Citation Nr: 21001189 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-53 332A DATE: January 7, 2021 ORDER Entitlement to service connection for bladder cancer is granted. REMANDED Entitlement to an initial rating greater than 60 percent for ischemic cardiomyopathy is remanded. FINDING OF FACT The Veteran’s bladder cancer is related to presumed in-service herbicide agent exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for bladder cancer have been met. 38 U.S.C. §§ 1110, 1113, 1116; 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 July 1967 to July 1969, to include service in the Republic of Vietnam. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which, inter alia, granted the Veteran’s claim for service connection for ischemic cardiomyopathy, and assigned a 60 percent disability rating, effective September 2, 2014; the RO denied the Veteran’s claim for service connection for bladder cancer. In June 2016, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in September 2016, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in November 2016. Also, this appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). 1. Service connection for bladder cancer The Veteran contends that his bladder cancer is related to herbicide agent exposure while serving in Vietnam. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). The Veteran’s DD Form 214 indicates that he served in Vietnam. A veteran who, during active military, navel, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Thus, exposure to herbicide agents is presumed. The diseases for which service connection is warranted on a presumptive basis due to herbicide agent exposure are listed in 38 U.S.C. § 1116(a)(2) and 38 C.F.R. § 3.309(e). Effective January 1, 2021, section 9109 of the National Defense Authorization Act of Fiscal Year 2021 amended 38 U.S.C. § 1116(a)(2) to add bladder cancer as one of the listed diseases, to be codified at 38 U.S.C. § 1116(a)(2)(J). A September 2014 VA examination notes that the Veteran was diagnosed with bladder cancer in July 2014. Private treatment records dated in October 2014 also confirm the Veteran’s diagnosis for bladder cancer. As the Veteran has current bladder cancer and it is presumed that he was exposed to herbicide agents in Vietnam, service connection for bladder cancer is granted on a presumptive basis. REASONS FOR REMAND The Veteran’s most recent VA examination for a heart condition was in July 2015. The examiner noted the Veteran’s heart conditions, including ischemic cardiomyopathy. For VA purposes, a VA heart examination requires METs testing to determine the Veteran’s level at which symptoms such as dyspnea, fatigue, angina, dizziness, or syncope develop. In May 2015, the Veteran underwent an interview-based METs test. The METs test indicated that the Veteran reported dyspnea and angina. Based on the results of the testing, the examiner found a workload of greater than three METs but not greater than five METs resulting in dyspnea and angina. However, the Veteran asserted through his representative that the examiner did not provide an adequate explanation for why he did not conduct exercise stress testing. See December 2020 appellate brief. The Veteran also contended that the May 2015 METs interview-based test did not adequately assess the severity of his heart condition, suggesting that the current severity of his heart condition may have worsened since his last examination. In light of the evidence of possible worsening since the Veteran’s last VA examination over five years ago, remand is warranted for additional examination. See Caluza v. Brown, 7 Vet. App. 498, 505-506 (1995) (“where the record does not adequately reveal the current state of the claimant’s disability and the claim is well grounded, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination”). The matter is REMANDED for the following action: 1. Associate any outstanding records to include VA and private records regarding treatment and evaluation for ischemic cardiomyopathy. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected ischemic cardiomyopathy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kovacs, Associate 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.