Citation Nr: 22003003 Decision Date: 01/20/22 Archive Date: 01/20/22 DOCKET NO. 17-65 862 DATE: January 20, 2022 REMANDED 1. Entitlement to an effective date earlier than March 14, 2017 for the grant of service connection for bladder cancer is remanded. 2. Entitlement to an initial disability rating in excess of 10 percent for bladder cancer prior to October 17, 2017 is remanded. REASONS FOR REMAND The Veteran had active service from March 1956 to March 1958, with service at Camp Lejeune, North Carolina, from September 1957 to March 1958. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a November 2019 hearing. These matters were previously denied by the Board in October 2020, after which the Veteran appealed the matters to the United States Court of Appeals for Veterans Claims (Court). In July 2021, the Veteran and the Secretary of VA (parties) filed a Joint Motion for Partial Remand (Joint Motion), which was granted by the Court that same month. The matters are now returned to the Board, and as discussed further below, they are remanded for development consistent with the July 2021 Joint Motion. 1. Entitlement to an effective date earlier than March 14, 2017 for the grant of service connection for bladder cancer is remanded. Within the July 2021 Joint Motion, the parties agreed that the Board's October 2020 decision erred when it failed to ensure substantial compliance with its prior remand directives concerning a relevant VA examination of record. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the parties noted that the Board's October 2020 decision found that the date entitlement arose to service connection for bladder cancer was March 14, 2017, based on the date of a change in law to add bladder cancer as a presumptive condition due to exposure to contaminants at Camp Lejeune; however, the Board failed to ensure proper development as to direct service connection compliant with its prior October 2015 remand. Therein, the Board required a VA examiner's addendum on nexus to be obtained, with full assessment of the claims file, to include the Veteran's specific history and a November 2013 positive nexus opinion of Dr. Stanley H. Shrom. The parties noted that an October 2017 VA examiner stated the documents from 1998 to 2004 were not available, and that the Veteran's smoking history was not available, indicating that the examiner did not render his opinion with the benefit of the full claims file. Additionally, the VA examiner did not address Dr. Shrom's nexus opinion, treatment records from 1998 through 2004, or facts specific to the Veteran's history. As such, the parties agreed that the October 2017 VA examiner did not provide an adequate nexus opinion, in violation of the Board's prior October 2015 remand directives. Given the above, the Board finds that an adequate VA medical opinion must be obtained regarding direct service connection, which is based on a review of the Veteran's medical history and addresses his specific facts and Dr. Shrom's nexus opinion, in compliance with the Board's October 2015 remand directives. 2. Entitlement to an initial disability rating in excess of 10 percent for bladder cancer prior to October 17, 2017 is remanded. The parties further agreed in the July 2021 Joint Motion that the issue of an initial disability rating in excess of 10 percent prior to October 17, 2017 must be remanded as intertwined with the claim for an effective date earlier for the grant of service connection for bladder cancer, which is being remanded for an adequate medical opinion as discussed above. See Henderson v. West, 12 Vet. App. 11, 20 (1998) quoting Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Finally, the parties agreed that the Board's October 2020 decision incorrectly applied the law when it stated that the issue of entitlement to special monthly compensation (SMC) benefits based upon the loss of use of a creative organ was currently not before it because the Veteran did not file a formal claim. See Payne v. Wilkie, 31 Vet. App. 373, 381 (2019) (holding that a formal claim is not required to assert entitlement to ancillary benefits, such as SMC(k)). As such, the Board finds that the RO should also consider the intertwined claim of entitlement to SMC based upon the loss of use of a creative organ upon remand. The Board notes that the VA treatment records from October 2000 to January 2021 do not document erectile dysfunction. The matters are REMANDED for the following action: 1. Request that the Veteran submit a statement under penalty of perjury describing his smoking history, which should include the following: (i) how many packs per day of cigarettes he smoked; (ii) what year he started smoking cigarettes; (iii) what year he stopped smoking cigarettes; (iv) how many cigars per day he smoked; (v) what year he started smoking cigars; and (vi) what year he stopped smoking cigars. 2. After receiving the Veteran's statement, refer the claims file to an appropriate VA medical examiner for an addendum opinion to determine if the Veteran's bladder cancer is related to service. The examiner must be provided access to the Veteran's claims file. If the examiner finds that an in-person examination is needed to provide an informed opinion, then schedule an examination. The agency of original jurisdiction is asked to provide the below facts to the examiner. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, when applicable: The Veteran had active service from March 1956 to March 1958, with service at Camp Lejeune, North Carolina, from September 1957 to March 1958. The Veteran was presumptively exposed to Camp Lejeune contaminated water. As of March 14, 2017, bladder cancer has been determined to be presumptively associated with exposure to contaminants present in the water supply at Camp Lejeune. A September 2013 VA opinion found that the Veteran's transitional cell carcinoma of the bladder was less likely as not caused by or result of Veterans exposure to Camp Lejeune contaminated water. The examiner stated that there was "no documentation in the chart as to whether the [V]eteran ever smoked or what occupations he may have engaged in;" however, the examiner noted that among the "numerous risk factors for urothelial bladder cancer, the most important one is cigarette smoking" and that the "overwhelming majority of bladder