Citation Nr: 18151897
Decision Date: 11/20/18	Archive Date: 11/20/18

DOCKET NO. 15-33 095
DATE:	November 20, 2018
ORDER
Entitlement to service connection for bladder cancer is granted.
FINDING OF FACT
The Veteran’s bladder cancer is at least as likely as not the result of exposure to an herbicide agent in service.
CONCLUSION OF LAW
The criteria for service connection for bladder cancer have been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
Service connection will be granted for a disability resulting from disease or injury incurred in or caused by active service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303.  Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
Veterans who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 are presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to establish a lack of exposure.  38 C.F.R. § 3.307(a)(6)(iii).  The term “herbicide agent” is defined as a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period noted above, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram.  38 C.F.R. § 3.307(a)(6)(i).  Service connection may be established on a presumptive basis for diseases enumerated in 38 C.F.R. § 3.309(e) for veterans who were exposed to certain herbicide agents during active military, naval, or air service; however, a finding that service connection is not warranted on a presumptive basis does not foreclose the possibility of establishing service connection on direct basis.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir.1994).
When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.
Here, the Veteran served in the Republic of Vietnam during the presumptive period for approximately one year.  In July 2017, the Veteran’s private urologist, A.P.D., D.O., provided an opinion indicating the Veteran’s bladder cancer is at least as likely as not the result of his presumed in-service exposure to an herbicide agent.  In September 2018, the Board requested an expert opinion from a urologist with the Veterans Health Administration (VHA) pursuant to 38 C.F.R. § 20.901 due to a lack of detail in the July 2017 private opinion.  In October 2018, a VHA urologist, L.S.K., M.D., provided an opinion explaining he too would consider the Veteran’s bladder cancer to be at least as likely as not the result of in-service exposure to an herbicide agent if it could be established that the Veteran had a high level of exposure.
Given the Veteran’s military occupational specialty and the length of his period of service in the Republic of Vietnam, the Board finds his level of exposure was at least as likely as not equal to or higher than the typical servicemember who served in the Republic of Vietnam during the presumptive period.  Thus, the evidence is in at least relative equipoise as to whether the Veteran’s bladder cancer is the result of in-service exposure to an herbicide agent.  Resolving reasonable doubt in the Veteran’s favor, the Board finds service connection for bladder cancer is warranted.  See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’ the Nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding . . . benefits.”).

 
M. HYLAND
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	L. S. Kyle, Counsel