Citation Nr: 21074244 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 19-29 496 DATE: December 14, 2021 ORDER Entitlement to service connection for bladder cancer, to include as due to exposure to herbicides is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT 1. The Veteran was exposed to herbicide agents while serving in the Republic of Vietnam. 2. The Veteran has been diagnosed with bladder cancer. CONCLUSION OF LAW The criteria for entitlement to service connection for bladder cancer, to include as due to herbicide agent exposure, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1966 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for bladder cancer, to include as due to exposure to herbicides Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (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). Service connection may also 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). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When the preponderance of the evidence is against the claim, the claim must be denied. Id. If a veteran served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, he or she will be presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307(a)(6). Certain diseases will be presumed service-connected if a veteran was exposed to herbicide agents in service, even if there is no record of the disease during service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). During the pendency of this appeal, the National Defense Authorization Act for Fiscal Year (FY) 2021 (NDAA) was enacted on January 1, 2021 and amended 38 U.S.C. § 1116(a)(2) to add bladder cancer to the list of presumptive diseases associated with Agent Orange exposure. Based on the evidence, the Board finds the criteria for service connection for bladder cancer have been met. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.303, 3.307(a)(6), 3.309(e). First, the evidence shows that the Veteran has been diagnosed with a disability. An October 2019 VA treatment note indicates a diagnosis of bladder cancer. See Jun. 2020 CAPRI, p. 74. Further, his private physician, Dr. J.C., stated that she has followed him for low grade bladder cancer since 2014. See Jun. 2017 Medical Treatment Record Non-Government Facility, p. 2. Accordingly, the Board finds that the first element of service connection is met. See Shedden, supra. Next, the evidence shows that the Veteran was exposed to herbicide agents during service. In November 2010, upon special review of the Veteran's claims file, VA established that the Veteran served in the Republic of Vietnam. See Nov. 2010 Rating Decision Narrative. He was previously granted service connection for ischemic heart disease associated with herbicide exposure. Id. Accordingly, the second element of service connection is met. See Shedden, supra. As noted above, bladder cancer is a disease that is presumed service-connected if a veteran was exposed to herbicide agents in service. 38 U.S.C. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Thus, the third element of service connection is satisfied. See Shedden, supra. Therefore, service connection for bladder cancer is warranted. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. The Veteran contends that his sleep apnea is due to his active service. The Board notes that he has not yet been afforded a VA examination to determine the etiology of the condition. VA's duty to assist includes providing a medical examination when it is necessary to decide a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). First, the evidence of record indicates that the Veteran has a current diagnosis of sleep apnea. A July 2015 VA sleep study consult indicates that the Veteran was diagnosed with obstructive sleep apnea in October 2012. See Aug. 2019 CAPRI, p. 98. VA treatment records also indicate provisional diagnoses of obstructive sleep apnea and unspecified sleep apnea. Id. at 24, 136. Accordingly, the Board finds that the first element of McLendon is met. Next, the Veteran testified at a VA Decision Review Officer (DRO) hearing in April 2019 regarding the onset and symptoms of his sleep apnea. He responded in the affirmative when asked whether he had problems with snoring and falling asleep during the daytime during his service. See Apr. 2019 Hearing Transcript, p. 5. The Board notes that the Veteran is competent to describe symptoms and events observable to his senses. See Jandreau v. Nicholson, 493 F.3d 1372, 1377 (Fed. Cir. 2007). Accordingly, the Board finds that the second element of McLendon is met. The Board further finds that the evidence indicates that the Veteran's claimed disability may be associated with his in-service symptomatology of sleep apnea. In the April 2019 hearing, the Veteran responded in the affirmative when asked whether his issues had been continuous since service. See Apr. 2019 Hearing Transcript, p. 6. Further, his wife testified that when they married in 1970, approximately two years after the Veteran's separation from service, he had experienced problems sleeping, he would fall asleep during the day, his snoring worsened, and he would stop breathing during sleep. Id. The Board finds that these statements adequately indicate that the Veteran's sleep apnea may be associated with his in-service symptoms outlined above. Accordingly, as all elements of McLendon are met, the matter must be remanded in order to afford the Veteran a VA examination for his claim for service connection for sleep apnea. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his sleep apnea. Any indicated evaluations, studies, or tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion and the examination report should include a discussion of the Veteran's documented medical history and assertions. The examiner must address the following: (a.) Determine whether it is at least likely as not (a 50 percent probability or greater) that the Veteran's sleep apnea is related to his active duty service. In so determining, the examiner must address the Veteran and his spouse's April 2019 DRO hearing testimony regarding the Veteran's symptoms in and following service. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries and that his reports must be taken into account in formulating the requested opinions. The examiner must provide rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Watkins, Associate 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.