Faces of Agent Orange – RETRACTION: No, bladder cancer has not been added to “the list” of presumptive Agent Orange related diseases. The last IOM report found inadequate evidence on bladder cancer. However, some individual cases have been granted by VA and the Board of Veterans Appeals due to expert medical opinions, including one that was due to Agent Orange and diesel fuel. To file a claim contact your nearest VA Service Office.
Dr. Lamm, indicated that it was apparent that the veteran had been exposed to Agent Orange and diesel fuel. He further noted that diesel fuel exposure was a well recognized bladder carcinogen. Dr. Lamm stated that the veteran’s early onset of highly aggressive bladder cancer coupled with his lack of genetic or other environmental causes, it was highly probable that his malignancy and current bladder disability were related to Agent Orange and diesel fuel exposures.
Service connection for bladder cancer, as due to Agent Orange Exposure and/or diesel fuel exposure is granted.
Citation Nr: 0717857
Decision Date: 06/14/07 Archive Date: 06/26/07
DOCKET NO. 05-12 585 ) DATE
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Philadelphia, Pennsylvania
Entitlement to service connection for bladder cancer, to
include as due to Agent Orange exposure and/or diesel fuel
Appellant represented by: A. Ray Martin and Robert D.
WITNESSES AT HEARING ON APPEAL
Appellant and a former service comrade
ATTORNEY FOR THE BOARD
J. D. Deane, Counsel
The veteran had active military service from January 1969 to
This appeal to the Board of Veterans’ Appeals (Board)
initially arose from a July 2003 rating decision that denied
service connection for bladder cancer. The veteran filed a
notice of disagreement (NOD) in June 2004, and the RO issued
a statement of the case (SOC) in March 2005. The veteran
filed a substantive appeal (via a VA Form 9, Appeal to the
Board of Veterans’ Appeals) in April 2005.
In March 2006, the veteran and his former service comrade
testified during a video conference hearing before the
undersigned Veterans Law Judge; a transcript of the hearing
is of record. After the hearing, the veteran (through one of
his agents) submitted to the Board copies of additional
documents previously submitted to, but not reviewed by, the
RO. Given the Board’s favorable disposition of the claim (as
indicated below), the veteran is not prejudiced by the
Board’s consideration of this evidence, in the first
FINDINGS OF FACT
1. All notification and development actions needed to fairly
adjudicate the claim on appeal have been accomplished.
2. Service records establish that the veteran served in the
waters offshore of Vietnam during the Vietnam era, and he and
a former service comrade have credibly asserted the veteran’s
visitation to the Republic of Vietnam, as well as the
veteran’s exposure to diesel fuel, during the time frame in
3. Although the veteran’s exposure to herbicides, to include
Agent Orange, is presumed, his diagnosed bladder cancer is
not among the disabilities recognized by VA as associated
with such exposure.
4. Uncontroverted medical opinions collectively indicate
that the veteran’s in-service exposure to Agent Orange and/or
diesel fuel caused or contributed substantially to the
development of bladder cancer.
CONCLUSION OF LAW
Resolving all reasonable doubt in the veteran’s favor, the
criteria for service connection for bladder cancer, as due to
Agent Orange exposure and/or diesel fuel exposure, are met.
38 U.S.C.A. §§ 1110, 1113, 1116, 5103, 5103A, 5107 (West 2002
& Supp. 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126
(West 2002 and Supp. 2006) include enhanced duties to notify
and assist claimants for VA benefits. VA regulations
implementing the VCAA have been codified, as amended at
38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2006).
Considering the service connection claim on appeal in light
of the above, and in view of the Board’s favorable
disposition of the claim, the Board finds that all
notification and development action needed to fairly
adjudicate the claim on appeal has been accomplished.
Service connection may be granted for disability resulting
from a disease or injury incurred in or aggravated in the
line of duty while in the active military, naval, or air
service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §
3.303(a) (2006). Service connection may be established for
any disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes the disease
was incurred in service. See 38 C.F.R. § 3.303(d) (2006).
Absent affirmative evidence to the contrary, there is now a
presumption of exposure to herbicides (to include Agent
Orange) for all veterans who served in Vietnam during the
Vietnam Era (the period beginning on January 9, 1962, and
ending on May 7, 1975). “Service in the Republic of
Vietnam” includes service in the waters offshore and service
in other locations if the conditions of service involved duty
or visitation in the Republic of Vietnam. See 38 U.S.C.A. §
1116(f) (West 2002) and 38 C.F.R. § 3.307(a)(6)(iii) (2006).
In this case, the veteran asserts that he served aboard a
naval vessel that was stationed in the waters offshore of
Vietnam. The veteran further states that he disembarked the
vessel in Vietnam several times for shore assignments,
including on April 8, 1970 for briefings in Da Nang, Vietnam.
