Citation Nr: 21010275 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 20-29 827 DATE: February 24, 2021 ORDER The petition to reopen the previously denied claim of entitlement to service connection for urinary bladder cancer, or residuals thereof, to include as secondary to herbicide agent exposure, is granted. Entitlement to service connection for urinary bladder cancer, or residuals thereof, to include as secondary to herbicide agent exposure, is granted. FINDINGS OF FACT 1. The regional office (RO) denied service connection claim for urinary bladder cancer in a July 2015 rating decision. 2. The evidence received since the July 2015 rating decision is new and material and relates to an unestablished fact necessary to substantiate the claim for a urinary bladder cancer, or residuals thereof, to include as secondary to herbicide agent exposure. 3. Resolving reasonable doubt in favor of the Veteran, his urinary bladder cancer, or residuals thereof, is related to his exposure to herbicide agents. CONCLUSION OF LAW 1. Evidence received since the July 2015 rating decision is new and material and the claim for service connection for a urinary bladder cancer, or residuals thereof, to include as secondary to herbicide agent exposure, is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for urinary bladder cancer, or residuals thereof, have been met.  38 U.S.C. §§ 1110, 1112, 1116; 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 Army from October 1964 to December 1969. His awards include, among many, Vietnam Service Medal, Vietnam Campaign Medal and Conduct Medal First Award. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2020 Statement of the Case (SOC) of a Department of Veterans Affairs (VA) RO. Though it appears that the RO has reopened the claims for service connection for a urinary bladder cancer, or residuals thereof, the Board must determine on its own whether new and material evidence has been submitted to reopen the claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). For the purpose of more accurately reflecting the scope of the Veteran’s claim, the issue of service connection for urinary bladder cancer has been recharacterized as shown on the title page. Pursuant to 38 C.F.R. § 20.900(c), the Veteran’s appeal has been advanced on the docket.  38 U.S.C. § 7107(a)(2).   1. Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for urinary bladder cancer, or residuals thereof, to include as secondary to herbicide agent exposure. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. The evidence need only relate to one unestablished fact necessary to substantiate the claim to be material. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened. 38 C.F.R. § 3.156(a). When determining whether the submitted evidence meets the definition of new and material, VA must consider whether the new evidence, when considered with the evidence of record, at least triggers VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Shade, supra. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection for urinary bladder cancer was denied in a July 2015 rating decision on the basis that there was no nexus to service. The Veteran did not initiate an appeal of that decision and thus, it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. No evidence was constructively or physically of record within one year of the July 2015 determination. 38 C.F.R. § 3.156(b); see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). In determining whether new and material evidence is required to reopen a claim, the focus must be on whether the evidence amounts to a new claim “based upon distinctly diagnosed diseases or injuries” from the claim considered in the prior final decision. Velez v. Shinseki, 23 Vet. App. 199, 204 (2009); Boggs v. Peake, 520 F.3d 1330, 1335-36 (2008). In the instant case, the present claim for service connection for urinary bladder cancer, or residuals thereof, is based on the same symptoms and etiology reported by the Veteran in connection with his previous claim for service connection for urinary bladder cancer. In fact, in the July 2015 rating decision, the RO specifically addressed the Veteran’s urinary bladder cancer. Thus, the urinary bladder cancer, or residuals thereof, claim presently on appeal is a continuation of the Veteran’s previous claim for service connection for urinary bladder cancer and new and material evidence is required. At the time of the July 2015 rating decision, the pertinent evidence of record included service treatment records (STRs), private treatment records, and statement from the Veteran. Since the July 2015 rating decision, private treatment records, medical journals, September 2016 correspondence from the Veteran, February 2019 correspondence from the Veteran’s representative, and October 2020 private opinion have been added. As this evidence was not before the VA or considered in the prior denial, it is new. This evidence is also material as it relates to an unestablished fact necessary to substantiate the claim, namely, evidence of a potential link between the Veteran’s disability and his active military service. As such, since new and material evidence has been received, the request to reopen the prior denial is warranted. 38 C.F.R. § 3.156. The Board will adjudicate the claim on the merits and given the disposition below, there is no prejudice to the Veteran. 2. Entitlement to service connection for urinary bladder cancer, or residuals thereof, to include as secondary to herbicide agent exposure. The Veteran contends that his urinary bladder cancer, or residuals thereof, is related to herbicide agent exposure during his active military service in the Republic of Vietnam. For the reasons that follow, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may be established for chronic diseases, to include cancer, manifesting to a certain degree within a year after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). In addition, service connection may be established on a presumptive basis for certain diseases resulting from exposure to herbicide agents, such as Agent Orange, if a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, absent affirmative evidence to establish that the Veteran was not exposed to such herbicide agent during that service. See 38 C.F.R. § 3.307(a)(6)(iii). If a Veteran is presumably exposed to an herbicide agent, then there is a presumption of service connection for the specified enumerated diseases.  38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a) and 3.309(e). The National Defense Authorization Act for Fiscal Year 2021, Pub. L. No. 116-283, amended 38 U.S.C. § 1116(a)(2) to include parkinsonism, bladder cancer, and hypothyroidism in such enumerated diseases. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Turning to the evidence of record, it is undisputed that the Veteran has had urinary bladder cancer, or residuals thereof, during the appeal period. Post-service medical records reflect that the Veteran was diagnosed with urinary bladder cancer in December 2014. Thus, the first element for service connection has been established. Next, with specific regard to the Veteran’s primary assertion that he was exposed to herbicide agents while on active duty in the Republic of Vietnam, his STRs are silent for complaints of, treatment for, or diagnosis of a urinary bladder cancer. His military personnel records show that he served in the Republic of Vietnam during the presumptive period. See DD Form 214. The Board also notes the VA conceded exposure to herbicide agents during service. See August 2020 SOC. As such, the second element for service connection is satisfied. Turning to the third element of service connection, a nexus, resolving all reasonable doubt in favor of the Veteran, the Board finds that this element is also established. 38 U.S.C. § 5107(b); Gilbert, supra. Significantly, the Board finds that the Veteran is presumed to have been exposed to herbicide agents during his active service. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Further, as he is presumed to have been exposed to Agent Orange, the presumption of service connection for bladder cancer, attaches. See 38 U.S.C. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Accordingly, service connection for bladder cancer, or residuals thereof, to include as secondary to herbicide agent exposure is warranted. (Continued on the next page) Thus, the claim is granted. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Kuzniar, 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.