Citation Nr: 21026265 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 16-61 398 DATE: April 30, 2021 ORDER Entitlement to service connection for bladder cancer, to include as due to exposure to herbicide agents, is granted. REMANDED Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU), is remanded. FINDING OF FACT The Veteran served on active duty in the Republic of Vietnam, so he is presumed to have been exposed to herbicide agents during service. CONCLUSION OF LAW The criteria for entitlement to service connection for bladder cancer to include as due to exposure to herbicide agents are met. 38 U.S.C. §§ 1110, 1116(a)(2)(J), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1967 to June 1971, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In October 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge and a transcript hof the hearing has been associated with the Veteran’s electronic VA claims file. Following the October 2019 hearing, the record was held open to receive additional evidence which has since been associated with the file. 1. Service connection for bladder cancer to include as due to exposure to herbicide agents It is asserted by the Veteran that he has been diagnosed with bladder cancer that is either due to radiation treatment for his service-connected prostate cancer or alternatively, due to herbicide agents he is presumed to have been exposed to during his service in the Republic of Vietnam. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if preexisting such service, was aggravated thereby. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove 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, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Under applicable law, a Veteran who served on active duty in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed to an herbicide agent, absent affirmative evidence to the contrary. See 38 C.F.R. § 3.307 (a)(6)(iii). VA regulations further provide that service connection is warranted for certain specified diseases as presumptively due to herbicide exposure. 38 C.F.R. § 3.309 (e). During the pendency of this appeal, effective January 1, 2021, an act of Congress amended the law relating to presumptive service connection, adding three diseases that are now deemed to be presumptively associated with exposure to herbicide agents in Vietnam. National Defense Authorization Act for Fiscal Year 2021, Pub. L. No. 116-283, H.R. 6395, 116th Cong. (2021) (to be codified, in part, at 38 U.S.C. § 1116(a)(2)(J)). Bladder cancer is one of the added diseases. Service records confirm the Veteran served during the Vietnam era and that he served in the Republic of Vietnam. VA has conceded, the Veteran’s exposure to herbicides in Vietnam, granting service connection for prostate cancer because of presumed herbicide exposure. VA clinical records report a history of bladder cancer dating to December 2011 and a January 2018 private treatment record reports the Veteran had a malignant neoplasm of trigone of bladder that had been diagnosed in April 2015. Submitted in October 2019 was an internet article referencing the relationship between radiotherapy for prostate cancer and bladder cancer, and a medical opinion relating the Veteran’s bladder cancer to radiation treatment, and Agent Orange exposure. The law as amended regarding exposure to herbicides in Vietnam is dispositive, and as a result service connection for bladder cancer is warranted pursuant to the provisions of 38 U.S.C. § 1116 (a)(2)(J). The appeal for service connection for bladder cancer is granted. REASONS FOR REMAND 2. Entitlement to a TDIU is remanded. The Veteran is currently in receipt of a 100 percent rating for prostate cancer; a 30 percent rating for ischemic heart disease; a 20 percent rating for Type II diabetes mellitus; a 10 percent rating for tinnitus; and noncompensable ratings for bilateral hearing loss and erectile dysfunction. His combined disability evaluation is 100 percent effective from October 5, 2015. He is also in receipt of special monthly compensation for loss of use of a creative organ under 38 U.S.C. § 1114 subsection (k); 38 C.F.R. § 3.350 (a). As indicated above, the Board has granted the Veteran’s claim of service connection for bladder cancer pursuant to amended regulations for diseases subject to exposure to herbicide agents under 38 U.S.C. § 1116 (a)(2)(J). While the Veteran is currently in receipt of a 100 percent combined disability evaluation, it is important to point out that the award of a 100 percent rating does not necessarily render moot a claim of entitlement to a TDIU. Bradley v. Peake, 22 Vet. App. 280 (2008). A separate TDIU predicated on one disability (although perhaps not ratable at the schedular 100-percent level) when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation (SMC) under 38 U.S.C. § 1114 (s). Bradley, at 293-94. In light of the award of service connection for bladder cancer by the Board, it is noted that potentially, the Veteran may be entitled to TDIU and an even higher rate of special monthly compensation under 38 U.S.C. § 1114 (s). The matter is REMANDED for the following action: 1. Provide the Veteran with written notice regarding his potential entitlement to a TDIU rating and SMC under 38 U.S.C. § 1114 (s), based and Bradley cited above. 2. After undertaking any indicated development, adjudicate the claim for a TDIU rating, and SMC under 38 U.S.C. § 1114 (s). Specifically, for an award of SMC under that provision, the Veteran must have a "single service-connected disability" rated as total; this can be a schedular 100 percent or based on a TDIU rating, but the rating must be for a single disability (disabilities considered as one disability under 38 C.F.R. § 4.16 (a) are not considered a "single disability" for this purpose). Therefore, the AOJ must determine whether the Veteran has a single service-connected disability that renders the Veteran unemployable. In addition, there must be other service-connected disability or disabilities rated 60 percent or more, separate and distinct from the service-connected disability rated 100 percent and involving different anatomical segments or bodily systems. See 38 C.F.R. § 3.350(i). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William J. Jefferson III 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.