Citation Nr: 21063013 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-26 031 DATE: October 12, 2021 ORDER Entitlement to service connection for bladder cancer is granted. REMANDED Entitlement to service connection for hypertension is remanded. FINDING OF FACT More recent evidence supports a presumptive association between bladder cancer and exposure to herbicide agents, including Agent Orange. CONCLUSION OF LAW The criteria for entitlement to service connection for bladder cancer have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1965 to June 1968, including service in the Republic of Vietnam. The Veteran attended a hearing before the undersigned Veterans Law Judge in October 2019. A transcript of the hearing is of record. This matter was previously remanded by the Board of Veterans' Appeals (Board) in December 2019. This matter comes before the Board from an April 2021 order by the United States Court of Appeals for Veterans Claims (CAVC) granting a Joint Motion for Remand (JMR), which set aside a June 2020 denial by the Board, and remanded the issues for a new opinion. 1. Entitlement to service connection for bladder cancer The Veteran contends that he developed bladder cancer due to herbicide agent exposure during active service. 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-element test for service connection requires evidence of: (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). A Veteran, who during active service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during that service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any herbicide agent during service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Service connection based on herbicide exposure will be presumed for certain specified diseases, including ischemic heart disease, which includes coronary artery disease. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6). The evidence reflects a diagnosis of and treatment for bladder cancer. The Veteran served on active duty in the Republic of Vietnam and is therefore presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307. During the pendency of this appeal, section 9109 of the National Defense Authorization Act of Fiscal Year 2021 added three diseases to the list, including bladder cancer, codified at 38 U.S.C. § 1116(a)(2)(J). In sum, the evidence establishes that the Veteran was exposed to herbicide agents during his active service, and the evidence shows a current disability of bladder cancer during the period under consideration. Applying the recent legislative amendments to 38 U.S.C. § 1116, the Board concludes that the Veteran's bladder cancer is presumptively linked to his in-service exposure to herbicide agents, and the Veteran's appeal seeking service connection for bladder cancer is granted. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. The Veteran contends that his current hypertension condition is related to his active service. Specifically, the Veteran contends that his hypertension was directly caused by his exposure to herbicides. Alternatively, the Veteran has contended that his hypertension condition was caused or aggravated by his service-connected post-traumatic stress disorder (PTSD). A medical opinion regarding the etiology of the Veteran's hypertension was obtained in January 2020. The examiner opined that the Veteran's hypertension was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that while there is a notation of a single elevated blood pressure reading in the service treatment records, specifically a reading of 140/80 in February 1968, this does not confirm a chronic condition. The Board finds the January 2020 medical opinion to be inadequate. The January 2020 examiner stated that the Veteran had a "notation of a single elevated blood pressure" reading in the Veteran's service treatment records. However, the Veteran's service treatment records note another elevated blood pressure reading of 160/80 in January 1966. Accordingly, remand is appropriate to address this secondary instance of high blood pressure in service. The matters are REMANDED for the following action: Obtain an addendum medical opinion from a qualified VA medical professional to determine whether the Veteran's hypertension disability was related to his military service, including his presumed exposure to herbicides. The record must be made available to and reviewed by the VA examiner. Any indicated evaluations, studies, and tests should be conducted. Following a review of the entire record, the examiner should address the following: a) Is it at least as likely as not (i.e., a 50 percent or greater probability) that a claimed hypertension disability had its onset in, or is otherwise related to his period of active service, to include his exposure to herbicides while in Vietnam? Additionally, the examiner must specifically address all the Veteran's noted instances of high blood pressure in service noted in his service treatment records. See VBMS, document labeled STR-Medical, receipt date 09/27/1968, pages 22-23, 27-28, 67, and 86. Note that in November 2018, the National Academy of Sciences upgraded the relationship between hypertension and herbicide exposure from "limited or suggestive" to "sufficient," indicating that "there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. See National Academies of Sciences, Engineering, and Medicine. 2018. Veterans and Agent Orange: Update 11 (2018). https://www.nap.edu/read/25137/chapter/12 (last accessed September 2021). b) Notwithstanding the above, is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's claimed hypertension disability was caused by his service-connected PTSD? c) Notwithstanding the above, is it at least as likely as not (50 percent or greater probability) that the Veteran's claimed hypertension disability was aggravated by his service-connected PTSD? Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner should note that the lack of a diagnosed disability in service cannot serve as the sole basis for a negative finding. Lay contentions must be considered and weighed in making the determination as to whether a nexus exists. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David M. Sebstead, Associate 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.