Citation Nr: 21062084 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-65 272 DATE: October 6, 2021 ORDER Entitlement to service connection for papillary urothelial carcinoma (bladder cancer) is granted. FINDINGS OF FACT 1. In a July 2012 rating decision, the VA found the Veteran was exposed to herbicide agents during service. 2. The Veteran's bladder cancer is related to herbicide agent exposure during service. CONCLUSION OF LAW The criteria for service connection for papillary urothelial carcinoma (bladder cancer) are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1969 to April 1973. This matter comes to the Board of Veterans' Appeals (Board) from a March 2016 rating decision issued by the Agency of Original Jurisdiction (AOJ). In September 2021, a Board hearing was conducted. As this appeal is being granted under the Board's "One Touch" program, a transcript of the hearing is not yet in the claims file but will be added to the file at a later time. Entitlement to service connection for bladder cancer. The Veteran contends his bladder cancer is due to herbicide agent exposure during service. See March 2017 Statement. The question for the Board is whether there is sufficient evidence to find that bladder cancer is related to his service, to include herbicide agent exposure. For the reasons discussed below, the Board concludes the evidence supports a grant of service connection on a direct basis. Entitlement to service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (2007). In order to prevail on a claim for benefits, the Veteran need only demonstrate there is an approximate balance of positive and negative evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). This is because the Veteran is entitled to the "benefit of the doubt" when the evidence is approximately balanced. Id. at 53. Beginning with the Veteran's service, his entrance examination does not note a diagnosis of any form of cancer. See February 1969 Report of Medical Examination. His service personnel records show he was assigned to the USS Coral Sea, beginning in September 1969. See Enlisted Performance Record. While assigned to the Coral Sea, he served in Vietnam from October 1969 to August 1970. See June 2010 VA 21-526. The Board notes the AOJ has found he was exposed to herbicide agents during service in Vietnam. See July 2012 Rating Decision at 1. An "herbicide agent" means a chemical in an herbicide used in support of the United States and in the Republic of Vietnam from January 9, 1962, to May 7, 1975. 38 C.F.R. § 3.307(6)(i). While serving in Vietnam (from October 1969 to August 1970) he reported to sick-call in December 1969 with complaints of discharge from his genitals. See December 22, 1969, Service Treatment Record (STR). Following an examination and diagnostic testing, the military doctor diagnosed acute urethritis due to gonococcus (gonorrhea). Id. The Veteran's STRs do not note other medical complaints of discharge from his genitals. Also, his February 1973 separation examination does not reference urethritis or any form of cancer. See Report of Medical Examination. In March 2016, the Veteran underwent a VA disability examination for his entitlement claim. He reported he discovered he has bladder cancer following an October 2015 visit to the hospital. He went to the hospital because he observed blood in his urine and diagnostic testing by the hospital showed a mass. He went back to the hospital the following day due to blood in his urine and during that visit the mass was removed. His bladder was removed the following year (March 2016). He now uses a conduit in place of his bladder. See VA Disability Benefits Questionnaire (DBQ) at 1, 2. The examiner found the Veteran has invasive urothelial bladder cancer manifested by active malignant tumor without residual complications. Id. at 1, 4. Then, the examiner opined that the Veteran's bladder cancer is not related to service. Id. at 5. The examiner limited his discussion to the STR noting inflammation of the urethra and pointed out the military doctor found it was due to gonorrhea. The examiner explained that medical literature does not support a link between gonorrhea and the development of bladder cancer. Id. at 2, 6. The examiner did not mention the Veteran has been exposed to herbicide agents nor discuss the probability of a link between it and bladder cancer. Id. at 6. In February and August 2018, the VA received two medical opinions that indicate the Veteran's bladder cancer is related to service. Beginning with the February 2018 medical opinion from K.A.B., MD, a private provider, she asserts the Veteran's bladder cancer is more likely than not due to herbicide agent exposure. See Medical Opinion by K.A.D., MD. In the August 2018 medical opinion from A.D., MD, another private provider, he asserts the Veteran's bladder cancer is related to herbicide agent exposure. Dr. A.D. explained herbicide agents are known to cause cancers. He added that because the Veteran has been exposed to herbicide agents there is more likely than not a causal connection between the exposure and the development of bladder cancer. See Medical Opinion by A.D., MD. Turning to the Veteran's claim for disability compensation benefits, the Board finds the Veteran has established entitlement to service connection for bladder cancer. His exposure to herbicide agents during service has been recognized by the AOJ; therefore, the record reflects an in-service injury by way of herbicide agent exposure. See March 2012 Rating Decision at 1. Even though the Veteran's STRs do not note symptoms he has referenced when describing his bladder cancer, like blood in his urine, the opinions of Drs. A.D. and K.A.D. provide probative evidence that weigh in favor of finding a causal connection (nexus) between herbicide agent exposure and bladder cancer. See February 2018 Medical Opinion by K.A.D., MD; August 2018 Medical Opinion by A.D., MD. The Board recognizes the examiner who prepared the March 2016 VA Medical Opinion weighed against finding a nexus; however, the examiner did not address whether there is a link between herbicide agent exposure and the Veteran's bladder cancer. See VA DBQ at 6. Based on a reading of the examination as a whole, the examiner properly considered whether the STRs indicate possible links to the Veteran's cancer. Given that herbicide agent exposure is not documented in the medical records, it was not listed with the evidence the examiner considered when rendering her opinion. Id. at 1, 2. Although the examiner indicated she reviewed the record, she did not discuss herbicide agent exposure, which is important to deciding this claim. So, it was afforded less probative weight than the private medical opinions that concluded there is a nexus between bladder cancer and herbicide agent exposure. See February 2018 Medical Opinion by K.A.D., MD; August 2018 Medical Opinion by A.D. MD. Given that Drs. A.D. and K.A.D. are both qualified to opine on the likelihood of a link between cancer and herbicide agent exposure, the Board finds their opinions probative towards finding a nexus. Because they separately evaluated the issue of a nexus and agree there is a one, their opinions were assigned significant weight. Considering the weight of the evidence favors a link between herbicide agent exposure and the Veteran's bladder cancer, the Board finds there is a nexus. Given that the record reflects the Veteran has bladder cancer, a history of in-service herbicide agent exposure, and medical evidence supporting a nexus between themthe Veteran has established entitlement to service connection on a direct basis. 38 C.F.R. § 3.303. Accordingly, service connection is granted for his diagnosed papillary urothelial carcinoma. The Board notes it considered entitlement to service connected under 38 C.F.R. § 3.309(e); however, the Veteran's form of bladder cancer does not qualify for the presumption of service connection based on herbicide agent exposure under that code. This is because it is not listed among the forms of cancer that qualify for presumptive service connection under § 3.309(e). Accordingly, service connection on under § 3.309(e) is not available for the Veteran's service connection claim. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dean, Michael S. 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.