Citation Nr: 21029615
Decision Date: 05/14/21	Archive Date: 05/14/21

DOCKET NO. 15-27 268A
DATE: May 14, 2021

ORDER

Entitlement to service connection for bladder cancer is granted. 

FINDINGS OF FACT

1. The Veteran had service in the Republic of Vietnam and therefore is presumed to have been exposed to herbicide agents during service.

2. The presumption that the Veteran's bladder cancer was incurred by in-service exposure to herbicide agents has not been rebutted.

CONCLUSION OF LAW

The criteria for entitlement to service connection for bladder cancer are met.  38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty in the United States Army from October 1970 to April 1978, including service in Vietnam.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  

The Veteran testified before the undersigned Veterans Law Judge in October 2018.  In August 2020, the Board remanded the claim for further development. 

1. Entitlement to service connection for bladder cancer is granted. 

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires 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.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

For purposes of establishing service connection for a disability resulting from exposure to an herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam 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 the contrary.  38 C.F.R. § 3.307(a)(6)(iii).  However, this presumption of service incurrence may be rebutted by competent medical evidence that a claimed condition is due to an intercurrent injury or disease.  See 38 C.F.R. § 3.307(d).

Following the Board's remand in this case, 38 U.S.C. § 1116(a)(2) was amended to add bladder cancer to the list of diseases presumptively associated with exposure to herbicide agents.  See William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, Pub. L. No. 116-283 § 9109, Stat. (2021).

Here, the Veteran is currently diagnosed with bladder cancer.  See December 2018 VA treatment record and October 2020 VA examination report.  Moreover, an injury in the form of exposure to herbicide agents during his service in Vietnam is presumed.  38 C.F.R. § 3.307(a)(6)(iii).  Thus, elements one and two of service connection are met.

Additionally, the Board finds that there is insufficient evidence to rebut the presumption that the Veteran's bladder cancer is related to his in-service exposure to herbicide agents, as there is no competent medical opinion of record clearly attributing the same to intercurrent causes. In this regard, while the October 2020 VA examiner pointed to a history of smoking for 45 years as an additional risk factor, this risk factor was not stated definitively enough as the source of the Veteran's cancer, and the Board finds that this statement, standing alone, does not affirmatively establish an intercurrent etiology and is insufficient to rebut the presumptive link between the Veteran's bladder cancer and his herbicide agent exposure.  Accordingly, the Board finds that presumptive service connection for bladder cancer is established.

 

 

S. BUSH

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S.S. Mahoney

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.