Citation Nr: 21002924
Decision Date: 01/19/21	Archive Date: 01/19/21

DOCKET NO. 17-47 690
DATE: January 19, 2021

ORDER

Entitlement to service connection for bladder cancer is granted.

FINDINGS OF FACT

1. The Veteran was in the Republic of Vietnam during his active duty service.

2. The Veteran’s bladder cancer is presumed to be related to his presumed exposure to herbicides in service.

CONCLUSION OF LAW

The criteria for service connection for bladder cancer have been met.  38 U.S.C. §§ 1110, 1111, 1116(a)(2)(J), 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty from June 1960 to June 1963 and from October 1963 to October 1981.  This case comes to the Board from a May 2016 decision of the Agency of Original Jurisdiction (AOJ), which denied service connection for bladder cancer.  The Veteran appealed that decision.  In April 2019, he and his spouse testified before the undersigned at a videoconference hearing.  A transcript of the hearing is of record.

The Board remanded the bladder cancer claim for further development in August 2019 and most recently in September 2020.  

The Veteran attributes his post-service diagnosis of bladder cancer to his exposure to herbicides during his in-service deployment to Vietnam.  Personnel records confirm his presence in Vietnam between February 1967 and February 1968.  This means that the law presumed that he was exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iii).  

Post-service VA medical records as well as the most recent VA examination report confirm the Veteran’s diagnosis of bladder cancer.  When the Board most recently remanded the claim, bladder cancer was not on the list of diseases which, according to 38 U.S.C. § 1116 and 38 C.F.R. § 3.309(e), are presumptively related to herbicide exposure.  In its remand, the Board requested a new medical opinion on the probability that a causal relationship exists between herbicide exposure and the Veteran’s bladder cancer.  As the Board explained, an unfavorable opinion, received in March 2020, was inadequate to decide this case because there was a factual error in the examiner’s summary of the medical evidence and because the examiner’s statement that bladder cancer was not on the list of diseases presumptively related to herbicides did not, standing alone, provide a rationale sufficient to support an unfavorable opinion.  Cf. Polovick v. Shinseki, 23 Vet. App. 48, 52-53 (2009).  

On remand, the AOJ obtained a new unfavorable opinion in October 2020.  Relying on this opinion, the AOJ issued a supplemental statement of the case, continuing to deny service-connected compensation for bladder cancer, and returned this issue to the Board.  

Fortunately for the Veteran, as part of the National Defense Authorization Act for Fiscal Year 2021, Congress amended 38 U.S.C. § 1116(a)(2) to add bladder cancer to the list of diseases which are presumptively associated with exposure to herbicides.  See Public Law 116-283, § 9109 (January 1, 2021).  

Based on the recent amendment, the Board will apply the presumption of service connection authorized by new 38 U.S.C. § 1116(a)(2)(J) to the Veteran’s bladder cancer.  Consistent with this finding, the claim for service connection for bladder cancer is granted. 

 

DAVID L. WIGHT

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M. Nye, 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.