Citation Nr: 21002595 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 18-42 805 DATE: January 14, 2021 ORDER Entitlement to service connection for bladder cancer, to include as due to herbicide exposure, is granted, subject to all laws and regulations governing the award of monetary benefits. FINDING OF FACT The Veteran has a current diagnosis of bladder cancer, and served in the Republic of Vietnam during the Vietnam era. CONCLUSION OF LAW The criteria for entitlement to service connection for bladder cancer as due to herbicide exposure have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309; 38 U.S.C. § 1116A(d).   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1954 to January 1958, and from February 1958 to October 1981. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). This issue was previously before the Board in February 2019 when it was denied. The Veteran appealed the denial to the Court of Appeals for Veterans Claims. A joint motion for remand was issued in December 2019 finding that the Board erred when it provided an inadequate explanation for finding that a VA examination was unnecessary. Subsequently, the Veteran testified before the undersigned Veterans Law Judge in an October 2020 hearing. Entitlement to service connection for bladder cancer, to include as due to herbicide exposure Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A Veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). The Vietnam era is the period beginning on February 28, 1961 and ending on May 7, 1975 for veterans who served in the Republic of Vietnam, and the period beginning on February 28, 1961 and ending on May 7, 1975, in all other cases. 38 U.S.C. § 101(29)(A). Service in the Republic of Vietnam is “service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.” 38 C.F.R. § 3.307(a)(6)(iii). The U.S. Court of Appeals for the Federal Circuit issued an en banc decision in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), which held that the phrase “service in the Republic of Vietnam” includes the 12-nautical-mile territorial waters of the Republic of Vietnam and is not limited to the landmass or inland waterways of that nation, overturning its prior decision in Haas v. Peake, 525 F.3d 1168 (2008); 38 U.S.C. § 116A(d). For Veterans presumed to have been exposed to herbicides, certain enumerated diseases shall be service connected even though there is no record of such disease during service, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The National Defense Authorization Act for Fiscal Year 2021 was enacted on January 1, 2021. Part of this act amended 38 U.S.C. § 116(a)(2) to add parkinsonism, bladder cancer, and hypothyroidism to the list of diseases presumptively associated with exposure to herbicide agents. See National Defense Authorization Act for Fiscal Year 2021, Pub L. 116-283 (January 1, 2021). The Veteran alleges that the bladder cancer is due to herbicide exposure during the Vietnam era. At his October 2020 Board hearing, the Veteran asserted that he spent a total of approximately 27 months on the ground in Vietnam. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). July 2015 private treatment records indicate a large 4cm bladder cancer on the left lateral wall and trigone. A July 2016 VA disability benefits questionnaire signed by the Veteran’s private physician also provides a diagnosis of bladder cancer. Accordingly, the first element of service connection is met. Second, the Board finds that there was an in-service event. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). As noted above, at his October 2020 Board hearing, the Veteran asserted that he spent approximately 27 months on the ground in Vietnam. Military personnel records indicate that the Veteran was awarded the Vietnam Service Medal and Vietnam Campaign Medal, and served at least three deployments in the Republic of Vietnam. A February 1971 entry noted the Veteran served with a Naval Mobile Construction Battalion and had completed his third deployment at Bien Hoa, Republic of Vietnam from July 1970 to March 1971. Accordingly, the Veteran is presumed to have been exposed to herbicide agents, and the second element of service connection is met. Third, the Board finds that the evidence of record does support a finding that the bladder cancer is related to active service. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). Here, bladder cancer has just recently been added to the list of diseases presumptively associated with exposure to herbicide agents. 38 C.F.R. § 3.309; Pub L. 116-283. Accordingly, service connection is granted for bladder cancer, subject to the applicable law governing the award of monetary benefits. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos 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.