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Agent Orange/Diesel Fuel: Bladder Cancer due to Agent Orange and/or Diesel Fuel is Granted S/C (Service connected)

Bladder Cancer due to Agent Orange and/or Diesel Fuel is Granted S/C (Service connected)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.

http://www.va.gov/vetapp07/files2/0717857.txt

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

 

THE ISSUE

Entitlement to service connection for bladder cancer, to

include as due to Agent Orange exposure and/or diesel fuel

exposure.

 

REPRESENTATION

Appellant represented by:   A. Ray Martin and Robert D.

Ford, Agents

 

WITNESSES AT HEARING ON APPEAL

 

Appellant and a former service comrade

 

ATTORNEY FOR THE BOARD

 

J. D. Deane, Counsel

 

INTRODUCTION

 

The veteran had active military service from January 1969 to

November 1972.

 

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

instance.

 

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

question.

 

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

(2006).

 

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.

 

II.  Analysis

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

herbicides.

 

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

aforementioned conditions.

 

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

exposure.

 

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

exposure).

 

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

appeal.

 

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.

 

 

ORDER

 

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

 

 

Legacy of Our Veterans' Military Exposures
  1. Pingback: Atrazine Bladder Cancer | youmesothelioma.com

  2. Ann Pederson Reply

    Well its about time. Do you know if ESRD kidney failure has been added to the list or is research being done?

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