Citation Nr: 20055167 Decision Date: 08/20/20 Archive Date: 08/20/20 DOCKET NO. 14-25 305 DATE: August 20, 2020 ORDER Entitlement to service connection for bladder cancer, to include as due to herbicide exposure, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT It is just as likely as not the Veteran’s bladder cancer was caused by radiation treatment for his service-connected prostate cancer – which, in turn, is the presumed result of exposure to herbicides while in the military. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for bladder cancer since secondary to the service-connected prostate cancer. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1962 to November 1966 and from December 1966 to February 1969. The Board most recently remanded these claims, as well as a claim of entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD), in February 2019 for further development and consideration. Specifically, the Agency of Original Jurisdiction (AOJ) was directed to provide the Veteran VA examinations for medical opinions concerning the nature and etiology of his claimed disabilities. To this end, the Veteran underwent VA examinations in October 2019, and there was the required substantial compliance with the remand directives, including in that respect. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Moreover, after considering the October 2019 VA psychiatric examination, the AOJ granted service connection for PTSD in a July 2020 rating decision on remand. If, in response, the Veteran disagrees with the initial rating and effective date for this now service-connected disability, he must separately appeal these “downstream” issues. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Entitlement to service connection for bladder cancer, including owing to herbicide exposure, is granted Establishing entitlement to direct service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or an injury; and (3) evidence of a correlation (“nexus”) between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). See also 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Moreover, certain “chronic” disabilities such as malignant (i.e., cancerous) tumors may be presumed to have been incurred in service if they manifested to a compensable degree (generally meaning to at least 10-percent disabling) within one year after discharge from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258 (2015). This presumption is rebuttable by affirmative evidence to the contrary. Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Following the February 2019 Board remand, the Veteran was afforded a VA examination in October 2019 to determine the nature and etiology of his low grade superficial TCC (transitional cell carcinoma) of his bladder. While the VA examiner opined that it is less likely than not that the Veteran’s bladder cancer was caused by his presumed exposure to herbicides during his service, this examiner explained that TCC lesions of the bladder are suggestive of irritation/inflammation in the trigone of the bladder, which is a side effect of radiation. This is significant because the Veteran had 40 radiation treatments for prostate cancer in 2008 and was diagnosed with bladder cancer in 2013. The VA examiner noted that the side effects of radiation on the prostate include inflammation of the bladder due to its close proximity. Consequently, there is sufficient evidence of the required correlation between the radiation treatment for the Veteran’s service-connected prostate cancer to, in turn, grant secondary service connection for his associated bladder cancer.   REASONS FOR REMAND Entitlement to a TDIU is remanded Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities – provided that, if there is one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system or both upper or both lower extremities will be considered as one, collective, disability for the above purposes of one 60 percent disability rating or one 40 percent disability rating. 38 C.F.R. § 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). The rating board will include a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The Veteran has had a 100 percent schedular rating effectively since February 11, 2019, also in years past twice has had temporary 100 percent schedular ratings. The U. S. Court of Appeals for Veterans Claims (Court/CAVC) has recognized that a 100 percent schedular disability rating means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, at least generally speaking, if VA has found a Veteran to be totally disabled due to a particular service-connected disability or combination of disabilities pursuant to the Rating Schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). There are exceptions to this general rule, but, notably, here, the Veteran also already has been receiving special monthly compensation (SMC) under the provisions of 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) effectively since January 26, 2010, and under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i) effectively since February 11, 2019. Thus, consideration of additional entitlement to a TDIU is not required. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). The Veteran nonetheless contends that a TDIU is warranted because he is unemployable as a result of his service-connected disabilities and was during times when he did not have a 100 percent schedular rating and was not receiving SMC at the S-1 rate. Although the Veteran is clearly eligible for TDIU consideration based on the ratings for his service-connected disabilities and claim of unemployability owing to these disabilities, the AOJ’s pending implementation of the Board’s grant additionally of entitlement to service connection for his bladder cancer and assignment of an initial rating and effective date for this now service-connected disability may, in turn, render moot the issue of entitlement to a TDIU even during the remaining times that, until that occurs, are still eligible for this additional TDIU benefit.   Accordingly, this remaining TDIU claim is REMANDED for the following action: Assign an initial disability rating and effective date for the Veteran’s now service-connected bladder cancer. Determine what effect, if any, those assignments in turn have on his additional claim of entitlement to a TDIU and take all appropriate action as a consequence. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Mukherjee 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.