Citation Nr: 21063363 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-37 998 DATE: October 14, 2021 ORDER Reopening of the issue of entitlement to service connection for prostate cancer is granted. Reopening of the issue of entitlement to service connection for bladder cancer is granted. Entitlement to service connection for prostate cancer, to include as due to herbicide agent exposure, is granted. Entitlement to service connection for bladder cancer, to include as due to herbicide agent exposure, is granted. REMANDED Entitlement to special monthly compensation (SMC) is remanded. FINDINGS OF FACT 1. New and material evidence has been added to the Veteran's file since the previous final denial in his claim to service connection for prostate cancer. 2. New and material evidence has been added to the Veteran's file since the previous final denial in his claim to service connection for bladder cancer. 3. The Veteran's prostate cancer was due to his time in service, to include his exposure to herbicide agents. 4. The Veteran's bladder cancer was due to his time in service, to include his exposure to herbicide agents. CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for prostate cancer. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for bladder cancer. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for prostate cancer to include as secondary to herbicide exposure are met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 4. The criteria for service connection for bladder cancer to include as secondary to herbicide exposure are met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1970 to December 1971. These matters are on appeal from May and August 2015 rating decisions by a Department of Veterans Affairs (VA) regional office (RO). The Veteran had previously requested a hearing before a Veterans Law Judge. However, in a February 2021 correspondence, he withdrew his request. New and Material Evidence Claims Rating actions are final and binding based on evidence on file at the time the veteran is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Veteran was previously denied service connection for bladder and prostate cancer in September 2013. The Veteran did not appeal and the decision became final. The Veteran was again denied service connection for these disabilities in an August 2015 because no new and material evidence had been added to the Veteran's file. Since the previous final denial, multiple treatment records, examinations, and a VA memo conceding exposure to herbicide agents have been added to the Veteran's record. This evidence is new in that it was not of record at the time of the previous final denial. The Board also finds this evidence to be material in that it raises a reasonable possibility of substantiating the claim. Therefore, both claims to service connection for prostate cancer and bladder cancer will be reopened. Service Connection Claims Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)(b) (2016), Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, the law provides a presumption of service connection for certain diseases associated with exposure to herbicide agents, and that become manifest within a specified time period, even if there is no record of evidence of such disease during the period of service. For purposes of the presumption, "herbicide agents" are 2,4-D, 2,4,5-T, and its contaminant TCDD, cacodylic acid, and picloram. 38 C.F.R. § 3.307(a)(6)(i). Veterans who, during active military, naval, or air service, served in the Republic of Vietnam (Vietnam) during the period beginning on January 9, 1962, and ending on May 7, 1975, or in or near the Korean DMZ between April 1, 1968, and August 31, 1971, are presumed to have been exposed to herbicide agents. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). This presumption also extends to individuals who performed service in the Air Force or Air Force Reserve under circumstances which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. Id. For those veterans who have been exposed to herbicide agents, certain diseases are acknowledged to be presumptively related to such exposure. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, with exceptions not applicable in the instant case. 38 C.F.R. § 3.307 (a)(6)(ii). These diseases are AL amyloidosis; chloracne; type II diabetes; Hodgkin's disease; ischemic heart disease, all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers; and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The Veteran contends he has bladder and prostate cancers that were incurred in or due to his time in service, to include his exposure to herbicide agents. The Veteran has been diagnosed with both bladder and prostate cancer. (See e.g. August 2013 treatment record, March 2020 VA examinations.) The Veteran's service treatment records (STRs) do not show the Veteran was treated for or diagnosed with either of these two conditions while in service. Nor do the records show the Veteran's cancers developed to a compensable degree within one year of his separation from service. In a March 2020 memo, VA conceded the Veteran's exposure to herbicide agents based on the Veteran's nautical service in offshore eligible waters. Because the Veteran has been diagnosed with prostate cancer, which is one of the diseases subject to presumptive service connection, this claim will be granted. However, bladder cancer is not one of the diseases that is subject to presumptive service connection. Therefore, exposure to herbicide agents cannot be the basis for a finding of service connection. However, the Veteran's bladder cancer can still be considered under a direct theory of entitlement. In June 2020, the Veteran submitted a private opinion regarding the Veteran's bladder cancer. The examiner opined the Veteran's bladder cancer was caused by his exposure to herbicides while serving aboard the USS Pyro off the coast of Vietnam. The examiner reviewed several of the Veteran's records and went into a discussion about the chemical makeup of herbicide agents. The examiner also noted that several studies have shown a causal relationship between herbicide exposure and bladder cancer. The examiner said that based on a review of the file, the chemical makeup of herbicide agents, studies showing a causal relationship between exposure to herbicides and bladder cancer, the Veteran's exposure to herbicide agents was at least as likely as not materially contributed to the development of bladder cancer. The Board may not develop the case for negative evidence against this claim if we have a medical opinion that appears to be entitled to probative weight. In this case, the medical opinion is clear and rational, based on a clear review of the evidence. The Board has no basis to dispute it. In this limited case, the best medical evidence provides evidence in support of this claim. While the Board notes the Veteran's records and STRs do not show the Veteran had bladder cancer while in service, the Board also lends weight to the June 2020 examiner's opinion which explains how the Veteran's herbicide exposure made it at least as likely as not that he developed bladder cancer. This, combined with the VA memo conceding the Veteran's exposure to herbicides are persuasive. Therefore, granting the benefit of the doubt to the Veteran, the Board will grant service connection for bladder cancer on a direct theory of entitlement. REASONS FOR REMAND The Veteran contends that he is entitled to SMC. SMC provided by 38 U.S.C. § 1114 (s) is payable where the veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. See 38 C.F.R. § 3.350 (i). The Board finds a remand is necessary in order to properly adjudicate this claim. While the Veteran does not currently have any service-connected disability that is rated as 100 percent disabling, in this decision the Board has granted service connection for prostate cancer and bladder cancer for which disability ratings have yet to be assigned. Additionally, the Veteran has not yet been sent the proper paperwork or been offered an examination for aid and attendance based on his service-connected disabilities. Therefore, the Board finds a remand is warranted in the Veteran's claim to SMC. The matters are REMANDED for the following action: 1. The AOJ should obtain any of the Veteran's outstanding medical records and associate them with the claims file. If possible, the Veteran should submit any pertinent new evidence regarding the condition at issue in order to expedite the claim. 2. After the Veteran's bladder cancer and prostate cancer have been appropriately rated, develop the Veteran's claim to SMC. This includes sending the Veteran any and all appropriate paperwork, including a VA Form 21-2680. 3. After undertaking any other appropriate development deemed necessary, readjudicate the issues on appeal based on the additional evidence of record. If the determinations remain adverse to the Veteran, he and his representative must be provided with a supplemental statement of the case. An appropriate period of time must then be allowed for a response before the record is returned to the Board for further review. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Snoparsky 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.