Citation Nr: A23003810 Decision Date: 02/23/23 Archive Date: 02/23/23 DOCKET NO. 230105-310856 DATE: February 23, 2023 ORDER Entitlement to service connection for bladder cancer is granted. Entitlement to service connection prostate cancer is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's bladder cancer is related to service. 2. The evidence is at least evenly balanced as to whether the Veteran's prostate cancer is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bladder cancer have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection prostate cancer have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1961 to January 1964. This case comes to the Board of Veterans' Appeals (Board) on appeal from January 2022 and March 2022 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In the January 2022 rating decision, the RO denied entitlement to service connection for bladder cancer and prostate cancer. In the March 2022 rating decision, the RO continued the denial of service connection for bladder cancer. In January 2023, the Veteran submitted a VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement)) and requested direct review by the Board. U.S.C. § 7113(a); 38 C.F.R. § 20.301. The Veteran, through his attorney, submitted January 2023 correspondence waiving his right to any further duty to assist efforts, including any pre-decisional duty to assist errors in the matter before the Board. The attorney explained that the record is complete, the evidence supports a grant, and that rather than adding to the delay by remanding the matter for a pre-decisional duty to assist error, the Board should render a decision granting the benefits sought. For the following reasons, the Board agrees and will grant the benefits sought. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in the active military, naval, air, or space service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Bladder Cancer / Prostate Cancer The Veteran contends that his bladder and prostate cancers are due to exposure to Agent Orange in service, as a C-123 that is known to be associated with the spraying of herbicide agents was assigned to his unit and he jumped from C-123 aircraft. In an alternative theory, the Veteran contends that his cancers are due to exposure to polyfluoroalkyl substances (PFAS) during his service at Fort Bragg, North Carlina. In this case, the evidence of record demonstrates that the requirement for a current disability has been met. Specifically, September 2020 VA examination reports shows diagnoses of bladder cancer and prostate cancer. Thus, the first element of service connection has been satisfied with regard to each claim. The Veteran's service treatment records (STRs) include line of duty (LOD) determinations for urethritis due to infection in December 1962 and July 1963. The STRs are negative of complaints, treatment, or findings of bladder cancer and prostate cancer. In September 2021, the Veteran's representative submitted argument and pertinent evidence about the presence of polyfluoroalkyl substances (PFAS) on military bases, including Fort Bragg, as well as the medical effects of PFAS. The article, " FOIA Data : Tap Water at 28 Military Bases Tainted with 'Forever Chemicals' Above States' Safety Standards," detailed that, as of 2020, "more than 600 military sites and surrounding communities may have drinking water or groundwater contaminated by PFAS. . .Among the most contaminated sites. . . are Fort Bragg, in North Carolina..." The article went onto state that some PFAS chemicals have been "linked to cancer, liver damage and harm to reproductive and immune systems...Because they build up on our bodies and do not break down in the environment, they have become known as "forever chemicals." "The primary source of PFAS pollution at military bases is PFAS-based firefighting foam, known as AFF." The representative cited studies: "Mapping PFAS Chemical Contamination at 206 U.S Military Sites" and "History and Use of [PFAS]" confirmed that PFAS containing firefighting foam was in widespread use in the 1960s. The Veteran's DD Form 214 indicates his MOS was field command crewman and his was stationed at Fort Bragg, North Carolina from January 30, 1961 to January 20, 1964. Given the pertinent evidence about the presence of PFAS on Fort Bragg military base during the Veteran's service, as well as the medical effects of PFAS, the evidence is approximately evenly balanced as to whether he was exposed to PFAS during his military service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that he was exposed to PFAS during his military service. 38 C.F.R. § 3.102 (benefit of the doubt doctrine applies to any point within a claim and not merely its ultimate disposition). Thus, the second element of service connection has been satisfied with regard to each claim. In a September 2020 VA examination report, the examiner opined that the Veteran's bladder cancer was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner explained the evolution bladder cancer from cells mutations in their DNA and how they metastasize through the body. The examiner further explained the risk factors for this condition include smoking, increased age, being male, exposure to certain chemicals, chronic bladder inflammation, and personal or family history of cancer. The examiner noted that the Veteran's STRs from 1961 to 1964 were silent for complaint of bladder condition, and a diagnosis of bladder cancer as a result of recurring hematuria was not until 2005. The examiner indicated that treatment for acute urethritis noted on encounters dated December 1962 and July of 1963 were attributed to a gonococcal infection. The examiner further indicated that this acute condition is not a known risk factor for the Veteran's bladder condition (cancer) The examiner also opined that the Veteran's prostate cancer was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner explained the evolution of prostate cancer in men, noting that it is not clear what causes prostate cancer. The examiner further explained that known risk factors include age, race, family history, and obesity. The examiner stated that the Veteran's STRs from 1961 to 1964 were silent for complaint of prostate symptoms. The examiner further stated that no noted complaint of prostate condition until an incidental finding of prostate mass in 1996 and subsequent diagnosis of prostate cancer the same year. The examiner indicated that treatment for acute urethritis was noted on encounters dated December 1962 and July of 1963, and these conditions were attributed to a gonococcal infection. The examiner further indicated that his acute condition is not a known risk factor for the Veteran's prostate conditions (Cancer with subsequent radical prostatectomy). The September 2020 VA opinion that the Veteran's bladder and prostate cancers are unrelated to service is of little, if any, probative value. Specifically, the VA opinions failed to provide an opinion as to whether the Veteran's cancers are related to exposure to PFAS during his service at Fort Bragg, North Carlina. Given the lack of an adequate medical opinion, there is no evidence contrary to a relationship between the current disabilities and service. The Court has indicated that treatise evidence may suffice to establish nexus in instances where "standing alone, [it] discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion." Sacks v. West, 11 Vet. App. 314, 317 (1998). The submitted medical articles and studies discusses the relationship between cancer and PFAS exposure with a degree of certainty that there is at least plausible causality between bladder and prostate cancers and PFAS exposure. Therefore, this literature is of some probative weight pursuant to the reasoning of Sacks. At this point, a request for another medical opinion when the Veteran has waived compliance to any pre-decisional duty to assist errors, could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) (The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination); Andrews v. McDonough, 34 Vet. App. 216, 225 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"). Given the specificity of the medical literature about the presence of PFAS at Fort Bragg and PFAS chemicals having been linked to cancer and the absence of any evidence reflecting other causes of the Veteran's cancer, the evidence is at least evenly balanced in this particular case as to whether the Veteran's cancers are related to his exposure to PFAS while stationed at Fort Bragg. Thus, resolving the reasonable doubt created by this relative equipoise in the evidence in the Veteran's favor, service connection is warranted for bladder cancer and prostate cancer. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Walker, 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.