Citation Nr: 21040097 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-27 942 DATE: July 2, 2021 ORDER Service connection for bladder cancer is granted. Service connection for lung cancer is granted. FINDINGS OF FACT 1. The Veteran had active duty service at Nakhon Phanom Royal Thai Air Force Base in Thailand from May 1970 to May 1971. 2. The Veteran's bladder cancer and lung cancer are presumptively related to his in-service herbicide agent exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for bladder cancer have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116(a)(2), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for lung cancer have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116(a)(2), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from October 1959 to October 1979. Of note, this appeal was last before the Board in May 2019 when it was denied. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In a February 2020 Joint Motion for Partial Remand (JMPR), the Court held that the Board did not offer adequate reasons and bases in support of its determination. Service Connection 1. Entitlement to service connection for bladder cancer 2. Entitlement to service connection for lung cancer The Veteran asserts that his bladder cancer and his lung cancer are due to his exposure to herbicide agents at Nakhon Phanom Royal Air Force Base (RTAFB) in Thailand. In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to herbicide agents during that service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. If a veteran was exposed to an herbicide agent during active military, naval, or air service, presumptive service connection for numerous diseases, to include bladder cancer and lung cancer, will be established even though there is no record of such disease during service, provided that the disease is are manifest to a degree of 10 percent or more at any time after service. On January 1, 2021, the National Defense Authorization Act for Fiscal Year 2021 has added three disorders to the list of diseases presumptively associated with exposure to herbicide agents. Specifically, it amended 38 U.S.C. § 1116 (a)(2), to include parkinsonism, bladder cancer and hypothyroidism. 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518 (1996). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992) As an initial matter, the Veteran has been diagnosed with bladder cancer and lung cancer. Specifically, multiple medical treatment notes, most recently in April 2012, diagnosed a history of bladder cancer, status-post bladder removal. Similarly, multiple medical treatment notes, most recently in August 2013, diagnosed a history of lung cancer, status-post partial right pneumonectomy. Thus, current disabilities have been shown and the first element of service connection for bladder cancer and lung cancer have been met. A review of the Veteran's military personnel records shows that that the Veteran served at the Nakhon Phanom Royal Thai Air Force Base in Thailand from May 1970 to May 1971 and that his military occupational specialty (MOS) was as an aerospace ground equipment technician. Since this appeal was before the Board and the Court, the Veteran has submitted a detailed statement describing his duties such as bringing portable flood lights and generators to the perimeter of Nakhon Phanom RTAFB on a daily basis. Based on a review of the Veteran's service personnel records and the lay evidence of record, including the corroborating lay statements, and resolving all reasonable doubt in his favor, the Board finds that it is at least as likely as not that the Veteran was exposed to herbicides during service. Thus, service connection for bladder cancer and lung cancer is warranted because both conditions are compensably disabling. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Nelson 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.