Citation Nr: 21032668 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 19-04 954 DATE: May 27, 2021 ORDER Entitlement to service connection for bladder cancer, tumor in bladder, as due to herbicide agent exposure, is granted. REMANDED Entitlement to service connection for a skin condition, to include eczema, to include as due to herbicide agent exposure, is remanded. FINDING OF FACT The Veteran's bladder cancer is presumptively related to his in-service herbicide agent exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for bladder cancer are met. 38 U.S.C. §§ 1110, 1112, 1113, 1116(a)(2), 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(e). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Marine Corps from August 1964 to August 1968. The matters come before the Board of Veterans' Appeals (Board) on appeal of May 2017 and January 2018 rating decisions. The matters were was most recently before the Board in September 2019, when the Board remanded the issue of entitlement to service connection for bladder cancer, tumor in bladder, claimed as due to toxic herbicide and diesel fuel exposure, and issued a decision denying service connection for a skin condition, to include eczema. The Veteran appealed the decision to the Court of Appeals for Veterans Claims (the Court). In a February 2021 Order, the Court granted the VA General Counsel's and Veteran's Joint Motion for Partial Remand (JMPR). The Board's September 2019 decision was subsequently vacated, in part, and the Veteran's claim of service connection for a skin condition, to include eczema, was remanded to the Board for readjudication in compliance with the JMPR. Specifically, the JMPR called for the claim to be remanded because the Board failed in its duty to assist the Veteran by relying on an inadequate examination and also because the Board erred by not providing an adequate statement of reasons or bases for its decision. Service Connection Entitlement to service connection for bladder cancer, tumor in bladder, as due to toxic herbicide exposure The Veteran contends that he developed bladder cancer as a result of his active duty service. The Veteran had active service in the Republic of Vietnam, and exposure to herbicide agents is conceded. 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 pre-existing 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). Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents even though there is no record of such disease during service, if they manifest to a compensable degree after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. Of note, the disease of bladder cancer was recently added to the list of diseases subject to presumptive service connection, via the National Defense Authorization Act for Fiscal Year 2021, effective January 1, 2021. See Pub.L. 116-283; 38 U.S.C. § 1116(a)(2) (January 1, 2021). Here, the evidence shows a current disability of bladder cancer to a compensable degree during the period under consideration. See September 2016 and December 2017 VA treatment records; see also December 2019 Urinary Tract (Including Bladder and Urethra) Conditions Disability Benefits Questionnaire. VA has also already established that the Veteran served in Vietnam; therefore, he is presumed to have been exposed to herbicide agents. As noted above, the disease of cancer of the bladder was recently added to the list of diseases subject to presumptive service connection under 38 U.S.C. § 1116(a)(2) (January 1, 2021). As such, the Board finds that service connection for bladder cancer may be presumed. The benefit sought on appeal is granted. REASONS FOR REMAND Entitlement to service connection for eczema, to include as due to herbicide exposure is remanded. The Veteran was afforded a VA Skin Diseases examination in December 2017. However, the medical opinion obtained as a result of this examination was inadequate, as it was based upon inaccurate and incomplete facts and was not supported by an adequate rationale. On remand, the Veteran should be afforded a new VA examination and an addendum opinion should be requested. The Board adds that, since the July 2020 Supplemental Statement of the Case (SSOC), the Veteran submitted additional evidence in support of his claim and requested that the claim be returned to the AOJ for review. See March 2021 correspondence. Thus, remand is also required so that this new evidence can be reviewed in the first instance by the AOJ. The matter is REMANDED for the following action: 1. Obtain and associate with the file any outstanding VA treatment records. 2. After obtaining all of the outstanding records, schedule the Veteran for an examination to determine the nature and etiology of any skin condition, to include eczema. The entire record must be made available to and reviewed by the examiner. The examiner should take a history from the Veteran as to the progression of his claimed disability. In formulating any opinion, the examiner must consider the full record, including the Veteran's lay statements concerning the onset and continuity of symptomatology, and any pertinent post-service treatment records. The examiner should give an opinion as to the following: Whether it is at least as likely as not (50 percent or greater probability) that the Veteran has any skin condition, to include eczema and/or a perineal rash with secondary infection, that had its onset in or is otherwise related to the Veteran's period of service, to include as due to herbicide agent exposure. The examiner should consider the notation of rash on the Veteran's August 1968 examination upon separation from service. A complete rationale should be given for all opinions and conclusions expressed, and a discussion of the facts and medical principles involved must be provided. 3. Thereafter, readjudicate the issue on appeal. If the benefit sought is not granted, issue the Veteran and his representative a supplemental statement of the case (SSOC). V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Fulmer, Associate 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.