Citation Nr: 21073766 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 17-41 784 DATE: December 10, 2021 ORDER Entitlement to service connection for bladder cancer is granted. FINDING OF FACT 1. The appellant is presumed to have been exposed to herbicide agents based on his service in the Republic of Vietnam from January 1968 to January 1969. 2. The appellant's bladder cancer is at least as likely as not due to his presumed exposure to herbicide agents while serving in the Republic of Vietnam. CONCLUSION OF LAW The criteria for service connection for bladder cancer are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty in the United States Army from February 1967 to January 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied the appellant's claim for service connection for this service connection for bladder cancer. This decision was appealed in a notice of disagreement (NOD) received by VA in September 2015. A Statement of the Case (SOC) was issued by VA in June 2017. VA received the appellant's Substantive Appeal (Form 9) in August 2017, perfecting the appeal and requesting a hearing before the Board. This claim was previously denied in a May 2019 Board decision; however, due to miscommunication between the appellant and VA, he was not afforded a hearing before the Board prior to that decision. That decision was vacated by a Board decision in September 2019 and the appellant was scheduled for hearing before the Board. The appellant was afforded a hearing before the undersigned Veterans Law Judge, which took place in August 2021. A transcript of that hearing was added to the record on appeal. As an initial matter, claims for entitlement to service connection for posttraumatic stress disorder, hypertension, and a bilateral tremor of the hands were previously before the Board along with the claim on appeal here. In May 2019, the appeal was remanded to the RO for further adjudication. After new VA medical examinations were administered and new VA medical opinions were obtained in January 2020, these claims for service connection were granted in a May 2020 rating decision. As such, those issues are no longer on appeal as the grant of service connection is a full grant of the benefit sought. Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of downstream elements such as the disability rating or effective date assigned). 1. Entitlement to service connection for bladder cancer is granted. The appellant contends that his development of bladder cancer is due to his presumed exposure to herbicide agents during his period of active service. After a review of the evidence of record, the Board finds that the evidence establishes that the appellant's bladder cancer is at least as likely as not due to his presumed herbicide exposure while serving in the Republic of Vietnam from January 1968 to January 1969. As such, the Board concludes the criteria for entitlement to service connection are met and that the claim should be granted. 38 C.F.R. §§ 3.102, 3.303. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that such veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). An 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 6, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The list of enumerated diseases which are deemed to be associated with herbicide agent exposure was recently expanded to include bladder cancer. 38 U.S.C. § 1116 (amended by the William M. Thornberry National Defense Authorization Act for Fiscal Year 2021 (P.L. 116-283)). VA's Secretary has determined that there is no positive association between exposure to herbicide agents and any other condition for which VA has not specifically determined a presumption of service connection is warranted. See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2012, 79 Fed. Reg. 20,308 (Apr. 11, 2014). Despite the presumptive regulations, a claimant may establish service connection based on exposure to herbicide agents with proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Turning to the evidence of record, the Board notes the appellant's private medical records and VA treatment records show a diagnosis and treatment for bladder cancer during the period since he filed his claim for service connection for this disability in February 2015. Thus, the first element of service connection, a current disability, is met. Additionally, the Board notes the appellant's service personnel records document his service in the Republic of Vietnam, and as such, his exposure to herbicide agents is presumed, thereby establishing the second element of service connection. 38 C.F.R. § 3.307. As such, the question for before the Board is whether there is a link between the appellant's current bladder cancer and the in-service herbicide agent exposure. To that end, the Board notes that the appellant does meet the presumptive criteria, as established by the update in the law through the William M. Thornberry National Defense Authorization Act for Fiscal Year 2021 (P.L. 116-283), which occurred while his claim was pending. 38 U.S.C. § 1116. However, in order to ensure the appellant receives the maximum benefit allowed by law, the Board has still considered the appellant's claim on a theory of direct service connection. In August 2019, VA received a private medical opinion which determined the appellant's bladder cancer was more likely than not due to his presumed herbicide agent exposure. The examiner explained that recent medical studies and evidence showed a significant statistical correlation between higher rates of death due to bladder cancer among veterans presumed to have been exposed to herbicide agents than those who had not been exposed. The clinician who offered the private medical opinion has specialized in oncology and has substantial experience, all of which informs the opinion presented. The examiner also reviewed the relevant evidence in the claims folder, as well as the relevant new medical and statistical research on the topic of whether there is a link between bladder cancer and herbicide agent exposure. The opinion itself was well-reasoned, internally consistent, and is not otherwise contradicted by any of the other evidence of record. Notably, most of the data used to support the private medical opinion was the data that was relied on in adding bladder cancer to the list of diseases for which presumptive service-connection is granted following exposure to herbicide agents. As such, the Board affords this opinion significant probative value. See Nieves - Rodriguez v. Peake, 22 Vet. App. 295 (U.S. 2008) (explaining that most of the probative value of a medical opinion comes from its reasoning). There is no other competent medical evidence of record to weigh against the August 2019 private medical opinion. Considering this, the Board finds the evidence at least as likely as not supports the appellant's contention that his current bladder cancer was caused by his exposure to herbicide agents while serving in the Republic of Vietnam. As such, the Board grants the appellant the benefit of the doubt and concludes that the criteria for entitlement to service connection are met for this claim. 38 C.F.R. §§ 3.102, 3.303, 3.307. Importantly, as noted above, the grant of benefits is being done on the grounds of direct causation under 38 C.F.R. § 3.303, and not based solely on the addition of bladder cancer to the list of diseases statutorily presumed to be due to herbicide agent exposure. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kleponis, 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.