Service personnel records indicate that the veteran was
awarded the Vietnam Service Medal with one Bronze Star as
well the Republic of Vietnam Campaign Medal for services on
board the U.S.S. Josephus Daniels from April 9, 1970 to
September 8, 1970. The veteran’s DD Form 214 reflects that
his military occupational specialty (MOS) was Radio Operator.
When asked to furnish dates of service in Vietnam for the
veteran, the National Personnel Records Center (NPRC)
informed VA in February 2003 that the veteran was on board
ships in the official waters of Vietnam from April 9, 1970 to
May 6, 1970, from May 25, 1970 to June 26, 1970, from July
15, 1970 to August 8, 1970, and from August 27, 1970 to
September 1970. The NPRC further indicated that the
veteran’s personnel record did not contain enough information
to make a definitive statement regarding in country service.
Deck/ship logs from the Department of the Navy were
associated with the record and show that the U.S.S. Josephus
Daniels was anchored in Da Nang Harbor, Vietnam for 6 1/2 hours
on April 8, 1970. A 1970 chronology report for the U.S.S.
Josephus Daniels from the Department of the Navy shows that a
brief stop was made in Da Nang for briefings on April 8.
During his March 2006 hearing as well as in multiple written
statements, the veteran reports that he was exposed to Agent
Orange when going ashore in Vietnam as well as while he was
onboard a ship in the waters offshore. Additionally, the
record includes a February 2003 statement as well as March
2006 hearing testimony from a former service comrade who
reported that he had served with the veteran on the U.S.S.
Josephus Daniels. The comrade stated without hesitation that
he and the veteran had disembarked the vessel and stepped
foot on shore in Vietnam.
Given the evidence noted above, and affording the veteran the
benefit of the doubt by accepting the veteran and his former
service comrade’s statements as credible, the Board finds
that the veteran had service in the waters offshore of
Vietnam that involved visitation in the Republic of Vietnam.
As this constitutes service in Vietnam during the Vietnam
Era, the veteran is presumed to have been exposed to
If a veteran was exposed to an herbicide agent (to include
Agent Orange) during active military, naval, or air service,
the following diseases shall be service-connected if the
requirements of 38 C.F.R. § 3.307(a)(6) are met, even if
there is no record of such disease during service, provided
further that the rebuttable presumption provisions of 38
C.F.R. § 3.307(d) are also satisfied: chloracne, Hodgkin’s
disease, multiple myeloma, non-Hodgkin’s lymphoma, chronic
lymphocytic leukemia (CLL), Type 2 diabetes (also known as
Type 2 diabetes mellitus or adult-onset diabetes), acute and
subacute peripheral neuropathy, porphyria cutanea tarda,
prostate cancer, respiratory cancers (cancer of the lung,
bronchus, larynx or trachea), and soft-tissue carcinomas
(other than osteosarcoma, Kaposi’s sarcoma, or mesothelioma).
See 38 C.F.R. § 3.309(e) (2006). Thus, a presumption of
service connection arises for a Vietnam veteran (presumed
exposed to Agent Orange) who develops one of the
In this case, private treatment records dated from 1997 to
2000 as well as a June 2003 VA examination report reflect
diagnoses including persistent bladder cancer and bladder
carcinoma invasive to the prostatic urethra and prostate
gland. Hence, competent medical evidence establishes that
the veteran suffers from the claimed disability of bladder
cancer. However, bladder cancer is not one of the enumerated
diseases associated with Agent Orange exposure under 38
C.F.R. § 3.309(e) (2006). (Parenthetically, the Board also
notes that the Secretary of Veterans Affairs has determined
that there is no positive association between exposure to
herbicides and any other condition for which the Secretary
has not specifically determined that a presumption of service
connection is warranted. See, e.g., Notice, 68 Fed. Reg.
27,630-41 (May 20, 2003). See also Notices at 61 Fed. Reg.
57,586-589 (1996); 64 Fed. Reg. 59,232-243 (1999); 67 Fed.
Reg. 42,600-608 (June 24, 2002)). Accordingly, in this
case, there is no basis for a grant of presumptive service
connection based on the veteran’s presumed herbicide
Notwithstanding the presumption, service connection for a
disability claimed as due to exposure to Agent Orange may be
established by showing that a disability or death was in fact
causally linked to such exposure. See Brock v. Brown, 10
Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039,
1044 (Fed. Cir. 1994), citing 38 U.S.C.A. §§ 1113(b) and
1116, and 38 C.F.R. § 3.303. The Board also points out that,
as the veteran has not limited his claim for service
connection for bladder cancer to Agent Orange exposure,
evidence of a nexus between his current disability and any
in-service injury or disease (to include claimed in-service
Agent Orange and/or diesel fuel exposure) may provide a basis
for granting service connection.
In this case, the veteran has asserted that, in addition to
Agent Orange, he was exposed to diesel fuel during active
service during weekly ship refueling duties as well as during
a naval initiation ritual ceremony. Service personnel
records show that the veteran was initiated into the Solemn
Mysteries of the Ancient Order of the Deep after crossing the
Equator on May 20, 1970. The record includes a May 2004
statement as well as March 2006 hearing testimony from a
former service comrade who reported that he had served with
the veteran on the U.S.S. Josephus Daniels. The comrade
indicated that the veteran had been exposed to diesel fuel
during active service.
