Citation Nr: 21011376 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 14-43 040 DATE: March 1, 2021 ORDER Entitlement to service connection for bladder cancer is granted. Entitlement to service connection for prostate cancer is denied. Entitlement to service connection for cause of death is granted. Entitlement to a temporary total rating for surgical treatment is dismissed. Entitlement to special monthly compensation based on the need for aid and attendance is dismissed. FINDINGS OF FACT 1. The Veteran’s bladder cancer manifested to a compensable degree subsequent to separation from service and is not attributable to intercurrent causes. 2. The preponderance of the evidence of record is against finding that the Veteran has had prostate cancer at any time during or approximate to the pendency of the claim.   3. The Veteran’s death was due to his service-connected bladder cancer. 4. There are no downstream rating issues on appeal. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bladder cancer are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for prostate cancer are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for the Veteran’s cause of death are met. 38 U.S.C. §§ 1110, 1310, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.312. 4. The Board lacks jurisdiction to consider entitlement to a temporary total rating for surgical treatment. 38 U.S.C. § 7105; 38 C.F.R. § 19.20. 5. The Board lacks jurisdiction to consider entitlement to special monthly compensation based on the need for aid and attendance. 38 U.S.C. § 7105; 38 C.F.R. § 19.20.   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to September 1968. He died in November 2010 and his surviving spouse was substituted as the appellant. Although the supplemental statement of the case denied service connection for bladder cancer separate from service connection for cancer of the pelvis region, these are better understood to be the same course of metastatic cancer. As the medical records refer to the cancer as bladder cancer, the Board will consider it all together under the heading of bladder cancer. Service Connection 1. Entitlement to service connection for bladder cancer On January 1, 2021 Congress overrode the Presidential veto of the National Defense Authorization Act for Fiscal Year 2021 and it became Public Law No. 116-283. Section 9109 of that law amended 38 U.S.C. § 1116(a)(2) to add bladder cancer to the list of presumptive conditions for exposure to herbicide agents, e.g. Agent Orange. The Veteran has already been determined to have been exposed to herbicide agents. The new presumption of service connection thereby applies to his case. Although the VA medical examination pointed to a lifetime of smoking as an additional risk factor, this risk factor was not stated definitively enough in the opinions to rebut the presumption afforded to the Veteran. Service connection for bladder cancer shall be presumed. 38 C.F.R. §§ 3.303, 3.307, 3.309 2. Entitlement to service connection for prostate cancer The appellant alleges that the Veteran suffered from prostate cancer, which she states was the result of his active service. To establish service connection, there must exist medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); 38 C.F.R. § 3.303 (a). For certain diseases, to include prostate cancer, with a relationship to herbicide agent exposure, a presumption of service connection arises if the disease manifests to a degree of 10 percent or more following service in the Republic of Vietnam any time during the period from January 9, 1962, to May 7, 1975, or following service in a unit that operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have been applied at any time during the period from April 1, 1968, to August 31, 1971. 38 U.S.C. § 1116 ; 38 C.F.R. §§ 3.307 (a)(6)(i)(iv), 3.309(e). The record, in pertinent part, shows that he underwent a cystoprostatectomy in April 2010. The matter was Remanded in July 2020 to address the questions of whether the procedure was an indication that the Veteran had prostate cancer or whether prostate cancer was otherwise diagnosed at any time prior to his death. An opinion addressing these questions was obtained in August 2020. In addressing the April 2010 cystoprostatectomy, the VA examiner, who is a physician, and on review of the operative report, noted that “The patient is a 60-year-old gentleman who was diagnosed with muscle invasive bladder cancer. The patient was initially consulted and given all his treatment options. The patient agreed to undergo neoadjuvant chemotherapy followed by radical systolic cystectomy. The patient underwent 4 cycles of gemcitabine and cis-platinum neoadjuvant chemotherapy. The patient tolerated the chemotherapy well and now presents for radical cystectomy for completion of his treatment”. In that regard, he noted that the procedure was “clearly” for the bladder cancer, and that there was no mention of prostate cancer. As service connection requires a current disability and as the Veteran did not have prostate cancer at any time during his lifetime, service connection must denied. 3. Entitlement to service connection for cause of death The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. See 38 U.S.C. § 1310; 38 C.F.R. § 3.312 (a). For a service-connected disability to be considered the primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312 (b). In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially, that it combined to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c)(1). The Veteran’s death certificate listed cardiopulmonary arrest due to metastatic bladder cancer as his cause of death. As the Veteran is now service connected for bladder cancer, his cause of death should also be service connected. 4. Entitlement to a temporary total rating for surgical treatment 5. Entitlement to special monthly compensation based on the need for aid and attendance Although raised as freestanding issues, the issues of a temporary total rating (TTR) and entitlement to special monthly compensation (SMC) are intertwined with the downstream issues of the rating level and effective date of the now Veteran’s service-connected bladder cancer. As the agency of original jurisdiction has not yet considered the downstream issue, the appellant could not yet have filed a notice of disagreement for these issues and could not have perfected an appeal. 38 C.F.R. § 19.20 (previously at 20.200). Accordingly, the Board lacks jurisdiction to decide the issues and they must be dismissed. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). The Board acknowledges that in its July 2020 decision it remanded the TTR and SMC issues as intertwined with the issue of service connection for cancer. However, explained above, this remand was incorrect as neither issue was not yet ripe for adjudication. The appellant remains free to pursue these issues as part of the downstream rating process of the granted bladder cancer and may appeal at that time if the claim is denied. The Board regrets any confusion that this oversight causes to the appellant. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Paul Saindon, Special 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.