). To establish service connection on a direct basis, the evidence must show (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link or nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 252 (1999). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim will be granted). The Veteran has a current diagnosis of bladder cancer. See June 2019 VA Examination. Therefore, he has a current disability and the first element of service connection has been met. Where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and a disease enumerated by the regulations become manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1110, 1133; 38 C.F.R. §§ 3.307, 3.309. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including diabetes mellitus, type II, and early-onset peripheral neuropathy, shall be service-connected if the requirements of section 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(d)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(d)(6)(i). Section 3.307(d)(6) also provides that a veteran who, during active military, naval, or air 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 during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(d)(6)(iii). VA's Compensation & Pension Service (C&P) has issued information concerning the use of herbicides in Thailand during the Vietnam War. In a May 2010 bulletin, C&P indicated that it has determined that there was significant use of herbicides on the fenced in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. A primary source for this information was the declassified Vietnam era Department of Defense (DOD) document titled Project CHECO Southeast Asia Report: Based Defense in Thailand. Although DOD indicated that the herbicide use was commercial in nature rather than tactical (such as Agent Orange), C&P has determined that there was some evidence that herbicides of a tactical nature, or that of a "greater strength" commercial variant, were used. Given this information, C&P has determined that special consideration should be given to veterans whose duties placed them on or near the perimeters of Thailand military bases. Consideration of herbicide exposure on a "facts found or direct basis" should be extended to those veterans. Significantly, C&P stated that "[t]his allows for presumptive service connection of the diseases associated with herbicide exposure." The May 2010 bulletin identifies several bases in Thailand, including Ubon RTAFB. C&P indicated that herbicide exposure should be acknowledged on a facts found or direct basis if (1) a United States Air Force veteran served at one of the air bases as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by his or her military occupational specialty, performance evaluations, or other credible evidence; (2) an Army veteran was a member of a military police unit that served at or near a base perimeter in Thailand; or (3) an Army veteran who served on an air base in Thailand and provided perimeter security. The Veteran served at the Ubon RTAFB from July 1966 to August 1967 as an aircraft maintenance specialist. The Board has already found, as a factual matter, that he was exposed to herbicide agents during this time. See May 2018 Board Decision. Therefore, he is presumed to have been exposed to an herbicide agent, and the second element of service connection, incurrence or aggravation of a disease or injury in service, has been satisfied. Certain diseases associated with exposure to an herbicide agent shall be presumed to be service connected even if there is no evidence of the disease in service, provided that the rebuttable presumption provisions of § 3.307(d) are satisfied. 38 C.F.R. § 3.309 (e). In the National Defense Authorization Act for Fiscal Year 2021, three disorders were added to the list of diseases presumptively associated with exposure to herbicide agents. Specifically, 38 U.S.C. § 1116 (a)(2) was amended to include bladder cancer. Because the Veteran has a diagnosis of bladder cancer, and because he is presumed to have been exposed to herbicides in Thailand, under 38 U.S.C. § 1116, it is presumed that his bladder cancer was caused by his exposure to herbicide agents. Id. Based on the above analysis, the Board finds that service connection for bladder cancer is warranted. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD is remanded. Unfortunately, another remand is warranted in this case. The Board sincerely regrets this delay, but further development is necessary in order to adequately adjudicate the Veteran’s claim. The Board remanded the Veteran’s claim in July 2020 for a new medical opinion, with several specific assertions the examiner was asked to opine on. The Board finds the February 2021 medical opinion inadequate to form a decision on for a number of reasons. Firstly, the February 2021 examiner did not comply with the July 2020 remand directive to discuss the Veteran’s assertion that he used food to cope with the psychiatric symptoms of PTSD, which caused weight gain, which caused his obstructive sleep apnea (that obesity is an intermediate step