Citation Nr: 22017557 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 19-32 318 DATE: March 25, 2022 ORDER Entitlement to service connection for bladder cancer, to include as due to chemical or toxin exposure at Fort McClellan, is denied. FINDING OF FACT The Veteran's bladder cancer is not related to chemical or toxin exposure, and is not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for bladder cancer, to include as due to chemical or toxin exposure at Fort McClellan, are not met. 38 U.S.C. §§ 1101, 1110, 1131, 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 October 1966 to November 1988, with additional reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript is included in the claims file. The Veteran was afforded the opportunity to submit supporting medical documentation within a 90 day window subsequent to the hearing, but no such evidence has been received. Numerous articles that speak to the various toxins that are associated with Fort McClellan were provided. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). Service connection laws and regulations Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Saunders v. Wilkie, 886 F.3d 1356 (2018). For specific enumerated diseases designated as "chronic" there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The presumptive chronic diseases include bladder cancer. Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For certain diseases with a relationship to herbicide agent exposure, such as bladder cancer, a presumption of service connection arises if the disease manifests to a degree of 10 percent or more following service in the Republic of Vietnam any time during the period from January 9, 1962, to May 7, 1975. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). Absent a presumption based on service in Vietnam, a claimant may establish service connection on a direct basis if the evidence shows that a disability was, in fact, caused by exposure to Agent Orange or some other incident of service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Shinseki, 21 Vet. App. 303, 308 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ('sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer'); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for bladder cancer The Veteran contends his bladder cancer is due to chemical exposure in service at Fort McClellan. See November 2021 Statement in Support of Claim. Specifically, he drank and showered in contaminated water, crawled in the mud, and camped in the woods. See January 2019 Notice of Disagreement. Turning to the evidence, service treatment records (STRs) do not reflect any symptoms, diagnosis, or treatment for bladder cancer. A report of medical examination performed in September 1968 (service separation) shows that findings for all bodily systems were normal. The Veteran did not report any pertinent problems on the report of medical history at that time. Military personnel records show the Veteran was stationed at Fort McClennan, Alabama from November 1966 to January 1967. Post service treatment records show the Veteran was diagnosed with bladder cancer and received surgical treatment in September 2015. In October 2019 and August 2021, the Veteran submitted numerous articles about toxins at Fort McClellan. One article included a VA bulletin which acknowledged the presence of various chemicals and toxins at Fort McClellan during the Veteran's service. However, the bulletin further advised that, although exposures to high levels of these compounds (radioactive compounds, chemical warfare agents, and airborne polychlorinated biphenyls (PCBs)) have been shown to cause a variety of adverse health effects in humans and laboratory animals, there is no evidence of exposures of this magnitude having occurred at Fort McClellan. It cites a 2015 published assessment from the ATSDR. The assessment considered the potential health risks caused by airborne PCBs in Anniston, Alabama and concluded that the concentrations found were "not expected to result in an increased cancer risk or other harmful health effects in people living in the neighborhoods outside the perimeter of the former PCB manufacturing facility." Further stating, there are "currently no adverse health conditions associated with service at Fort McClellan." Overall, the Board finds no probative value in the various articles submitted by the Veteran, as they do not establish the Veteran was exposed in a hazardous way to chemicals or toxins at Fort McClellan. During the August 2021 Board hearing, the Veteran testified during his eight week basic training at Fort McClellan, he drank the water, ate the food, crawled in the mud, and ingested some of the mud. He does not know the specific chemicals he was exposed to. Testimony included having bladder cancer without a family history of it. His representative asserted the Veteran should be afforded a VA examination as there is no medical opinion on file, but there is evidence of a current diagnosis and service at Fort McClellan during the period where toxins were identified. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the current disability is not related to service. The Board recognizes the Veteran was diagnosed with bladder cancer and received surgical treatment in September 2015. Thus, the first element of service connection has been established. See Shedden, 381 F.3d at 1167; 38 C.F.R. § 3.303(a). Regarding presumptive service connection for herbicide agents or other contaminants, the Board finds the presumption inapplicable. The only evidence of any relationship to service is the Veteran's contention that he was exposed to chemicals during basic training at Fort McClellan, supported by articles which do not establish said exposure. Presumptive exposure to herbicide agents or other contaminations is not available for service at Fort McClellan and is not warranted under VA regulations. See November 2021 Rating Decision. Regarding presumptive service connection for a chronic condition, the earliest record of his bladder cancer was a diagnosis in 2015, 27 years after service. Because the evidence does not show bladder cancer as a chronic condition while in service or becoming manifest to a degree of 10 percent or more within one year of separation from active duty, presumptive service connection for a chronic condition is not applicable. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Veteran has only alleged bladder cancer is a result of chemical exposure at Fort McClellan. The Veteran is competent to report his personal recollections of his experiences during basic training, see 38 C.F.R. § 3.159 (a)(2); Layno v. Brown, 6 Vet. App. 465, 46970 (1994), but due to the general nature of the Veteran's statements in relationship to the also generalized evidence he has presented in support of his claim, the Board does not find the evidence of record persuasive that he was factually exposed to a hazardous level environmental toxins during basic training at Fort McClellan. The Veteran has not identified a specific chemical or toxin to which he knows he was exposed, rather he claims that he had to have been exposed to something because there is evidence that toxins were present in the area. The evidence fails to establish that the Veteran's training activities in the mud, woods, and water, were conducted in specific locations of the 45,000 acres comprising Fort McClellan that were known to be contaminated, if there were any, by herbicide agents. He has not provided any other correlation to service and there is no competent and credible evidence of chemical or toxin exposure. The Board finds the second element of direct service connection has not been established. See Shedden, 381 F.3d at 1167; 38 C.F.R. § 3.303(a). The Board acknowledges VA has not afforded the Veteran a comprehensive medical examination for bladder cancer. However, the Board finds that such an examination is not necessary to render a decision under the circumstances of this case. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). Under McClendon, in disability compensation claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Id. As discussed above, the evidence does not demonstrate the Veteran was exposed to a hazardous level chemicals or toxins, including herbicide agents such as Agent Orange, during active duty service. The Veteran has not alleged his disability, bladder cancer, had its onset during service and/or is the result of an incident during service, other than the alleged exposure to chemicals or toxins, or within the time prescribed by law for presumptive service connection for specified chronic diseases. As such, the second and third elements of McClendon are not satisfied, and thus, VA examinations addressing this disability is not required. See also Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (finding that VA is not required to provide a medical examination when there is no credible evidence of an event, injury, or disease in service). Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for bladder cancer is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.M. Edwards, Associate Counsel 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.