Citation Nr: 18154214
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 14-29 166A
DATE:	November 29, 2018
REMANDED
Entitlement to service connection for the Veteran’s cause of death is remanded.
REASONS FOR REMAND
The Veteran served on active duty in the United States Army from October 1964 to August 1967.  His awards and decorations include the Vietnam Service Medal with “V” Device.  The Veteran died in June 2008.  The appellant is the Veteran’s surviving spouse.
The appellant’s request to not have a hearing before the Board was received in May 2017.
In April 2018, the Board determined that new and material evidence has been received to reopen the claim of entitlement to service connection for the Veteran’s cause of death and remanded the case for additional evidentiary development.  The case has been returned to the Board for further appellate review.
Entitlement to service connection for the Veteran’s cause of death
The Veteran served in Vietnam during the Vietnam Era and is presumed to have been exposed to herbicides.  The Veteran’s certificate of death provides that the immediate cause of death was metastatic bladder cancer, liver metastatic, bone metastatic, and pancytopenia.  At the time of the Veteran’s death, he was not in receipt of service connection for any disabilities. 
While the Veteran is presumed to have been exposed to herbicides during his period of service, as noted above, bladder cancer is not listed or contemplated among the diseases associated with herbicide agents under 38 C.F.R. § 3.309(e).  As a result, the question for the Board is whether the Veteran’s bladder cancer, which is the cause of the Veteran’s death, is directly related to service, to include consideration of his presumed in-service herbicide exposure. 
The Veteran submitted an October 2006 letter by M.S., M.D., a urologic oncologist.  Dr. S. stated that the Veteran’s “bladder cancer may have been significantly contributed to by his exposure to Agent Orange.”  Dr. S. explained that bladder cancer is largely, if not exclusively, the result of exposure to environment carcinogens and toxicants.  Additionally, Dr. S. noted that the Veteran served in Vietnam and was exposed to Agent Orange and “this is probably a more significant contributor to cancer than has formerly been acknowledged.”  He concluded the following:
I don’t think that there is any question in the minds of American urologists that chemical carcinogenesis plays a very important role in the development of bladder cancer.  I believe [the Veteran] has a very compelling history that would suggest that his exposure at a young age to a very significant dose of a potent toxic defoliating agent contributed to the development of his invasive bladder cancer.
This matter was previously remanded in April 2018 to obtain a VA medical opinion regarding whether the Veteran’s bladder cancer was related to his exposure to herbicides during service.  A VA medical opinion was obtained in May 2018.  The VA examiner reviewed the claims file and relevant medical records.  He opined that it was “less likely than not that the Veteran’s bladder cancer began in or is related to active service, to including exposure to herbicide agents.”  In support of the opinion, the examiner noted other risk factors for bladder cancer and a notation on the Veteran’s death certificate regarding tobacco use and an occupation as a “paper handler.”  The examiner also referenced the medical statement from Dr. S. but stated only that “studies are not a conclusion of fact.” 
In a May 2018 statement, the appellant stated that the Veteran quit smoking for 40 years and only worked in the paper mill for three years.  
The Board finds the May 2018 VA medical opinion to be insufficient.  The Board remand specifically instructed the VA examiner to “address all relevant statements in the record pertaining to the etiology of the Veteran’s bladder cancer, to include an October 2006 letter from a Dr. S., and the 2014 update of the Institute of Medicine’s publication ‘Veterans and Agent Orange.’”  The Board finds that the rationale provided was insufficient, particularly in light of the appellant’s statements regarding the limited nature of his tobacco use and paper mill work.  Therefore, an addendum opinion is necessary prior to adjudication.  
The matter is REMANDED for the following actions:
1. Return the Veteran’s claims file to the examiner who provided the May 2018 VA medical opinion so a supplemental opinion may be provided.  If that examiner is no longer available, provide the Veteran’s claims file to a similarly qualified clinician.  The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated.    


The examiner must provide the following: 
(a.) An opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran’s bladder cancer began during active service or is related to an incident of service, to include exposure to herbicide agents (commonly referred to as Agent Orange). 
(b.) Address all relevant statements in the record pertaining to the etiology of the Veteran’s bladder cancer, to include the October 2006 letter from a Dr. S., and the 2014 update of the Institute of Medicine’s publication “Veterans and Agent Orange.” 
(c.) In identifying tobacco use and employment in the paper mill as factors in the Veteran’s bladder cancer and death, the examiner must include a discussion of the relevant time frame of exposure, in addition to a discussion of the risks associated with exposure to Agent Orange.  
The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report.  If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 
2. Then, review the medical opinion to ensure that the requested information was provided.  If the opinion is deficient in any manner, the Agency of Original Jurisdiction (AOJ) must implement corrective procedures.
3. Then, readjudicate the claim.  If the decision is adverse to the appellant, issue a Supplemental Statement of the Case and allow the applicable time for response.  Then, return the case to the Board.
 
T. Blake Carter
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Shana Z. Siesser

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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