Citation Nr: 21073790 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 18-40 436 DATE: December 10, 2021 ORDER Entitlement to service connection for status-post radical nephroureterectomy, transitional cell urothelial carcinoma is granted. FINDINGS OF FACT 1. The Veteran served in Vietnam and is presumed to have exposure to Agent Orange. 2. The probative evidence of record supports a finding that Veteran's transitional cell urothelial carcinoma has been linked to his active service, to include in-service exposure to Agent Orange. CONCLUSION OF LAW The criteria for service connection for transitional cell urothelial carcinoma have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309(e). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active-duty service with the United States Army from November 1969 to September 1971. This matter is before the Board of Veterans' Appeals (Board) from a September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board videoconference hearing before the undersigned Veteran's Law Judge in December 2021. 1. Entitlement to service connection for status-post radical nephroureterectomy, transitional cell urothelial carcinoma is granted. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. Generally, service connection requires three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In addition, service connection may be established on a presumptive basis for certain diseases resulting from exposure to herbicide agents, such as Agent Orange. if a Veteran served in Vietnam during the period from January 9, 1962 to May 7, 1975, absent affirmative evidence to establish that the Veteran was not exposed to such herbicide agent during that service. See 38 C.F.R. § 3.307(a)(6)(iii). If a Veteran is presumably exposed to an herbicide agent, then there is a presumption of service connection for the specified enumerated diseases. 38 U.S.C. § 1116; 38 C.F.R. §§3.307 (a) and 3.309(e). The Veteran's service in Vietnam and exposure to herbicide agents is undisputed. If the condition is not a specified enumerated disease, service connection on a direct basis may still be established. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis). The Veteran contends that his transitional cell urothelial carcinoma is due to Agent Orange exposure. VA regulations provide that certain diseases associated with exposure to herbicide agents, may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307 (a)(6) are met. 38 C.F.R. § 3.309 (e). Additionally, a Veteran may be service connected for a condition relating to exposure to herbicide agents even if the condition is not a presumptive condition, if proven on a direct basis. See Combee, 34 F.3d at 1044. With regard to the first element of service connection, medical evidence of a current disability has been established because the Veteran has a current diagnosis of post status radical nephroureterectomy, transitional cell urothelial carcinoma confirmed in a December 2014 private treatment record. With respect to the second element of service connection, in-service incurrence aggravation of a disease or injury, the Veteran's military personnel records reflect that the Veteran has qualified service in Vietnam and the Veteran's exposure to Agent Orange has been conceded. Thus, the second element is satisfied. Thus, the dispositive issue in this case is whether the Veteran's carcinoma is related to his in-service Agent Orange exposure. The record contains positive private nexus opinions. The Board agrees that grant of service connection is warranted. In July 2015, opinions were submitted by the Veteran's treating physician of 15 years, Dr. J.B., the Veteran's urological surgeon, Dr. M.C., and the Veteran's referring urological surgeon, Dr. M.P. They confirmed the Veteran's history of chronic hematuria and his eventual diagnosis of a malignant neoplasm in the ureter. They all noted that they personally reviewed the Veteran's medical history and his lay statements regarding Agent Orange exposure in Vietnam. It was noted that the Veteran's area of operation in Vietnam was an area sprayed thoroughly with Agent Orange. The physicians found that the Veteran was not a smoker, did not have a family history for the condition, and did not have any other risk factors for the carcinoma outside of the Agent Orange exposure. The physicians stated that Agent Orange was known to be a Group 1 human carcinogen. They determined that in their professional experience, and considering the medical literature from the U.S. agencies, there was a known association between Agent Orange and an increased incidence of cancer. Therefore, the physicians found that the Veteran's carcinoma was at least as likely as not due to Agent Orange exposure. The Board finds that the July 2015 medical opinions are entitled to significant probative weight because the opinions were based on an accurate history, were definitive and supported by detailed rationale that considered the lay and medical evidence of record. Importantly, the July 2015 medical opinion is uncontroverted. Accordingly, the Board finds the evidence supports a finding that the Veteran's status-post radical nephroureterectomy, transitional cell urothelial carcinoma is related to herbicide exposure. Service connection is granted. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board AK 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.