Citation Nr: 21073235 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 13-08 544 DATE: December 7, 2021 ORDER Entitlement to service connection for bladder cancer is granted. FINDINGS OF FACT 1. The Veteran was exposed to herbicide agents during active service while serving in Thailand at Udorn Royal Thai Air Force Base (RTAFB) from September 1967 to September 1968. 2. In 2021, the National Defense Authorization Act added bladder cancer to VA's list of diseases presumptively associated with exposure to herbicide agents. Because of this, the Veteran's current bladder cancer is presumptively related to exposure to herbicide agents. CONCLUSION OF LAW The criteria are met for service connection for bladder cancer. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309; National Defense Authorization Act for Fiscal Year 2021, Pub. L. 116-283 (enacted January 1, 2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from March 1965 to March 1969. This matter comes to the Board of Veterans' Appeals (Board) from an August 2011 rating decision of the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In July 2016, the Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing at the AOJ. The Board remanded this case for additional development in July 2017 and January 2020. In November 2020, the Board denied the Veteran's claim. The Veteran appealed the Board's decision to the U. S. Court of Appeals for Veterans Claims, and pursuant to a September 2021 joint motion for remand, the Board's November 2020 decision was vacated and returned to the Board. 1. Entitlement to service connection for bladder cancer The Veteran contends that he has bladder cancer secondary to his exposure to toxic fumes and contaminated water while serving in Robins Air Force Base from 1965 to 1969, and/ or Agent Orange while serving in Thailand during the Vietnam era from September 1967 to 1968. See, e.g., September 2020 statement. He also alternatively asserts that his bladder cancer is secondary to his service-connected diabetes mellitus. The Board's November 2020 decision and the September 2021 joint motion for remand focused on the development conducted regarding whether the Veteran's bladder cancer was related to his exposure to toxic fumes and contaminated water at Robins Air Force Base. However, given that the National Defense Authorization Act for Fiscal Year 2021 added bladder cancer to the list of diseases presumptively related to herbicide exposure, the Board's decision will focus on this theory of entitlement to resolve the claim. Service connection will generally be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection on a direct basis, the evidence must show (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link or nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 252 (1999). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim will be granted). The Veteran has a current diagnosis of bladder cancer. See, e.g., September 2017 VA examination report. Therefore, he has a current disability, and the first element of service connection has been met. Where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and a disease enumerated by the regulations become manifest 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1110, 1133; 38 C.F.R. §§ 3.307, 3.309. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309 (e). Section 3.307(d)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. 38 C.F.R. § 3.307 (d)(6)(i). Section 3.307(d)(6) also provides that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (d)(6)(iii). VA's Compensation & Pension Service (C&P) has issued information concerning the use of herbicides in Thailand during the Vietnam War. In a May 2010 bulletin, C&P indicated that it has determined that there was significant use of herbicides on the fenced in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. A primary source for this information was the declassified Vietnam era Department of Defense (DOD) document titled Project CHECO Southeast Asia Report: Based Defense in Thailand. Although DOD indicated that the herbicide use was commercial in nature rather than tactical (such as Agent Orange), C&P has determined that there was some evidence that herbicides of a tactical nature, or that of a "greater strength" commercial variant, were used. Given this information, C&P has determined that special consideration should be given to veterans whose duties placed them on or near the perimeters of Thailand military bases. Consideration of herbicide exposure on a "facts found or direct basis" should be extended to those veterans. Significantly, C&P stated that "[t]his allows for presumptive service connection of the diseases associated with herbicide exposure." The May 2010 bulletin identifies several bases in Thailand, including Udorn RTAFB. C&P indicated that herbicide exposure should be acknowledged on a facts found or direct basis if (1) a United States Air Force veteran served at one of the air bases as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by his or her military occupational specialty, performance evaluations, or other credible evidence; (2) an Army veteran was a member of a military police unit that served at or near a base perimeter in Thailand; or (3) an Army veteran who served on an air base in Thailand and provided perimeter security. The Veteran's service records show that he served in Thailand at Udorn Royal Air Force Base for the United States Air Force during the period from September 1967 to September 1968, as a supply clerk with the Air Force 432nd Supply Squadron. The Board has already found, as a factual matter, that he was exposed to herbicide agents during this time. See February 2013 Board Decision. Therefore, he is presumed to have been exposed to an herbicide agent, and the second element of service connection, incurrence or aggravation of a disease or injury in service, has been satisfied. Certain diseases associated with exposure to an herbicide agent shall be presumed to be service connected even if there is no evidence of the disease in service, provided that the rebuttable presumption provisions of § 3.307(d) are satisfied. 38 C.F.R. § 3.309 (e). In the National Defense Authorization Act for Fiscal Year 2021, three disorders were added to the list of diseases presumptively associated with exposure to herbicide agents. Specifically, 38 U.S.C. § 1116 (a)(2) was amended to include bladder cancer. See National Defense Authorization Act for Fiscal Year 2021, Pub. L. 116-283 (enacted January 1, 2021). (Continued on the next page) Because the Veteran has a diagnosis of bladder cancer, and because he is presumed to have been exposed to herbicides in Thailand, under 38 U.S.C. § 1116, it is presumed that his bladder cancer was caused by his exposure to herbicide agents. Id. Based on the above analysis, the Board finds that service connection for bladder cancer is warranted. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah B. Richmond, 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.