Citation Nr: 21076140 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 13-22 249A DATE: December 22, 2021 ORDER Entitlement to service connection for bladder cancer is granted. Entitlement to service connection for sleep apnea is granted. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam and his bladder cancer is presumed to have occurred as a result of active service. 2. The evidence is in equipoise as to whether the Veteran's sleep apnea, manifested as central apneas, was proximately due to or the result of his service-connected coronary artery bypass grafting. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bladder cancer have been met. 38 U.S.C. §§ 1110, 1116; 38 C.F.R. §§ 3.303, 3.307. 2. The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is the surviving spouse and recognized substitute of the Veteran who served on active duty from January 1969 to December 1971. The Veteran died in April 2017. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). VA records show the appellant failed to report, without apparent good cause, for a scheduled video conference in October 2021. As such, the request for a hearing is considered as having been withdrawn. 38 C.F.R. § 20.704(d). Service Connection Claims Under the relevant laws and regulations, 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; 38 C.F.R. § 3.303(a). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b). Compensation may be established for any incremental increase in disability (any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase), regardless of its permanence. Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). VA has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided. Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102. Bladder Cancer Veterans diagnosed with an enumerated disease who, during active 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 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 C.F.R. § 3.307(a)(6)(iii). The term "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 7, 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). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For an herbicide exposed veteran bladder cancer may be presumed service connected. 38 U.S.C. § 1116(a)(2)(J). The National Defense Authorization Act (NDAA) for Fiscal Year 2021 added three disorders, including bladder cancer, to the list of diseases presumptively associated with exposure to herbicide agents. The Veteran is shown to have served in the Republic of Vietnam from January 1971 to December 1971. Private treatment records dated in June 2012 show a bladder tumor biopsy revealed urothelial (transitional cell) carcinoma. Subsequent treatment records noted diagnoses of bladder cancer without opinion as to etiology. The Veteran's bladder cancer is presumed to have occurred as a result of active service. The appeal as to this matter is granted. Obstructive Sleep Apnea The Veteran asserted that he had obstructive sleep apnea as a result of service. In his April 2011 application for VA benefits he reported that the disorder began in approximately 1995. VA records show service connection was established, including for coronary artery bypass grafting. Service treatment records are negative for complaint, treatment, or diagnosis of sleep apnea. The Veteran's December 1971 separation examination revealed no abnormalities associated with sleep apnea. Private treatment records dated in September 1997 noted the Veteran complained of excessive daytime sleepiness and snoring which he had noticed approximately two years earlier. It was noted his spouse had noted snoring for a long time and possibly had witnessed some apneas. An August 1997 sleep study was noted to have confirmed obstructive sleep apnea. A November 2000 sleep study included an impression of mild to moderately severe obstructive sleep apnea that was significantly improved compared to 1997 and the Veteran's subsequent weight loss. A December 2010 sleep study found the vast majority of the Veteran's respiratory events were central apneas that may be idiopathic or possibly related to a history of cardiac disease. The evidence is in equipoise as to whether the Veteran's sleep apnea, manifested as central apneas, was proximately due to or the result of his service-connected coronary artery bypass grafting. Although the medical evidence of record demonstrates no evidence of obstructive sleep apnea prior to approximately 1995, the December 2010 sleep study found he had central apneas that were either idiopathic or related to a history of cardiac disease. Resolving all reasonable doubt in favor of the claimant, the Veteran's sleep apnea is found to be secondary to his service-connected cardiac disability. The appeal as to this matter is granted. T.D. JONES Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Douglas 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.