Citation Nr: 21011910 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 20-23 989 DATE: March 3, 2021 ORDER The application to reopen the claim for service connection for bladder cancer, to include as due to herbicide exposure, is granted. Entitlement to service connection for bladder cancer, to include as due to herbicide exposure, is granted. FINDINGS OF FACT 1. An August 2014 rating decision denied service connection for bladder cancer. The Veteran was notified of his rights but did not timely appeal the decisions or submit new and material evidence during the applicable appellate period. 2. The evidence associated with the claims file subsequent to the August 2014 rating decision denying service connection for bladder cancer, is new, not cumulative of evidence previously of record, and related to an unestablished fact necessary to substantiate the claim. 3. Resolving reasonable doubt in the Veteran’s favor, the Board finds a current diagnosis of bladder cancer. The Veteran served within 12 nautical miles of the Republic of Vietnam aboard the USS Reasoner and is presumed to have been exposed to designated herbicide agents. 4. The Veteran’s bladder cancer is presumed to have been caused by exposure to herbicides. CONCLUSIONS OF LAW 1. The August 2014 rating decision is final. 38 U.S.C. §§ 5108 (2012), 7105; 38 C.F.R. §§ 20.302, 20.1103 (2014). 2. New and material evidence sufficient to reopen the claim of service connection for bladder cancer has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a), (c) (2019). 3. The criteria for service connection for bladder cancer have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from March 1971 to January 1975. The matter comes before the Board of Veterans’ Appeals (Board) from an October 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In his May 2020 VA Form 9 Appeal to Board of Veterans’ Appeals the Veteran requested a Board video conference hearing, however in January 2021 correspondence, the Veteran, through his representative, withdrew his request for a Board hearing. As such the Board finds the Veteran’s hearing request has been withdrawn. The Veteran’s representative has requested to advance his case on the docket (AOD) in a January 2021 correspondence, as the Veteran has been diagnosed with active, metastatic bladder cancer. Herein, the Veteran’s motion has been considered and the undersigned is granting the Veteran’s request and his case has been advanced on the docket. New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” See id. The Veteran asserts that his bladder cancer is related to active service. The Board finds new and material evidence sufficient to reopen the claim for service connection for bladder cancer has been received. The RO denied service connection for bladder cancer in an August 2014 rating decision finding that the Veteran’s bladder cancer was not related to his service. The Veteran was notified of this decision and his appellate rights in August 2014 as to the August 2014 rating decision. The Veteran did not appeal or submit new and material evidence within the applicable time period and the August 2014 rating decision became final. In August 2014, prior to the rating decision, the record consisted of service treatment records (STRs), VA treatment records, VA examination report, and statements from the Veteran. The evidence failed to show that the Veteran’s bladder cancer was incurred in or attributable to service. Evidence associated since the August 2014 rating decision includes additional treatment records, VA examinations and private opinions, as well as lay statements regarding the Veteran’s in-service exposure and current symptomology. The additional treatment records, examinations and opinions, and Veteran’s lay statements are new, not cumulative, indicate a current disability, and potential in-service exposure and a relationship to service. As such, new and material evidence sufficient to reopen the claim for service connection for bladder cancer has been received. The evidence provided addresses the previously unestablished facts of a current disability, in-service exposures, and potential relationship to service. It is not redundant. Therefore, reopening of the claim for service connection is warranted. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a Veteran must 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” - the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 Fed. Cir. (2004). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309. As to herbicide exposure, Veterans who, during active 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 to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. During the course of the Veteran’s appeal, the Blue Water Navy Vietnam Veterans Act of 2019, set forth at 38 U.S.C. § 1116A(d) (2020), clarifies that VA shall treat “a location as being offshore of Vietnam if the location is not more than 12 nautical miles seaward” of that nation. In other words, Veterans who had blue water service within that zone of 12 nautical miles are now entitled to the presumption that they had been exposed to an herbicide agent. The Veteran served aboard the USS Reasoner within the zone of 12 nautical miles, as developed by the RO, and therefore, exposure to herbicides is presumed. If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and early-onset peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(e). The enumerated diseases are AL amyloidosis; chloracne or other acneform diseases; diabetes mellitus, type 2, Hodgkin’s disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin’s lymphoma, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma), Parkinson’s disease, and ischemic heart disease. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6)(iii), 3.309(e), 3.313, 3.318. Further, the Board notes that during the course of the Veteran’s appeal, The National Defense Authorization Act for Fiscal Year 2021 added three disorders to the list of diseases presumptively associated with exposure to herbicide agents, and 38 U.S.C. § 1116(a)(2) was amended to include parkinsonism, bladder cancer, and hypothyroidism. 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 -7641 (2003). Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). Entitlement to service connection for bladder cancer, to include as due to herbicide exposure The Veteran contends that service connection is warranted for bladder cancer, to include as due to herbicide exposure. In addition, the Veteran contends that his bladder cancer is due to in-service exposure to environmental exposures and chemicals including diesel fuel and fumes, emissions, hydraulic fluids and other chemicals. The Veteran contends that aboard the USS Reasoner he was exposed to herbicides while completing his duties as a marine mechanic, including duties removing underwater mines in the Haiphong Harbor in Vietnam. The question for the Board is whether the Veteran has a current diagnosis of bladder cancer that began during active service or is at least as likely as not caused by an in-service injury or disease, including exposure to herbicides. VA and private treatment records have been associated with the claims file noting a current diagnosis of and ongoing treatment for bladder cancer. The Veteran served aboard the USS Reasoner from October 1971 to December 1974 and based on a review of applicable deck logs, exposure to herbicides has been conceded based on service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019. The Board notes that there is conflicting evidence of record, to include a December 2019 private opinion and a March 2020 VA examination report, regarding whether the Veteran’s current bladder cancer is related to service in the Republic of Vietnam and his exposure to herbicides. However, resolving reasonable doubt in the Veteran’s favor, the Board concludes that the Veteran’s bladder cancer is presumed to be due to his in-service exposure to herbicides. In a December 2019 private opinion, the Veteran’s treating physician noted that he was diagnosed with bladder cancer in July 2015 and that bladder cancer has been shown to be linked to the exposure of agent orange. In a June 2020 VA opinion, the VA examiner found that it is less likely than not that the Veteran’s bladder cancer was incurred in or caused by the claimed in-service injury, noting that the federal government does not list bladder cancer as one of the medically related conditions caused by exposure to agent orange. The examiner noted that the Veteran has a history of smoking, which is a risk factor for bladder cancer. As noted above, the Veteran served in the Republic of Vietnam during the applicable time period. There is no affirmative evidence of non-exposure, and thus exposure to herbicides is presumed. During the course of the appeal, 38 U.S.C. § 1116(a)(2) was amended to include bladder cancer. As the Board has found that the Veteran has a current diagnosis of bladder cancer and exposure to herbicides, service connection is warranted on a presumptive basis. As such, service connection for bladder cancer is granted. 38 C.F.R. § 3.307. A. J. Spector Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.R. Kardian, 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.