cancers in the United States are due to cigarette smoke," which is estimated at 50 to 80 percent, with even "exposure to second hand smoke appearing to cause increased risk for the development of bladder cancer." See VBMS entry with document type, "Medical Opinion," receipt date 09/02/2013. A November 2013 private opinion from Dr. Stanley H. Shrom, M.D., notes that the Veteran was a patient of his who developed transitional cell carcinoma of the bladder, and that the Veteran was never a smoker or tobacco user. Dr. Shrom stated that the Veteran was at Camp Lejeune in the late fifties and concluded that it is likely that the contaminated water there contributed to his development of bladder cancer. See VBMS entry with document type, "Medical Treatment Record - Non-Government Facility," receipt date 11/22/2013. However, the statement from Dr. Shrom that the Veteran was never a smoker or tobacco user is not supported by the VA treatment records, which facts within the treatment records are described below. VA treatment records document the Veteran's varying reports regarding his history of tobacco use. For example, VA treatment records from October 2000 to November 2003 document that the Veteran consistently reported he was an "ex-smoker." See VBMS entry with document type, "CAPRI," receipt date 01/21/2014, pp. 244 (November 2003), 252 (January 2002), 259 (December 2000, 263 (October 2000). In May 2002, the Veteran reported that he used to smoke, but that he quit over 7 years ago. See VBMS entry with document type, "CAPRI," receipt date 01/21/2014, p. 251 (top of page). In January 2005, the Veteran reported that he quit using tobacco 30 years ago, and that he "used to smoke" a couple of cigars per day. See VBMS entry with document type, "CAPRI," receipt date 01/21/2014, p. 230 (under Social History). From May 2005 to July 2006, it was repeatedly documented that the Veteran smoked cigars. The April 2006 entry would indicate he was still smoking cigars. See VBMS entry with document type, "CAPRI," receipt date 01/21/2014, pp. 218 (July 2006), 222 (April 2006), 224 (November 2005), 227 (May 2005). In August 2006, the Veteran reported that he had "never smoked." See VBMS entry with document type, "CAPRI," receipt date 01/21/2014, pp. 209 (under "Social Hx") & 215 (under "Substance Use Screen"). A separate August 2006 VA treatment record shows the Veteran reported he quit cigars in 1998. It also showed a family history that documented his mother died at age 76 of emphysema, his father died at age 76 of unsure cause (but it was noted that he smoked), his brother died at age 52 of lung cancer, and his sister died at age 75 of emphysema. See VBMS entry with document type, "CAPRI," receipt date 01/21/2014, p. 186. From May 2009 to November 2013, the Veteran consistently reported that he stopped smoking cigars in 1998. See VBMS entry with document type, "CAPRI," receipt date 01/21/2014, pp. 13 (November 2013, under "Social History"), 23 (November 2012, under "Social History"), 55 (June 2012, under "Social History"), 60 (November 2011, under "Social History"), 75 (November 2010, under "Social History"), 83 (June 2010, under "Social History"), 108 (November 2009, under "Social History"), 120 (May 2009, under "Social History"). In October 2017, a VA examiner conducted a records review and rendered a requested nexus opinion related to contaminated water at Camp Lejeune. Notably, the examiner stated that the Veteran's history of smoking was "unknown," that "[d]ocuments from diagnosis in 1998 to 2004 are not available," and that there was "no known history of cancer in [the Veteran's] family." Concerning exposure to contaminated water, the examiner explained that further complicating the determination is the inability to quantify actual exposures because of the differing absorption and inhalation from activities like bathing and hygiene. He wrote that based on various studies that the probability of the Veteran's particular claimed condition resulted from in-service exposure did not rise to the level of certainty to support an "at-least-as-likely-as-not" association. However, the examiner ultimately recognized that the Secretary of VA had established a list of presumptive conditions for service connection was warranted based upon exposed to contaminated water at Camp Lejeune between August 1, 1953 and December 31, 1987, and that the condition claimed by the Veteran, bladder cancer, was now included among those identified by the Secretary of the VA as a presumptive condition, and should therefore be adjudicated accordingly. See VBMS entry with document type, "C&P Exam," receipt date 10/27/2017. The Veteran has been asked to submit a statement under penalty of perjury describing his smoking history, which should include the following: (i) how many packs per day of cigarettes he smoked; (ii) what year he started smoking cigarettes; (iii) what year he stopped smoking cigarettes; (iv) how many cigars per day he smoked; (v) what year he started smoking cigars; and (vi) what year he stopped smoking cigars.. Thus, this statement will have been added to the file in or after January 2022. The examiner's review of the record is NOT restricted to the evidence listed above. This list is provided to assist the examiner in locating potentially relevant evidence. Following a review of the complete claims file, including the evidence discussed above, the examiner is asked to opine whether the Veteran's bladder cancer is directly related to his active service, to include contaminated water? Please explain upon what facts, medical principles, and/or medical literature the opinion is based. In rendering the requested medical opinion, the examiner must specifically address the Veteran's prior medical history (including his documented history of tobacco use), and the November 2013 private nexus opinion of Dr. Shrom. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Following the above development, readjudicate the Veteran's claims on appeal, including the intertwined claims of entitlement to an initial disability rating for bladder cancer in excess of 10 percent prior to October 17, 2017 and entitlement to SMC benefits based upon the loss of use of a creative organ. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Chad Johnson 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.