Citation Nr: 21061965 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-35 653 DATE: October 6, 2021 ORDER Service connection for bladder cancer is granted. REMANDED Service connection for a skin condition of the feet and legs, claimed as jungle rot, is remanded. FINDINGS OF FACT 1. The Veteran is presumed to have had herbicide agent exposure during his active duty in the Republic of Vietnam during the Vietnam era. 2. The Veteran was diagnosed with bladder cancer during the pendency of the appeal. CONCLUSION OF LAW The criteria for entitlement to service connection for bladder cancer due to exposure to an herbicide agent are met. 38 U.S.C. §§ 1110, 1116 (a)(2)(J), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from March 1968 to March 1970, including service in the Republic of Vietnam. This case comes to the Board of Veterans' Appeals (Board) on appeal from a decision of the Agency of Original Jurisdiction (AOJ) dated in December 2016. The Veteran testified before the undersigned Veterans Law Judge at a November 2020 hearing; a transcript of the hearing is of record. 1. Service connection for bladder cancer, to include as due to exposure to an herbicide agent The Veteran contends that his bladder cancer is due to exposure to an herbicide agent during service in the Republic of Vietnam, or alternatively is secondary to service-connected prostate cancer. See December 2016 notice of disagreement, December 2016 statement, June 2017 substantive appeal, November 2020 Board hearing transcript. In his substantive appeal, he also contended that his bladder cancer is due to schistosomiasis from drinking water in Vietnam. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three elements required to establish service connection are: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). VA and private medical records reflect that the Veteran was diagnosed with bladder cancer (urothelial carcinoma) in March 2016. See private medical records dated from March to September 2016, April 2016 letter from J.F.Q, MD, January 2017 Disability Benefits Questionnaire (DBQ) from L.S., MD, March 2017 VA medical opinion, and May 2020 letter from Dr. S. The Veteran is presumed to have been exposed to certain herbicide agents, including Agent Orange, during his service in Vietnam. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be presumed to have been incurred in service. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.307 (a)(6). During the pendency of this appeal, effective January 1, 2021, an act of Congress amended the law relating to presumptive service connection, adding three diseases that are now deemed to be presumptively associated with exposure to herbicide agents in Vietnam. National Defense Authorization Act for Fiscal Year 2021, Pub. L. No. 116-283, H.R. 6395, 116th Cong. (2021) (to be codified, in part, at 38 U.S.C. § 1116 (a)(2)(J)). Bladder cancer is one of the recently added diseases. The law as amended regarding exposure to herbicides in Vietnam is dispositive, and as a result service connection for bladder cancer is warranted on a presumptive basis pursuant to the provisions of 38 U.S.C. § 1116 (a)(2)(J). The appeal for service connection for bladder cancer is granted. REASONS FOR REMAND 1. Service connection for a skin condition of the feet and legs, claimed as jungle rot is remanded. The Veteran contends that he has a current skin condition (claimed as jungle rot) of the feet and legs, that began during combat service in Vietnam and has continued since then. See Board hearing transcript, pages 2-4. He stated that during service in Vietnam, he wore jungle boots, and his feet were always wet. He stated that he was treated for the condition in service by a medic, and one time his ankles were so bad (bleeding) that the medic gave him a 24-hour stand-down to let them heal. He also testified that he was treated for this condition about 15 years ago, and about 3-4 years ago by Dr. S.P. from Missouri Valley CHI. See Board hearing transcript, page 6. Such medical records are not on file, and a remand is required to allow VA to obtain authorization and request these records. The Board cannot make a fully-informed decision on the issue of service connection for a skin condition of the feet and legs because no VA examiner has opined whether any current skin condition of the feet and legs is related to service. Moreover, as the Veteran served in combat, 38 U.S.C. § 1154 (b) allows him to use "satisfactory lay or other evidence" to establish that he was injured or incurred a disability while on active duty, even in cases where "there is no official record" that such injury or disability occurred. Thus, the absence of treatment in service should not be the basis for a negative medical opinion. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issue on appeal. Updated VA medical records should be obtained. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. S.P. at Missouri Valley CHI, and any other medical provider who treated him for a skin condition. Make two requests for the authorized records from the identified provider(s), unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's VA treatment records for the period from December 2019 to the present. 3. Schedule the Veteran for a VA examination to determine the etiology of his claimed skin condition (jungle rot) of the bilateral feet and legs. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is any current skin condition of the bilateral feet and legs at least as likely as not related to service, including his feet and boots being wet for extended periods during combat service in Vietnam? The examiner should accept that the Veteran's feet and boots were wet for extended periods during his service in Vietnam, and that he had skin symptoms at that time. See November 2020 hearing transcript, pages 2-3. Provide a rationale to support the opinion. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? Is any current skin condition of the feet and legs at least as likely as not related to in-service exposure to herbicide agents? The examiner is advised that a negative opinion cannot be based solely on the fact that the skin condition of the feet and legs is not on the list of diseases that are presumptively associated with exposure to herbicide agents. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. L. Wasser, 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.