Citation Nr: A21020631 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 211206-202143 DATE: December 29, 2021 ORDER Service connection for right ureteral cancer is granted. FINDING OF FACT The Veteran's right ureteral cancer is related to in-service herbicide agent exposure. CONCLUSION OF LAW The criteria for service connection for right ureteral cancer are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1958 to June 1984. The rating decision on appeal was issued in November 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the December 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Service connection for right ureteral cancer is granted. The Veteran contends he has current right ureteral cancer that is related to in-service herbicide agent exposure. The Veteran's Intent to File was received on January 23, 2020, and the claim was fully developed within one year on January 8, 2021. To establish service connection a Veteran must generally 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, 1167 (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). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of §3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of §3.307(d) are also satisfied. AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). (emphasis added.) 38 C.F.R. § 3.309 (e). For the purposes of this section, 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). The diseases listed at § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307 (a)(6)(ii). VA has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 68 Fed. Reg. 27630-27641 (2003). The Board concludes that the Veteran has a current disability that is related to in-service herbicide agent exposure. 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). In November 2021, the AOJ made the following favorable findings. The Veteran has been diagnosed with a disability. Private medical record from Redding Urologic Associates dated October 5, 2020, indicates a diagnosis of right ureteral cancer. A VA examination report dated October 13, 2021, confirmed a diagnosis of right ureteral cancer. Evidence shows that the Veteran performed service in Vietnam. Service personnel records received on February 19, 2020, indicate service in Vietnam. The Veteran was exposed to Agent Orange during military service. Exposure to herbicide agents is conceded based on the Veteran's duty or visitation (boots on ground) in the Republic of Vietnam. The Board does not now disturb these findings. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of the claim. There are none against the claim. The Veteran's cancer is not a presumptive disease for which service connection may be granted based on his proven exposure to herbicide agents. The Board observes that in Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that 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. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994), reversing in part Combee v. Principi, 4 Vet. App. 78 (1993). The United States Court of Appeals for Veterans Claims has specifically held that the provisions of Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). The evidence in favor of the claim includes a July 2021 private medical opinion. The private physician cited the Veteran's five tours of duty in Vietnam between 1962 and 1968 where he conducted repeated combat patrols in Agent Orange defoliated areas and contaminated rivers. The physician also cited to the Veteran's being repeatedly berthed in small camps on major water ways that used the filtered but untreated water for showering and other washing. It was estimated that the Veteran had approximately 30 months of exposure to Agent Orange over 5 tours. The Board notes this history is consistent with the circumstances of the Veteran's military occupational specialty as a member of a SEAL team. The physician then provided cites to medical evidence addressing a link between the length of exposure to Agent Orange and the increased risk of cancer development, particularly in the bladder and prostate. Based on the history provided by the Veteran and his medical research and considering the rarity of squamous cell carcinoma of the ureter, the physician found that it was more likely than not that the Veteran's cancer was caused by his repeated Agent Orange exposure. The Board finds this opinion is entitled to probative weight. It is based on an accurate factual background and also medical research and also includes citations to the medical evidence pertinent to the Veteran's individual history. The opinion is based on an adequate rational. The VA examiner who prepared the October 2021 examination report noted that the Veteran was diagnosed with right ureteral squamous cell cancer. The examiner found it at least as likely as not that the cancer was linked to exposure to herbicide agents. The rational provided was that the Veteran has been diagnosed with right ureteral cancer which is a cancer of the genitourinary tract with potential exposure to herbicide agents while serving in Vietnam. The examiner noted there is evidence that herbicide agent exposure is linked to genitourinary cancer. The examiner also cited to a prior Board decision which granted service connection for ureteral cancer. The Board notes prior Board decisions are not precedential. However, even removing this evidence, the rationale provided for the opinion is still positive with some probative value. It is based on an accurate factual background and also medical research and also includes citations to the medical evidence pertinent to the Veteran's individual history. There are no probative medical opinions which weigh against the Veteran's claim. The Board finds the preponderance of the probative evidence demonstrates that the Veteran's cancer is linked to his exposure to herbicide agents while on active duty. The Board finds that service connection for right ureteral cancer is warranted on a direct basis. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The claim is granted. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James Hekel 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.