Citation Nr: 21004302 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 20-21 514 DATE: January 26, 2021 ORDER Service connection for bladder cancer is granted. REMANDED Service connection for a right elbow injury is remanded. Entitlement to an initial rating in excess of 20 percent for right shoulder strain with degenerative arthritis is remanded. Entitlement to an initial compensable rating for residuals of traumatic pneumothorax with scarring is remanded. FINDINGS OF FACT 1. Based on the Veteran’s claims file, which notes that the Veteran served in the Republic of Vietnam, the Veteran is presumed to have been exposed to herbicide agents during active service. 2. In 2021, the National Defense Authorization Act added bladder cancer to VA’s list of diseases presumptively associated with exposure to herbicide agents. Because of this, the Veteran’s current bladder cancer is presumptively related to exposure to Agent Orange in Vietnam. CONCLUSION OF LAW The criteria are met for service connection for bladder cancer. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran’s DD 214 confirms that he served on active duty from September 1979 to March 1981. However, it appears that the Veteran had another period of active service before this time period, from September 1960 to September 1979. There is no DD 214 for this period of service, although it does refer to 19 years of prior active duty service. The Board will address this period of active service in the Remand Section below. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2018 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). Service connection for bladder cancer is granted. Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain disabilities, including arthritis, organic neurological disorders, and psychoses, are presumed to be serviced connected if manifested to a compensable degree within one year following service. 38 C.F.R. §§ 3.303, 3.307, 3.309. A Veteran who, during active military, naval, 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 that service. 38 U.S.C. § 1116(f). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including early-onset peripheral neuropathy, shall be service-connected, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. §§ 1113, 1116 and 38 C.F.R. §§ 3.307(d), 3.309(e). Generally, the regulation applies where an enumerated disease becomes manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii) (2016). The Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341 -346 (1994). See also 61 Fed. Reg. 41442 -41449, and 61 Fed. Reg. 57586 -57589 (1996). The VA General Counsel has determined that the regulatory definition (which permits certain personnel not actually stationed within the borders of the Republic of Vietnam to be considered to have served in that Republic) requires that an individual actually have been present within the boundaries of the Republic. See VAOPGCPREC 27-97. Specifically, the General Counsel has concluded that in order to establish qualifying “service in Vietnam” a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. Factual Background and Analysis According to a May 2017 Disability Benefits Questionnaire (DBQ), the Veteran was diagnosed with bladder cancer on December 29, 2016. In the March 2020 Statement of the Case, the VA noted that the Veteran’s service personnel records showed that the Veteran served in the Republic of Vietnam. Based on this, herbicide exposure is established. As noted above, in the National Defense Authorization Act for Fiscal Year 2021, three disorders were added to the list of diseases presumptively associated with exposure to herbicide agents. Specifically, 38 U.S.C. § 1116(a)(2) was amended to include bladder cancer. Because the Veteran has a diagnosis of bladder cancer, and because he was in Vietnam, under 38 U.S.C. § 1116, it is presumed that his bladder cancer was caused by his exposure to herbicide agents. Id. Based on the above analysis, the Board finds that service connection for bladder cancer is warranted. REASONS FOR REMAND As noted above, the Veteran’s DD 214 lists that he served on active duty from September 1979 to March 1981. However, it also lists that he had 19 years of “prior active service.” A September 1982 VA Form 00-3101-3 Request for Information asked the VA to verify prior service from September 6, 1960 to September 24, 1979. All service medical records were requested. From the claims file, it does not appear that these records were ever obtained or associated with the Veteran’s file. Because of this, on remand, the RO is ordered to attempt to obtain and associate with the record the Veteran’s DD 214 showing his period of active service before September 1979, as well as any and all medical records from this earlier time period. 1. Service connection for a right elbow injury is remanded. Because it appears that service medical records are missing from the Veteran’s claims file, a remand is necessary. In an October 2017 VA examination report, the examiner stated that the Veteran was not diagnosed with a right elbow condition. Because of this, service connection was not possible. However, in a February 2019 VA treatment report, the VA physician noted that the Veteran had been having increasing difficulty with a nerve shock sensation emanating from both the medial and lateral epicondyles radiating down to his hand. This made it difficult for the Veteran to supinate/pronate or squeeze anything. The physician noted that the Veteran’s right elbow condition has been getting “progressively worse.” In a November 2020 statement, the Veteran wrote that his right elbow injury was the result of an accident while he was serving in Korea. Because of this, a new VA examination is necessary to determine if the Veteran has a current right elbow injury that is related to active service or was caused or aggravated by his service-connected right shoulder disability. In addition, the Board notes that, even if no diagnosis is present, symptoms may count as a disability for VA compensation purposes if they cause functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (2018). 2. Entitlement to an initial rating in excess of 20 percent for right shoulder strain with degenerative arthritis is remanded. In an August 2020 statement, the Veteran reported that in his most recent VA examination in March 2020, a range of motion gauge was not used, despite the examiner checking off a box indicating that it had been. Additionally, the Veteran wrote that his right shoulder disability had increased in severity. Because of this, a new VA examination is necessary to determine the current nature, extent, and severity of the Veteran’s service-connected right shoulder strain with degenerative arthritis. 3. Entitlement to an initial compensable rating for residuals of traumatic pneumothorax with scarring is remanded. In his August 2020 statement, the Veteran reported that his residuals of traumatic pneumothorax had increased in severity since his last VA examination in October 2017. Because of this, a new VA examination is necessary to determine the current nature, extent, and severity of the Veteran’s service-connected residuals of traumatic pneumothorax. The matters are REMANDED for the following actions: 1. Please note that this Veteran’s case has been advanced on the docket and, by law, ALL remanded claims must be processed expeditiously. 2. In accordance with the provisions of 38 C.F.R. § 3.159(c)(1), contact the Veteran for additional information about treatment for his condition and make efforts to obtain all VA and private treatment records concerning these claims. 3. Obtain and associate with the claims file the Veteran’s DD 214 for the period prior to September 1979. Additionally, any outstanding military service records and service treatment records from this time period should be obtained associated with the claims file. 4. Schedule the Veteran for VA examinations for his right elbow, right shoulder, and residuals of traumatic pneumothorax. The Veteran’s claims folder must be made available to the examiner. Based on a review of the record and examination of the Veteran, the examiner should provide opinions that respond to the following: Concerning any diagnosed right elbow condition, please identify the likely cause of the Veteran’s symptoms. Specifically, is it at least as likely as not that this disability is causally related to active service, represents the initial manifestations of his current diagnoses, OR was proximately CAUSED BY or AGGRAVATED BY his service-connected right shoulder strain with degenerative arthritis. Concerning the Veteran’s service-connected right shoulder strain with degenerative arthritis and residuals of traumatic pneumothorax, all indicated tests and studies should be accomplished and all clinical findings should be reported in detail. All indicated tests and studies must be performed in accordance with the pertinent Disability Benefits Questionnaires for this disability, and all findings should be set forth in detail. The examiner should identify all complications and symptoms attributable to the Veteran’s service-connected disabilities in accordance with the rating criteria. 5. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Abrams, 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.