Citation Nr: 21040302 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 16-57 471 DATE: July 3, 2021 ORDER Entitlement to service connection for bladder cancer, to include as a result of herbicide exposure, for substitution purposes, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) as due to a service-connected disability prior to March 26, 2016, for substitution purposes, is remanded. FINDING OF FACT Bladder cancer is due to the Veteran's presumed exposure to herbicide agents in the Republic of Vietnam. CONCLUSION OF LAW The criteria for entitlement to service connection for bladder cancer have been met. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1967 to June 1970 in the United States Army, with service in the Republic of Vietnam. He was awarded the Purple Heart medal. The Veteran died in October 2019. The appellant claims as the surviving spouse of the Veteran and has been substituted as the claimant in this matter to complete the processing of the deceased Veteran's claims. See July 2020 letter to the appellant from the RO. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, these issues were remanded to the Agency of Original Jurisdiction (AOJ). There has been substantial compliance with the remand instructions and this matter is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2012); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). VA has also established a presumption of service connection for certain diseases found to be associated with herbicide exposure. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). 38 U.S.C. § 1116(a)(2) was recently amended to include bladder cancer in the list of diseases associated with exposure to certain herbicide agents pursuant to the National Defense Authorization Act for Fiscal Year 2021, effective January 1, 2021. See Pub.L. 116-283. Absent affirmative evidence to the contrary, such diseases will be service connected even if there is no evidence of the disease during service, provided that herbicide exposure is established. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(d), 3.309(e). 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 (the Vietnam Era). 38 C.F.R. § 3.307(a)(6). A veteran who, during active military service, served in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed to such herbicide agents. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6). Because the Veteran served in the Republic of Vietnam during the Vietnam Era, as shown by his service personnel records, he is presumed to have been exposed to an herbicide agent. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) Entitlement to service connection for bladder cancer, to include as a result of herbicide exposure, for substitution purposes The Veteran contended that his bladder cancer was due to his exposure to herbicides in Vietnam. See December 2015 correspondence. As his service separation document, DD Form 214, shows that he served in the Republic of Vietnam from October 1967 to October 1968, he is presumed to have been exposed to herbicide agents. 38 U.S.C. § 1116 ;38 C.F.R. § 3.307. Post-service VA treatment records also show that the Veteran's bladder cancer was diagnosed in 2014. As discussed above, the National Defense Authorization Act for Fiscal Year 2021, P.L. 116-283, § 6501, 134 Stat. 3388 (Jan. 1, 2021) recently added bladder cancer to the list of conditions presumptively associated with exposure to herbicide agents. 38 U.S.C. § 1116 (a)(2)(J). As the Veteran had a current diagnosis of bladder cancer and in-service exposure to herbicide agents has been conceded, the claim for entitlement to service connection for bladder cancer is granted. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability (TDIU) as due to a service-connected disability prior to March 26, 2016, for substitution purposes The Veteran sought entitlement to a TDIU based on his service-connected disabilities prior to March 26, 2016. The TDIU effective date claim is inextricably intertwined with the Board's grant of service connection for bladder cancer in this decision and the pending assignment of the corresponding rating by the AOJ. As such, consideration of the TDIU must be deferred pending implementation of the award granted herein and the remand development requested below. This matter is REMANDED for the following action: Implement the award of service connection for bladder cancer, then readjudicate the appellant's claim for entitlement to a TDIU rating prior to March 26, 2016. If any of the benefits sought are not granted in full, the AOJ should furnish the appellant and her representative with an SSOC and afford an opportunity to respond. The claims file should then be returned to the Board for further appellate review. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fitzgerald, 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.