Citation Nr: 22012148 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 17-28 712 DATE: March 2, 2022 ORDER Entitlement to service connection for bladder cancer is granted. FINDING OF FACT The Veteran's bladder cancer is etiologically related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for bladder cancer are met. 38 U.S.C. §§ 1110, 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 September 1985 to August 2006 in the United States Air Force. The Veteran primarily served as a nondestructive inspection craftsman while on active duty. Nondestructive Inspection specialists utilize equipment such as x-rays and ultrasound to identify possible defects in systems and equipment to keep equipment operating safely. As a preliminary matter, in August 2021, the Veteran testified at a Board hearing before Veterans Law Judge (VLJ) Susan Kennedy. A transcript of that hearing is associated with the evidence of record. Subsequently, VA sent the Veteran a letter indicating that VLJ Kennedy has since retired, and that the Veteran had the opportunity to testify at an additional optional hearing before a VLJ who would decide his claim. See 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707. The Veteran waived his right to testify before another VLJ. Service connection for bladder cancer The Veteran contends that his bladder cancer is due to exposure to ionizing radiation and chemical exposure, specifically due to his use of X-Ray equipment and cleaning solvents he used to clean and check different parts of the aircraft, during service. See January 2017 notice of disagreement. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-elements required to establish service connection are: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also 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). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has been diagnosed with bladder cancer. Malignant tumors are an enumerated condition under 38 C.F.R. § 3.309 (a); Walker, 708 F.3d 1331. However, bladder cancer was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Further, the Veteran does not contend, nor does the evidence reflect, that he had continuous symptoms of bladder cancer since his discharge from service. Service treatment records are negative for a bladder cancer diagnosis in service, and laboratory findings related to his genitourinary system were normal throughout his active service. Private treatment records show the Veteran was not diagnosed with bladder cancer until 2010, four years after his separation from service. See July 2014 VA medical record, noting that the Veteran was diagnosed with bladder cancer in 2010 by private physician, Dr. P. Service connection for a disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. See Davis v. Brown, 10 Vet. App. 209, 211 (1997). First, cancer of the urinary tract, including the urinary bladder, is presumptively service-connected specific to radiation-exposed Veterans. 38 U.S.C. § 1112 (c); 38 C.F.R. § 3.309 (d). Second, "radiogenic diseases" such as urinary bladder cancer may be service-connected pursuant to 38 C.F.R. § 3.311. Third, service connection may be granted under 38 C.F.R. § 3.303 (d) when it is established that the disease diagnosed after discharge is the result of exposure to ionizing radiation during active service. The United States Court of Appeals for Veterans Claims (Court) has held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994)). A "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309 (d)(3) as a veteran who, while serving on active duty, active duty for training, or inactive duty training, participated in a radiation-risk activity. The Court has taken judicial notice that radar equipment emits microwave-type, non-ionizing radiation, see Rucker v. Brown, 10 Vet. App. 67, 69, 71-72 (1997), and non-ionizing exposure from radar equipment is not the type of radiation exposure addressed by the VA regulations found at 38 C.F.R. §§ 3.309 and 3.311. When it has been determined that a veteran has been exposed to ionizing radiation in service, and he subsequently develops a potentially radiogenic disease, the claim will be referred to the Under Secretary for Benefits for further consideration. The Under Secretary is to consider the claim with reference to specified factors and may request an advisory medical opinion from the Under Secretary for Health; if, after this consideration, the Under Secretary determines that there is no reasonable possibility that the veteran's disease resulted from radiation exposure in service, the Under Secretary shall so inform the RO in writing, setting forth the rationale for this conclusion. 38 C.F.R. § 3.311. By a letter dated in September 2015, the U.S. Department of the Air Force (USAF) stated that it had reviewed the occupational radiation exposure monitoring records in the USAF Master Radiation Exposure Registry (MRER) for the Veteran, and found the total effective dose equivalent (TEDE) to be 0.258 rem. In comparison, according to 10 C.F.R. § 20.1201, the annual TEDE limit for occupationally exposed individuals is 5 rem per year. In October 2015, the VA issued an advisory opinion from the Under Secretary that advised that it was unlikely that the Veteran's bladder cancer resulted from exposure to ionizing radiation in service. The veteran was 21 years old when he was initially exposed to ionizing radiation. Bladder cancer was diagnosed approximately 14 years after his initial exposure in February 2010. In February 2010, the Veteran was diagnosed with a bladder cancer. He had 10 tumors in his bladder and was treated by a private physician. VA treatment records note that the Veteran was treated for his bladder cancer by a private physician and that he was under surveillance to note if the cancer spread since his initial diagnosis. See July 2014 VA treatment note. During his August 2021 Board hearing, the Veteran testified that he had been exposed to fuels, oils, and chemicals during his 21 years of active service. He stated that he never smoked cigarettes, took recreational drugs, and that he avoided unhealthy foods. Also, he noted that he worked with an X-ray machine aboard aircraft without the use of exposure badges or protective equipment. Also, during his service in support of Desert Storm, Vigilant Warrior, or in support of Haiti, the Veteran stated he was not issued an exposure badge. In November 2021, a board-certified urologist, and the Veteran's treating physician, opined that it is more likely than not (greater than a 50 percent probability) that the Veteran's bladder cancer directly resulted from his military service due to frequent and excessive exposure to a variety of chemicals during his 21 years as a nondestructive inspection craftsman. The physician examined the Veteran and reviewed the claims file. The Veteran developed bladder cancer in his early 40s, which is a very young age to develop bladder cancer. In the physician's experience and in medical literature, it is known that bladder cancer is an exposure related malignancy. Most commonly, it is related to cigarette smoking; however, there is no significant smoking exposure in the Veteran's history. Other risks include chemical exposure through occupation. It is believed that as many as 20 percent of all bladder cancer in industrialized countries is attributed to chemical exposure through occupation. The Veteran had been exposed to trichloroethylene, a known category 1A carcinogen, naptha which has benzene as a listed ingredient which is also known to increase bladder cancer risk. He also had exposure to petroleum distillate, aircraft paint, as well as aircraft fuels and oils. It is also known that patients with bladder cancer related to occupational exposure tend to develop at younger ages which in fact the Veteran was quite young at the time of his diagnosis. Repeated and excessive exposure to these variety of chemicals was a perfect recepie for the Veteran to develop bladder cancer. See International Agency for Research on cancer, Int. J. Cancer: 140 1736-1746 (2017). During active service, the Veteran had frequent lower abdomen pain, fatigue, and noticed blood in his urine. After considering the opinion as a whole and in the context of the record, the Board finds that the November 2021 board-certified urologist's conclusion provides probative value as it addresses the medical issues in this case and was based on an analysis of the evidence and current medical understanding. See Acevedo v. Shinseki, 25 Vet. App. 289, 294 (2012) (stating that medical reports must be read as a whole and in the context of the evidence of record). There is also no negative opinion to weigh against Dr. A.D.'s conclusion. (Continued on the next page) Consequently, the weight of the evidence supports finding that the Veteran's bladder cancer is related his in-service exposure to chemicals. Entitlement to service connection for bladder cancer is therefore granted. As the Board is granting service connection on this basis, it is unnecessary to consider any other theory of entitlement. Danette Mincey Veterans Law Judge Board of Veterans' Appeals J. Costello - Attorney for the Board of Veterans' Appeals 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.