Citation Nr: 21073277 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 18-52 525 DATE: December 8, 2021 ORDER Entitlement to service connection for bladder cancer is granted. FINDINGS OF FACT 1. By virtue of the Veteran's service in the Republic of Vietnam, in-service exposure to an herbicide agent is conceded. 2. Pathological testing completed in March 2009 confirmed a diagnosis of bladder cancer. CONCLUSION OF LAW The criteria to establish service connection for bladder cancer are met. 38 U.S.C. §§ 1110, 1116 (a)(2), 1131, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309 (e). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from July 1967 to August 1969, to include service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) from a January 2016rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. In December of 2021, the Veteran presented oral testimony in support of his appeal at a Board hearing that was conducted by the undersigned Veterans Law Judge (VLJ) via videoconferencing equipment. A transcript of this hearing is of record. Preliminary matter The Board observes that, prior to the filing of the claim for which this appeal stems, the Veteran filed several claims to establish service connection for bladder cancer, and the AOJ denied such in rating decisions issued in November 2011, October 2012, and December 2014. As such, the AOJ characterized the issue on appeal as whether new and material evidence had been received to reopen a previously-denied claim to establish service connection for bladder cancer throughout the pendency of the current appeal. Generally, new and material evidence must be presented or secured to reopen a previously denied claim. 38 U.S.C. § 5108(a); 38 C.F.R. § 3.156(a). However, there are some exceptions to this requirement; notably, new and material evidence is not required when an intervening liberalizing law creates a new basis for entitlement to benefits that did not exist at the time of the prior denial. Spencer v. Brown, 4 Vet. App. 283, 288-89 (1993). As will be discussed below, the dispositive matter in the present appeal is such a liberalizing law, and thus, a de novo review of the previously-denied claim is required because the change in law itself changes the factual basis of the claim. Id. at 289. 1. Entitlement to service connection for bladder cancer, to include as due to in-service exposure to an herbicide agent, is granted. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. The legal authority governing claims for service connection based on herbicide exposure is pertinent to this claim. Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicide agents, to include Agent Orange, for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C. § 1116 (f) and 38 C.F.R. § 3.307 (a)(6)(iii). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, the diseases listed under 38 C.F.R. § 3.309 (e) shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). 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. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). However, the 2021 NDAA (enacted January 1, 2021, over presidential veto) 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. Analysis The Veteran's service personnel records confirm that his active duty included service in the Republic of Vietnam from December 1967 to January 1968, and thus, in-service exposure to an herbicide agent is conceded. Further, pathological testing completed in March 2009 confirmed a diagnosis of bladder cancer. Based on facts found, he is now entitled to consideration of the presumptive provisions of 38 U.S.C. § 1116 (a)(2). After doing so, the Board finds that the criteria to establish service connection for bladder cancer have been met and that entitlement to service connection for this disability is therefore warranted on a presumptive basis. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott W. Dale, 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.