Citation Nr: 21041183 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 19-28 277 DATE: July 8, 2021 ORDER Entitlement to service connection for prostate cancer is granted. Entitlement to service connection for bladder cancer is granted. REMANDED Entitlement to service connection for a respiratory disability is remanded. FINDING OF FACT The Veteran has been diagnosed with prostate cancer and bladder cancer, which are presumptively linked to herbicides. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for prostate cancer, as due to herbicide exposure, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for establishing service connection for bladder cancer, as due to herbicide exposure, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1959 until October 1963. These matters come to the Board of Veterans (Board) on appeal from an April 2018 Department of Veterans Affairs (VA) regional office (RO) rating decision. The Veteran participated in a hearing before the undersigned in March 2021; a transcript is associated with the claims file. Preliminarily, the Board notes that when a Veteran makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the Board has recharacterized the Veteran's claim for asbestosis into a claim for any respiratory disability. See id. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A veteran who, during active military service, served in Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to herbicide agents. 38 C.F.R. §§ 3.307, 3.309. For the purposes of this section, "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 above-stated period. 38 C.F.R. § 3.307(a)(6). If a Veteran is exposed to an herbicide agent during active service and one of the listed diseases manifests any time after service, the disability is presumed related to the exposure. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). If herbicide agent exposure is not presumed, the Veteran may attempt to show herbicide agent exposure on a facts-found basis. 38 U.S.C. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Exposure then becomes a matter of fact to be determined by the Board. 1. Entitlement to service connection for prostate cancer 2. Entitlement to service connection for bladder cancer The Veteran contends that his prostate and bladder cancer was caused by his exposure to herbicides while serving in Vietnam. For the reasons discussed below, the Board finds that the Veteran is entitled to service connection for these disabilities on a presumptive basis. Post-service treatment records indicate that the Veteran has been diagnosed with and treated for bladder cancer and prostate cancer. May 2004 post-service treatment records also indicate that the Veteran has had a cystoproctostomy. The Veteran is presumed to have been exposed to herbicides while in service as he has verified service on the USS Belle Grove, which operated in the brown waters of Vietnam. The first and second Shedden elements are therefore satisfied. By statute, both bladder and prostate cancer are presumptively linked to Agent Orange exposure. See 38 C.F.R. § 3.309(e); 38 U.S.C. § 1116(a)(2). As the Veteran is presumed to have been exposed to herbicides, and as he has been diagnosed with diseases presumptively linked to herbicide exposure, the Veteran is entitled to service connection for these disabilities. In sum, as the Veteran is presumed to have been exposed to herbicides, the presumption of service connection for bladder cancer and prostate cancer attaches. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Therefore, the appeal is granted as to both claims. The nature and extent of these disabilities are not before the Board at this time. REASONS FOR REMAND 1. Entitlement to service connection for a respiratory disability A February 2017 VA examiner stated that the Veteran did not have asbestosis, but rather, COPD that was less likely than not related to service. The examiner reasoned that the Veteran's COPD was a "result of smoking cigarettes for many years." As noted above, the Veteran is presumed to be exposed to herbicides. While COPD is not presumptively related to service pursuant to 38 C.F.R. § 3.309(e), this does not preclude a Veteran from proving entitlement to service connection directly. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). The February 2017 VA examiner did not take into consideration the Veteran's exposure to herbicides. Remand is therefore necessary for an addendum opinion. The matters are REMANDED for the following action: Obtain an addendum VA medical opinion to determine the nature and etiology of the Veteran's respiratory disability, however diagnosed. If another VA examination (or telehealth interview, review of the record, or similar action, if in-person examination is not feasible) is deemed necessary, then one must be obtained. The examiner must opine whether it is at least as likely as not that the Veteran's respiratory disability, however diagnosed, is directly related to service, to include his presumed exposure to herbicides. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. If any requested opinion cannot be provided without resorting to mere speculation, the examiner should explain why that is so. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Finelli, 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.