Citation Nr: 21008687
Decision Date: 02/17/21	Archive Date: 02/17/21

DOCKET NO. 17-26 686
DATE: February 17, 2021

ORDER

Entitlement to service connection for bladder cancer is granted.

FINDING OF FACT

1. The Veteran served in Vietnam and therefore is presumed to have been exposed to herbicide agents during service.

2. The Veteran has a current diagnosis of bladder cancer.

CONCLUSION OF LAW

The criteria for service connection for bladder cancer are met. 38 U.S.C. §§ 1110, 1116; 38 C.F.R. §§ 3.102, 3.303, 3.307; William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (“NDAA FY 21”), Pub. L. No. 116-283, Stat. (2021), Title XCI, Sec. 9109.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from July 1968 to February 1970, including service in the Republic of Vietnam.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

In January 2020, the Veteran testified before the undersigned.  In March 2020, the Board remanded these matters for additional development.

Here, the Veteran asserts that his bladder cancer was caused by his exposure to herbicide agents during his service in the Republic of Vietnam.  See June 2016 VA Form 21-526EZ, June 2016 VA Form 21-4138, Veteran lay statement.

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.   §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 C.F.R. § 3.307 are met, even though there is no record of such disease during service. 

During the pendency of this appeal, Congress enacted the NDAA FY 21, Pub. L. No. 116-283, Stat. (2021), Title XCI, Section 9109, which in pertinent part, added bladder cancer to the list of diseases presumptively associated with exposure to herbicide agents. 

The Veteran has a current diagnosis of bladder cancer. See May 2016 VA treatment records, May 2020 VA examination report.

The Veteran’s Service Personnel Records and DD Form 214 demonstrate that he served in the Republic of Vietnam during his active duty service.   As such, he is presumed to have been exposed to herbicide agents therein. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii).  Indeed, there is no affirmative evidence to the contrary.

Accordingly, as the Veteran is presumed to have been exposed to herbicide agents in service and is now diagnosed with bladder cancer, presumptive service connection is warranted.  To the extent the May 2020 VA examiner opined that the Veteran’s bladder cancer was less likely than not related to his presumed exposure to herbicide agents, the Board finds the opinion conclusory, as it is not supported by medical rationale.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two).  Critically, the presumption of service incurrence has not been rebutted by competent medical evidence of an intercurrent injury or disease. See 38 C.F.R. § 3.307(d).

Accordingly, the benefit sought on appeal is granted in full.  

 

 

S. BUSH

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	G. Rouse, 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.