Citation Nr: 21075235 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 19-37 239 DATE: December 17, 2021 ORDER Entitlement to service connection for bladder cancer, to include as due to inservice exposure to herbicide agents, is granted. FINDINGS OF FACT 1. The Veteran had active duty service in the Republic of Vietnam during the Vietnam Era and is presumed to have been exposed to herbicide agents during his active duty service. 2. The Veteran's bladder cancer is presumed to be etiologically related to his in-service exposure to herbicide agents. CONCLUSION OF LAW The criteria for entitlement to service connection for bladder cancer have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from November 1962 to November 1966. His service personnel records confirm that he had active duty service in the Republic of Vietnam. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in October 2021. A transcript of that hearing is associated with the claims file. Service Connection Entitlement to service connection for bladder cancer, to include as due to inservice exposure to herbicide agents Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred or a disease contracted in active service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran contends that service connection is warranted for bladder cancer due to exposure to herbicide agents during active duty service. In this case, private treatment records show that the Veteran was diagnosed with bladder cancer in 2015. Therefore, a current disability is established. Next, the Veteran is presumed to have been exposed to herbicide agents during his active duty service. 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 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The Veteran's service personnel records confirm that he served in the Republic of Vietnam during his active duty service; therefore, he is presumed to have been exposed to herbicide agents during his active duty service. Last, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Pursuant to The National Defense Authorization Act for Fiscal Year 2021, P.L. 116-283, § 6501, 134 Stat. 3388 (Jan. 1, 2021), bladder cancer was added to the list of conditions presumptively associated with exposure to herbicide agents. 38 U.S.C. § 1116(a)(2)(J). The Board concludes that the evidence in this case supports entitlement to service connection for bladder cancer. Because the Veteran's service personnel records confirm that he served in the Republic of Vietnam during the relevant period and is thus presumed to have been exposed to herbicide agents and the Veteran has been diagnosed with bladder cancer, service connection for bladder cancer is warranted on a presumptive basis. Accordingly, service connection for bladder cancer is granted. See 38 C.F.R. §§ 3.307, 3.309; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REMANDED Entitlement to service connection for a chronic back disorder is remanded. Entitlement to service connection for a thyroid disorder, to include as due to inservice exposure to herbicide agents is remanded. Entitlement to service connection for hypertension, to include as due to inservice exposure to herbicide agents is remanded. Entitlement to service connection for chronic kidney disease, to include as due to inservice exposure to herbicide agents is remanded. REASONS FOR REMAND 1. Entitlement to service connection for a chronic back disorder During his October 2021 hearing before the Board, the Veteran testified that he had a cyst removed from his back during his active duty service. His service treatment records confirm that a cyst was identified on the right side of the Veteran's back in January 1966, and he was referred to the hospital for removal. During his October 2021 hearing, the Veteran explained that he continues to have back pain from that surgery. He also alleged that his back pain is related to his duties during active duty service, which included lifting heavy equipment and bending. The medical evidence of record documents diagnoses of a sebaceous cyst on the right lower back,spinal stenosis, and osteoarthritis. The Veteran has not undergone a VA examination to assess the etiology of his back symptoms. Based on the in-service evidence of treatment for a back cyst during service and the Veteran's lay reports regarding his in-service duties; the current evidence of a back cyst and spinal stenosis; and the Veteran's lay statement that he continues to have back pain from service, a VA examination is warranted to address the etiology of the Veteran's back disorder. 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 2. Entitlement to service connection for a thyroid disorder, to include as due to inservice exposure to herbicide agents; entitlement to service connection for hypertension, to include as due to inservice exposure to herbicide agents; and entitlement to service connection for chronic kidney disease, to include as due to inservice exposure to herbicide agents The Veteran contends that his thyroid disorder, hypertension, and kidney disorder were caused by or incurred as a result of in-service exposure to herbicide agents. As noted above, the Veteran's service personnel records confirm that he served in the Republic of Vietnam during his active duty service; therefore, he is presumed to have been exposed to herbicide agents during his active duty service. However, the Veteran's diagnosed hyperparathyroidism, hypertension, and chronic kidney disease are not among the list of diseases or disorders for which presumptive service connection based upon herbicide exposure may be awarded. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii); 38 C.F.R. § 3.309. Nevertheless, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The provisions of Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). The Veteran has not been provided with a VA examination to determine the etiology of his hypertension, thyroid disorder, or kidney disorder. While the Veteran's service treatment records do not reflect findings pertinent to hypertension, a thyroid disorder, or a kidney disorder, as noted above, the Veteran is presumed to have been exposed to herbicide agents during his active duty service. Additionally, there are current diagnoses of hypertension, hyperparathyroidism, and chronic kidney disease documented in the medical records. Last, in a May 2018 Notice of Disagreement, the Veteran reported that he was "advised by medical professionals that the likelihood" of a relationship between his diagnosed disorders and exposure to herbicide agents was "reasonable." In light of the Veteran's report that medical professionals told him that there was a reasonable likelihood of a relationship between his diagnosed disorders and his inservice exposure to herbicide agents, a VA examination is warranted to determine the etiology of his hypertension, thyroid disorder, and kidney disorder. 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i); see also McLendon, 20 Vet. App. at 83. The matters are REMANDED for the following action: 1. Provide the Veteran with a VA examination to address the nature and etiology of his back disorder. The Veteran's claims file, all electronic records, and a copy of this remand must be reviewed by the examiner, and the examiner must state that this evidence was reviewed in the examination report. Based upon a complete review of the evidence of record, to include the Veteran's lay statements and testimony documented in the record, the VA examiner must provide an opinion as to whether it is it at least as likely as not (i.e., a 50 percent probability or more) that the Veteran's back disorder diagnosed as a back cyst, spinal stenosis, and osteoarthritis, were caused or incurred as a result of service, to include whether they had their onset in active duty service. A complete rationale for all opinions must be provided. The examiner is advised that the Veteran is competent to report observable symptoms. 2. Provide the Veteran with a VA examination by appropriate physician to determine the etiology of his hypertension, hyperparathyroidism and/or thyroid disorder, and chronic kidney disease. The Veteran's claims file and a copy of this remand must be reviewed by the examiner, and the examiner must state that this evidence was reviewed in the examination report. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon a complete review of the evidence of record, to include the Veteran's lay statements and testimony, the VA examiner must opine whether it is at least as likely as not (i.e., a 50 percent probability or more) that the Veteran's hypertension, thyroid disorder and/or hyperparathyroidism, and/or chronic kidney disease was incurred in or caused by his active duty service, to include in-service exposure to Agent Orange. A complete rationale for all opinions must be provided. The examiner is advised that the Veteran is competent to report observable symptomatology. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Katz, 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.