Citation Nr: 21025144 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 18-44 819 DATE: April 27, 2021 ORDER Entitlement to service connection for bladder cancer on a presumptive basis, due to herbicide agent exposure is granted. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam era. 2. The Veteran's diagnosed bladder cancer is presumed to be the result of in-service exposure to herbicide agents. CONCLUSION OF LAW The criteria for entitlement to service connection for bladder cancer have been met on a presumptive basis. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service in the United States Army from July 1959 to July 1981. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2018 rating decision. The March 2018 rating decision initially denied the Veteran’s service connection claim for bladder cancer. Within one year of that decision in June 2018, the Veteran submitted additional evidence in support of his claim and requested for his claim to be reconsidered. The AOJ subsequently issued a July 2018 rating decision the confirmed its previous denial of the issue. See 38 C.F.R. § 3.156(b). The Veteran then filed a timely notice of disagreement in July 2018. The Veteran testified before the undersigned Veterans Law Judge in January 2021. A transcript from that proceeding is associated with the claims file. 1. Entitlement to service connection for bladder cancer, to include as due to exposure to herbicide agents. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including malignant tumors, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of a 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 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 section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(a)(6) provides that 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. 38 C.F.R. § 3.307(a)(6)(i). Section 3.307(a)(6) also provides that a veteran who, during active military, naval, or air 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 during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). The diseases presumed to be associated with herbicide exposure include: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes 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), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). For the purposes of § 3.307, 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 Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is generally considered an herbicide agent and will be so considered in this decision. 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) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). The Veteran contends that he has bladder cancer that is related to his exposure to herbicide agents in the Republic of Vietnam while on active duty. The Veteran’s service treatment records (STRs) are silent for any complaints, diagnoses, or symptoms related to bladder cancer. The record shows that the Veteran first received a diagnosis of bladder cancer after service in 2017 when he was diagnosed with malignant tumor of the bladder. See January 2018 VA examination; May 2018 Disability Benefits Questionnaire. During the Veteran's January 2018 VA examination, he informed the examiner that the malignant tumor was removed in May 2017 and he had subsequent chemotherapy treatment. The Board notes that this reported medical history is consistent with the contemporaneous private treatment records. See May 2017 Private treatment record; October 2017 Private treatment record. The January 2018 VA examiner noted that the Veteran’s current diagnosis was bladder cancer in remission. The Veteran’s Record of Assignments in his military personnel records also shows that his period of active duty included service in the Republic of Vietnam in 1969. Thus, the Veteran's exposure to herbicide agents is presumed due to his service in Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(iii). At the time of the rating decisions in March 2018 and July 2018, the list of diseases associated with exposure to herbicide agents did not include bladder cancer. During the pendency of the appeal, the National Defense Authorization Act for Fiscal Year 2021 (NDAA) went into effect on January 1, 2021. Pub. L. No. 116-283. The NDAA amended 38 U.S.C. § 1116(a)(2) to include, in pertinent part, bladder cancer among the list of diseases eligible for presumptive service connection based on herbicide agent exposure for veterans who served in the Republic of Vietnam during the Vietnam Era. Although this law did not contain an effective date and has not yet been codified, in the absence of such guidance it must be presumed that the law became effective upon its January 1, 2021 enactment. See Gozlon-Peretz v. United States, 498 U.S. 395, 404 (1991) ("It is well established that, absent a clear direction by Congress to the contrary, a law takes effect on the date of its enactment"). The Board acknowledges that the January 2018 VA examiner initially provided a positive nexus opinion noting that the Veteran had no issues related to the claimed disorder prior to military service, and the onset of the disorder during service was documented in the STRs. The examiner added that there was evidence of a current, chronic, and continuous treatment and care. However, the AOJ obtained an addendum opinion from a different VA examiner in February 2018 who stated that there was no evidence in the STRs that the Veteran had bladder symptoms suggestive of bladder cancer. The examiner further noted that bladder cancer was not a presumptive condition for Agent Orange exposure, and there was no correlation between the Veteran's bladder cancer and his military service. Although the Board has considered the Febuary 2018 VA examiner’s negative opinion regarding the relationship between the Veteran’s bladder cancer and Agent Orange exposure, the Board does not find it probative as the examiner’s negative conclusion regarding this theory of entitlement appears to have been entirely based on the fact that bladder cancer was not a disease presumptively associated with herbicide agent exposure in February 2018. However, the availability of presumptive service connection for conditions based on exposure to herbicide agents does not preclude direct service connection for other conditions based on exposure to herbicide agents. See Stefl, 21 Vet. App. at 123; Combee, 34 F.3d at 1043-44. Moreover, and as noted above, bladder cancer has since been added to the list of diseases presumptively associated with herbicide agent exposure. As the Veteran has been diagnosed with a disease presumed service-connected in veterans exposed to herbicide agents, and he is presumed to have been exposed to herbicide agents based on his service in Vietnam, entitlement to service connection for bladder cancer is warranted on a presumptive basis. Thus, entitlement to service connection for bladder cancer is granted. As the Board is granting entitlement to service connection on this basis, it is unnecessary to address any other theory of entitlement that has been advanced. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.C. Spragins, 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.