Citation Nr: A21017477 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 200728-100474 DATE: October 28, 2021 ORDER Service connection for bladder cancer is granted. FINDING OF FACT The Veteran's bladder cancer is presumptively due to his exposure to herbicide agents during service in the Republic of Vietnam. CONCLUSION OF LAW The criteria for entitlement to service connection for bladder cancer are met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1962 to February 1970. In September 2019, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of the issue of service connection for bladder cancer, which was most recently addressed (and denied) in a July 2017 rating decision. In December 2019, the agency of original jurisdiction (AOJ) issued a supplemental claim decision, which found that new and relevant evidence had not been received. In December 2019, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the December 2019 supplemental decision. In April 2020, the AOJ issued the HLR decision on appeal, which considered the evidence of record at the time of the prior December 2019 supplemental decision. Therefore, the Board may only consider the evidence of record at the time of the December 2019 supplemental decision and any evidence submitted during an applicable evidentiary window. In the July 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. The Board hearing was held in July 2021. Therefore, the Board may only consider the evidence of record at the time of the December 2019 supplemental decision, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). The April 2020 HLR decision found that new and relevant evidence had been received to readjudicate the claim. This is a favorable finding by the agency of original jurisdiction (AOJ) and the Board will proceed to the address the claim on the merits. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). Service connection for bladder cancer is granted. The AOJ previously denied the Veteran's claim on the basis that bladder cancer was not on the list of diseases for which service connection is warranted on a presumptive basis due to herbicide agent exposure as listed in 38 U.S.C. § 1116 (a)(2) and the bladder cancer was not otherwise shown to be connected to his military service. Prior to the enactment of the 2021 National Defense Authorization Act (NDAA), bladder cancer was not listed as one of the diseases that may be presumed to be service connected as due to exposure to herbicide agents if manifested in a Veteran who served in Vietnam during the Vietnam Era. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). However, the 2021 NDAA (enacted January 1, 2021) has added three disorders to the list of diseases presumptively associated with exposure to herbicide agents. Specifically, it amended 38 U.S.C. § 1116 (a)(2) to include parkinsonism, bladder cancer, and hypothyroidism. The Veteran was diagnosed with bladder cancer in March 2017. In the April 2020 rating decision, the AOJ conceded that he served in Vietnam from December 1966 to June 1967, that he was exposed to herbicide agents, and that he has a current disability a diagnosis of urothelial carcinoma (bladder cancer). These favorable findings are binding on the Board and are therefore not in dispute. 38 C.F.R. § 3.104 (c). Under the law, as amended, service connection is warranted for bladder cancer pursuant to the provisions of 38 U.S.C. § 1116 (a)(2). The appeal is granted. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Prem, 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.