between PTSD and obstructive sleep apnea). See Stegall v. West, 11 Vet. App. 268 (1998) (a remand confers upon the claimant, as a matter of law, the right to compliance with the remand directives); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). Furthermore, similar to the April 2020 addendum opinion which the Board found inadequate, the examiner again based his negative opinion on the fact that the Veteran’s “obstructive sleep apnea and its treatment continued to be present when his weight went down from 273 to 203.” See February 2021 VA Examination. However, a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening, or flare-ups, of a disability). See Ward v. Wilkie No. 17-1204 (Vet. App. June 14, 2019). Further, as noted by the examiner in his April 2020 opinion, the Veteran’s current body mass index (BMI) is 32, which is still considered obese. Therefore, it is irrelevant if the Veteran has lost some weight over the course of the appeal. The issue is whether his obesity is an intermediate step between his PTSD and obstructive sleep apnea. Finally, in correspondence received in March 2021 the Veteran asserts that his service-connected diabetes mellitus is a known catalyst for weight gain resulting in obstructive sleep apnea. On remand, an adequate opinion addressing the deficiencies of the February 2021 examination, as well as the Veteran’s new assertion that his obstructive sleep apnea is secondary to his service-connected diabetes mellitus, is warranted. The matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriate examiner concerning whether the Veteran’s sleep apnea is secondary to his service-connected PTSD. If the examiner determines that additional physical examination of the Veteran is required, so schedule the Veteran. The examiner should opine whether it is at least as likely as not (50% or greater probability) that (i) the Veteran's service-connected PTSD caused or aggravated his obesity; (ii) such obesity was a substantial factor in causing his sleep apnea; and (iii) the current sleep apnea would not have occurred but for obesity caused or aggravated by the service-connected PTSD. In providing this opinion, the examiner must consider the following: (a) the Veteran’s assertion that he used food to cope with his psychiatric symptoms of PTSD, which caused weight gain, which caused his obstructive sleep apnea (that obesity is an intermediate step between PTSD and obstructive sleep apnea); (b) the many medical articles regarding the relationship between PTSD and sleep apnea submitted by the Veteran; (c) the February 1999 comment of a private examiner that the Veteran had sleep apnea, a non-industrial disorder, possibly a side effect from his psychiatric medication used to treat his PTSD; (d) the results of the Veteran’s November 2009 TBI DBQ on which he handwrote that his loss of energy/anergia, changes in sleeping patterns/sleep disturbance, and tiredness/fatigue, noted in the examination report reserved for psychometric testing results and depressive symptoms, were related to sleep apnea and that the medication used to treat his PTSD helped him sleep; and (e) the comment of a private examiner in the September 2015 sleep apnea DBQ that PTSD and major depression were additional diagnoses that pertained to sleep apnea. * In providing the opinion(s) concerning aggravation, the examiner is advised that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening, or flare-ups, of a disability). See Ward v. Wilkie No. 17-1204 (Vet. App. June 14, 2019). Therefore, even though the Veteran lost some weight over the course of the appeal, aggravation is still a possibility. Further, as noted by the examiner in his April 2020 opinion, the Veteran’s current body mass index (BMI) is 32, which is still considered obese. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. 2. Obtain a medical opinion from an appropriate clinician regarding whether the Veteran’s sleep apnea is secondary to his service-connected diabetes mellitus. If the examiner determines that additional physical examination of the Veteran is required, so schedule the Veteran. The examiner should opine whether it is at least as likely as not (50% or greater probability) that (i) the Veteran's service-connected diabetes mellitus caused or aggravated his obesity; (ii) such obesity was a substantial factor in causing his sleep apnea; and (iii) the current sleep apnea would not have occurred but for obesity caused or aggravated by the service-connected diabetes mellitus. • The examiner is directed to specifically comment on the Veteran’s assertion that diabetes is known to be a catalyst for weight gain resulting in obstructive sleep apnea. See March 2021 Statement in Support of Claim. * In providing the opinion concerning aggravation, the examiner is advised that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening, or flare-ups, of a disability). See Ward v. Wilkie No. 17-1204 (Vet. App. June 14, 2019). A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Mohammad 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.