Citation Nr: 21029748 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 18-55 368 DATE: May 14, 2021 REMANDED Entitlement to service connection for bladder cancer is remanded. Entitlement to service connection for traumatic brain injury (TBI) is remanded. The issue of whether the rating reduction from 50 percent to 30 percent for posttraumatic stress disorder (PTSD), effective July 1, 2019, was proper, is remanded. Entitlement to a rating in excess of 50 percent from February 21, 2017, and in excess of 30 percent from July 1, 2019, for PTSD, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1966 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision. During the pendency of the appeal, in an April 2019 rating decision, the Regional Office (RO) reduced the Veteran's disability rating for PTSD from 50 to 30 percent, effective July 1, 2019. In an August 2019 decision, the Board took jurisdiction of the issue of whether the reduction was proper as part and parcel of the current appeal because the claim of increased rating for PTSD covers the period prior to, during, and after the reduction. In the August 2019 decision, the Board denied entitlement to service connection for bladder cancer and residuals of TBI, found the rating reduction from 50 percent to 30 percent for PTSD was proper, and denied higher ratings for PTSD, among other things. The Veteran appealed to the United States Court of Appeals for Veterans Claims (the Court). In January 2021, the Court granted the parties' January 2021 Joint Motion for Partial Remand (JMPR) to vacate the August 2019 Board decision as to these issues and to remand the matter for further development and readjudication. 1. Entitlement to service connection for bladder cancer is remanded. The Veteran seeks service connection for bladder cancer as secondary to herbicide agent exposure during his Vietnam service. As indicated in the January 2021 JMPR, a November 2018 VA treatment record notes that the Veteran has a diagnosis of "Bladder cancer- clinically stable and managed by Urology" and May 2019 VA treatment records regarding a cystoscopy and bladder wash note a pre-operative and post-operative diagnosis of bladder cancer. The Veteran served in Vietnam and is presumed exposed to herbicide agents during such service. Although VA has not conceded a presumptive relationship between bladder cancer and herbicide agents, the National Academy of Sciences (NAS) has placed bladder cancer in a "sufficient evidence" category as of the 2018 Update. That is, although bladder cancer 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 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, No. 2020-1072, 2021 U.S. App. LEXIS 6188 (Fed. Cir. Mar. 3, 2021). Accordingly, remand is appropriate to obtain VA medical opinion regarding whether the Veteran has a bladder cancer disability related to his service, to include his presumed herbicide agent exposure. 2. Entitlement to service connection for TBI is remanded. The Veteran seeks service connection for residuals of TBI. He reported that he was exposed to a large blast striking a bunker he was in that threw him against a wall and caused a brief period of loss of consciousness. He reported mild headaches and other symptoms when he returned from deployment. The Veteran underwent VA examination in relation to his TBI claim in April 2017. As indicated in the January 2021 JMPR, the April 2017 VA examination report attributed the Veteran's symptoms, such as memory problems and gait ataxia, to the Veteran's nonservice-connected multiple sclerosis (MS) rather than TBI residuals. However, the VA examiner did not provide an explanation for such a finding. In the January 2021 JMPR, the parties agreed that the April 2017 VA examination is not adequate. "[An adequate] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Accordingly, remand is warranted to obtain additional VA medical opinion regarding the Veteran's claimed TBI residuals. 3. The issue of whether the rating reduction from 50 percent to 30 percent for PTSD, effective July 1, 2019, was proper, is remanded. 4. Entitlement to a rating in excess of 50 percent from February 21, 2017, and in excess of 30 percent from July 1, 2019, for PTSD, is remanded. The Veteran seeks higher ratings for his PTSD disability. As indicated in the January 2021 JMPR, the October 2018 VA psychiatric examiner found the Veteran's PTSD was "quiescent, in a state of inactivity." However, statements from the Veteran and his wife show current symptomatology. The October 2018 VA examiner failed to provide a rationale for the finding that the Veteran's PTSD was quiescent. As agreed in the January 2021 JMPR, the October 2018 VA examination report is not adequate and remand is necessary for a new examination. Accordingly, this matter is remanded to obtain a new VA examination to assess the current severity of the Veteran's service-connected psychiatric disability. While this matter is on remand, outstanding VA treatment records should be obtained, including VA treatment records from December 2020 to the present. The matters are REMANDED for the following action: 1. Obtain any additional VA treatment records, to include VA treatment records from December 2020 to the present. Associate with the claims file all potentially relevant documents scanned into Vista Imaging or CPRS but not associated with the Veteran's claims file. 2. After outstanding treatment records are obtained to the extent possible, ask the appropriate examiner (for bladder cancer) to review the Veteran's file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should identify any bladder cancer or residuals of bladder cancer disability the Veteran experienced during the claims period (from February 2017 to the present), even if resolved. The examiner should specifically address the November 2018 VA treatment record noting that the Veteran has a diagnosis of "Bladder cancer- clinically stable and managed by Urology" and the VA treatment records regarding a cystoscopy noting a pre-operative and post-operative diagnosis of bladder cancer. For such disability, the examiner should opine regarding whether it is at least as likely as not (a 50 percent or greater probability) that the disability is related to service, to include the Veteran's presumed herbicide agent exposure during service in Vietnam. The examiner should consider all medical and lay evidence of record, including the article submitted by the Veteran regarding a link between agent orange exposure and increased mortality due to bladder cancer. In rendering the opinion, the examiner is reminded that the fact that bladder cancer 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 examiner should consider the Veteran's specific military history, medical history, risk factors, and any other circumstances deemed relevant by the examiner 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 bladder cancer and herbicide agent exposure in rendering an opinion. See NAS 2018 Update. The examiner is asked to explain the reasons behind any opinions expressed. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. After outstanding treatment records are obtained to the extent possible, ask the appropriate examiner (for TBI) to review the Veteran's file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should identify any TBI residuals disability the Veteran experienced during the claims period (from February 2017 to the present), even if resolved. The examiner should specifically address the Veteran's memory problems and gait ataxia as well as the Veteran's March 2019 report of symptomatology. If the examiner attributes the Veteran's symptoms to a disability other than TBI (such as multiple sclerosis (MS)), the examiner should provide a rationale for such an opinion and whether any manifestations specific to TBI can be differentiated from that caused by other conditions. For any TBI disability, the examiner should opine regarding whether it is at least as likely as not (a 50 percent or greater probability) that the disability is related to service. The examiner should consider all medical and lay evidence of record, including the Veteran's report that he was exposed to a large blast striking a bunker he was in that threw him against a wall and caused a brief period of consciousness and the Veteran's report of mild headaches and other symptoms when he returned from deployment. The examiner is asked to explain the reasons behind any opinions expressed. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. After outstanding treatment records are obtained to the extent possible, schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected psychiatric disability. The entire claims file should be reviewed by the examiner and any appropriate tests conducted. The Veteran's symptomatology and functional impairment should be described in detail. The examiner should specifically comment on the Veteran's March 2019 report of symptomatology and his spouse's April 2019 reports. 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Purcell 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.