Again, resolving reasonable doubt in the veteran’s favor, the
Board accepts the veteran and his fellow service comrade’s
assertions concerning in-service diesel fuel exposure as
credible, which, thus, supports a finding of diesel fuel
exposure in addition to his presumed Agent Orange exposure.
While there is no objective evidence to document actual
exposure to Agent Orange and/or diesel fuel during active
service, the Board notes that there is also no objective
evidence to directly contradict the veteran’s assertions of
such exposure. As such, the Board now turns to the question
of the medical evidence supports a finding that there exists
a medical relationship, or nexus, between the veteran’s
current bladder disability and in-service injury or disease
(in this case, Agent Orange exposure and/or diesel fuel
At the outset, the Board notes that the veteran has submitted
a copy of an April 2002 decision in which the Board granted
service connection for bladder cancer, as a result of
exposure to petroleum products or Agent Orange, to another
veteran. Although the Board strives for consistency in
issuing its decisions, previously issued decisions will be
considered binding only with regard to the specific case
decided. Prior decisions in other appeals may be considered
in a case to the extent that they reasonably relate to the
case, but each case presented to the Board will be decided on
the basis of the individual facts of the case in light of the
appellate procedures and substantive law. See 38 C.F.R. §
20.1303 (2006). Therefore, the submitted decision, which
does not involve this veteran, is not binding and does not
control the outcome of this appeal.
The veteran also has submitted an October 2001 private
medical opinion which indicated it is more likely than not
that exposure to Agent Orange in Vietnam cause, or
contributed substantially to bladder cancer. This medical
opinion also has no probative value, as it was issued by a
physician treating another veteran and does not address this
appellant or reference the particular facts involved in his
However, the record does contain medical opinion evidence
that is pertinent to question of medical relationship between
bladder cancer and service for this veteran.
In a September 2003 private medical opinion, a physician, Dr.
Schecter, noted that the veteran had developed a relatively
aggressive bladder cancer. The physician further opined that
given his otherwise healthy lifestyle, the veteran’s exposure
to Agent Orange would be a reasonable explanation for the
development of cancer or a contributory factor.
Additionally, in an August 2003 statement, an additional
private physician, Dr. Lamm, indicated that it was apparent
that the veteran had been exposed to Agent Orange and diesel
fuel. He further noted that diesel fuel exposure was a well
recognized bladder carcinogen. Dr. Lamm stated that the
veteran’s early onset of highly aggressive bladder cancer
coupled with his lack of genetic or other environmental
causes, it was highly probable that his malignancy and
current bladder disability were related to Agent Orange and
diesel fuel exposures. In an additional November 2005
statement, Dr. Lamm highlighted that the veteran had no
family history of cancer, had only brief, insignificant
exposure to tobacco, and had no exposure to other known
carcinogens. The physician opined, based on the
preponderance of his own research and treatment of the
veteran, that exposure to Agent Orange and diesel fuel while
serving in Vietnam caused or substantially contributed to the
veteran’s development of aggressive bladder cancer.
While neither of one of these medical opinions definitively
establishes a direct link between the veteran’s bladder
cancer and in-service Agent Orange and/or diesel fuel
exposure, the Board finds that the collective medical opinion
evidence provides some indication that the veteran’s bladder
cancer is likely related to in-service Agent Orange and/or
diesel fuel exposure. The Board also finds supportive of the
medical opinion evidence the 2005 Gulf War and Health article
from the National Academy of Sciences (submitted by the
veteran In February 2006), that reflects a conclusion that
results of studies taken together constitute limited or
suggestive evidence of an association between combustion
products and bladder cancer (even though a definitive
association could not be established). Significantly, there
is no contrary medical opinion evidence of record.
When, after careful consideration of all procurable and
assembled data, a reasonable doubt arises regarding service
origin, the degree of disability, or any other point, such
doubt will be resolved in favor of the claimant. By
reasonable doubt is meant one that exists because an
approximate balance of positive and negative evidence which
does satisfactorily prove or disprove the claim. It is a
substantial doubt and one within the range of probability as
distinguished from pure speculation or remote possibility.
See 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107(b);
Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
Given the totality of the evidence, to include the veteran’s
current bladder cancer disability, his presumed Agent Orange
exposure, the veteran’s and his former service comrade’s
credible assertions, to include of in-service diesel fuel
exposure, and the collective medical opinion evidence
addressed above, and resolving all reasonable doubt on the
question of claimed in-service exposure in the veteran’s
favor, the Board finds that the criteria for service
connection for bladder cancer, as due to Agent Orange
exposure and/or diesel fuel exposure, are met.
Service connection for bladder cancer, as due to Agent Orange
exposure and/or diesel fuel exposure, is granted.
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans’ Appeals
Department of Veterans Affairs