Citation Nr: 21076488 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 16-00 449 DATE: December 23, 2021 ORDER Entitlement to service connection for bladder cancer as due to herbicide exposure is granted. REMANDED Entitlement to an increased disability rating in excess of 10 percent for left painful metatarsal calluses is remanded. Entitlement to an increased disability rating in excess of 10 percent for right painful metatarsal calluses is remanded. Entitlement to service connection for a back injury, to include degenerative arthritis and intervertebral disc syndrome, is remanded. FINDING OF FACT The Veteran was exposed to herbicide agents during active service and his current bladder cancer disability is presumed to be related to such exposure. CONCLUSION OF LAW The criteria for service connection for bladder cancer as due to herbicide exposure have been met. 38 U.S.C. §§ 1110, 1116(a)(2), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION As a preliminary matter, the Veteran filed an original claim for service connection for a bladder condition in October 1991 that was denied in a July 1992 rating decision. Claims that were previously disallowed typically require new and material evidence to reopen the claims. However, 38 U.S.C. § 1116(a)(2) was recently amended to include bladder cancer in the list of diseases presumptively associated with exposure to certain herbicide agents. See National Defense Authorization Act for Fiscal Year 2021, Pub. L. 116-283 (enacted January 1, 2021). Given that new and material evidence is not required when an intervening liberalizing law creates a new basis for entitlement to benefits that did not exist at the time of the prior denial, the Board finds that new and material evidence is not required to reopen the claim of entitlement to service connection for bladder cancer. See Spencer v. Brown, 4 Vet. App. 283, 288-89 (1993), aff'd 17 F.3d 368 (Fed. Cir. 1994). Service Connection for Bladder Cancer Service connection may be granted for 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). Additionally, for those veterans exposed to an herbicide agent during active service, certain diseases shall be presumptively service connected, even when there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are met. 38 C.F.R. § 3.309(e). 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. See 38 C.F.R. § 3.307(a)(6). The Veteran contends that his bladder cancer is etiologically related to service. The Board concludes that the Veteran's bladder cancer is presumed to be related to in-service exposure to herbicide agents in the Republic of Vietnam. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Private treatment records, to include a June 2017 correspondence from Dr. J.H., show the Veteran had a diagnosis of bladder cancer during the appeal period. Thus, the question becomes whether the current disability is related to service. The Veteran's discharge certificate and service treatment records establish the Veteran had active service in the Republic of Vietnam from approximately 1969 to 1970. 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. 38 C.F.R. § 3.307(a)(1)(iii). As the Veteran had service in the Republic of Vietnam during the presumptive period, it is presumed that the Veteran was exposed to herbicide agents during active service. Additionally, 38 U.S.C. § 1116(a)(2) was amended effective January 1, 2021 to include bladder cancer in the list of diseases presumptively associated with exposure to certain herbicide agents. In sum, there is evidence of a diagnosis of bladder cancer and in-service herbicide exposure. Additionally, bladder cancer is a disease subject to presumptive service connection, and it manifested to a compensable degree. Accordingly, the Board finds that service connection is warranted on a presumptive basis. The claim for service connection for bladder cancer is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Having reviewed the record, the Board finds remand is warranted for the issues of increased disability ratings for left and right painful metatarsal calluses and service connection for a back disability. First, a number of VA treatment records were associated with the claims file before and after the appeal was transferred to the Board. As the Veteran has not submitted a waiver of agency of original jurisdiction (AOJ) review of these records, remand is warranted so that the AOJ may review this evidence in the first instance. Additionally, with respect to the issues of increased ratings for left and right metatarsal calluses, remand is warranted for additional development and examination. During the August 2021 hearing, the Veteran testified that he recently had an X-ray to determine whether further surgical treatment was needed to treat his condition. This indicates that there are outstanding VA treatment records and a potential worsening of symptoms. Accordingly, remand is warranted to obtain updated treatment records related to the x-ray from Leavenworth VA Medical Center and a new examination to assess the severity of the Veteran's calluses. Further, with respect to the issue of service connection for a back disability, remand is warranted for additional development and examination. The November 2015 VA examination does not provide an opinion on whether the Veteran's back disability is aggravated by calluses. Additionally, the examiner identified relevant medical records that may be missing. Accordingly, remand is warranted. The Board acknowledges that the record contains positive January 2015 and March 2015 opinions. However, further clarification is needed as the January 2015 and March 2015 provider only alludes to back pain and issues and did not identify any back diagnoses. Further, she did not indicate whether the claims file, to include any service treatment records, were reviewed. Accordingly, the Board cannot make a fully-informed decision based on the evidence of record. On remand, an attempt should be made to obtain the medical records identified by the November 2015 VA examiner and schedule a new examination to assess the etiology of the current back disability. Finally, any outstanding VA treatment records from May 2021 to present should be obtained and associated with the record with the proper authorization from the Veteran. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for community medical records relating to his back injury, radiographic results, and subsequent surgery in approximately 2005 (as identified by the November 2015 VA back examiner). Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's VA treatment records for the period from May 2021 to present, to include records from Leavenworth VAMC relating to a reported X-ray of the Veteran's feet. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left and right painful metatarsal calluses. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 4. After completion of directive 1, schedule the Veteran for an examination for his claimed back disability, to include degenerative arthritis and intervertebral disc syndrome. The examiner must review the claims file. The examiner is asked to provide a response to the following: a) Is the disability at least as likely as not related to service, to include operating heavy machinery related to his military occupational specialty of aircraft repairman? b) Is the disability at least as likely as not proximately due to service-connected left and right metatarsal calluses? c) Is the disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected left and right metatarsal calluses? The examiner must consider the January 2015 and March 2015 opinions indicating that the Veteran's back issues are exacerbated by ill-fitting boots and deep calluses that resulted in the Veteran altering his gait to relieve his foot pain. (d) With respect to the degenerative arthritis diagnosis only, is it at least as likely as not that it (1) began during active service, (2) manifested within 1 year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Vang, 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.