Citation Nr: 21000746 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 19-04 414 DATE: January 6, 2021 ORDER Entitlement to service connection for bladder cancer is granted. FINDING OF FACT The Veteran served in the Republic of Vietnam and has a diagnosis of bladder cancer. CONCLUSION OF LAW The criteria for entitlement to service connection for bladder cancer due to exposure to herbicide agents have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1965 to November 1968, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 decision of a Department of Veterans Affairs (VA) regional office. In January 2021, the Veteran testified before the undersigned Veterans Law Judge. The Veteran asserts that he has bladder cancer as a result of exposure to herbicide agents in the Republic of Vietnam. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163 (2004). If a veteran served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, he or she is presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307(a)(6). Further, if a veteran was exposed to herbicide agents during service, certain diseases are presumed to be related to that exposure. Id. Preliminarily, the Board notes that this issue has previously been characterized as whether new and material evidence has been received to reopen the Veteran’s previously-denied claim for entitlement to service connection for bladder cancer. In that regard, the Veteran’s claim was originally denied in a March 2014 rating decision. Generally, when a veteran requests that a previously-denied claim be reopened, new and material evidence must be presented or secured. 38 U.S.C. § 5108(a); 38 C.F.R. § 3.156(a). However, there are some exceptions to this requirement. Notably, new and material evidence is not required when an intervening liberalizing law creates a new basis for entitlement to benefits that did not exist at the time of the prior denial. See Spencer v. Brown, 4 Vet. App. 283, 288-89 (1993). Under such circumstances, a de novo review of the previously-denied claim is required because the change in law itself changes the factual basis of the claim. Id. at 289. Pertinent to this case is the enactment of the National Defense Authorization Act for Fiscal Year 2021, effective January 1, 2021. This law amends 38 U.S.C. § 1116(a)(2) to include three additional diseases, including bladder cancer, to the list of those presumptively related to exposure to herbicide agents. As the amendment to 38 U.S.C. § 1116(a)(2) creates a substantive right that did not exist at the time of the prior final denial of the Veteran’s claim, and which could materially change the resolution of the Veteran’s claim, new and material evidence need not be presented and the Veteran is entitled to a de novo review of his claim. Spencer, 4 Vet. App. at 289. Upon review, the Board finds that the evidence reflects that the Veteran served in the Republic of Vietnam during the relevant time period. As such, he is presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307(a)(6)(iii). Additionally, the evidence reflects a diagnosis of bladder cancer. As bladder cancer is now presumptively related to herbicide agent exposure, service connection is warranted and the claim is granted. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. D. Bruce, Counsel 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.