Citation Nr: 21042170 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 18-46 917 DATE: July 12, 2021 ORDER Service connection for bladder cancer is granted. REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. FINDING OF FACT The Veteran's bladder cancer is related to presumed in-service herbicide agent exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for bladder cancer have been met. 38 U.S.C. §§ 1110, 1113, 1116; 38 C.F.R. §§ 3.102, 3.303, 3.307. 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1967 to December 1968 and from June 1969 to August 1987. The Veteran died in January 2019. The Appellant is the surviving spouse. In April 2020, the Agency of Original Jurisdiction (AOJ) granted the surviving spouse's request to be substituted as the claimant in this appeal. 38C.F.R. §3.1010. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Board, denied the Veteran's claim of entitlement to service connection for amblyopia, chronic obstructive pulmonary disease (COPD), bladder cancer and entitlement to an effective date prior to June 20, 2013 for service connection for posttraumatic stress disorder (PTSD). The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Before the Court issued a decision, in March 2021, the parties filed a joint motion for partial remand (JMPR). The joint motion would vacate and remand the issues of entitlement to service connection for obstructive pulmonary disease (COPD) and bladder cancer to the Board for adjudication consistent with the remand instructions. The issues of entitlement to service connection for amblyopia and entitlement to an effective date prior to June 20, 2013 for service connection for posttraumatic stress disorder (PTSD) were dismissed by the Court. The Court granted the joint motion in March 2021. The case returned to the Board for further appellate review. 1. Entitlement to service connection for bladder cancer The Appellant contends that the Veteran's bladder cancer is related to the Veteran's period of service, to include his exposure to herbicides while serving in the Republic of Vietnam. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). A review of VA and private medical records show that the Veteran was diagnosed with bladder transitional cell carcinoma in 2010. With respect to in-service incurrence, the Board finds that the evidence demonstrates that the Veteran is presumed to have been exposed to herbicide agents (Agent Orange) while stationed in the Republic of Vietnam. The Veteran's DD Form 214 indicates that he served in Vietnam. Service personnel records show that the Veteran served in Vietnam from January 1970 to November 1970. A veteran who, during active military, navel, or air service, served in the Republic of Vietnam during the period 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 establish that the veteran was not exposed to any such agent during service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Thus, exposure to herbicide agents is presumed. The diseases for which service connection is warranted on a presumptive basis due to herbicide agent exposure are listed in 38 U.S.C. § 1116(a)(2) and 38 C.F.R. § 3.309(e). During the pendency of this appeal, Congress enacted the NDAA FY 21, Pub. L. No. 116-283, Stat. (2021), Title XCI, Section 9109, which in pertinent part, added bladder cancer to the list of diseases presumptively associated with exposure to herbicide agents. As the Veteran at the time of death had a current bladder cancer and it is presumed that he was exposed to herbicide agents in Vietnam, service connection for bladder cancer is granted on a presumptive basis. REASONS FOR REMAND 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. In the March 2020 JMPR, the parties agreed that the Board erred in denying the claim of service connection for COPD because the Board failed to adequately address the arguments raised by the Veteran. See Robinson, 21 Vet. App. 552. Specifically, in a March 2017 statement, the Veteran stated that when he has flashbacks or nightmares smoking helps to calm him down. The Veteran further stated that "I know that I smoke more because of my PTSD and it is also harder for me to quit because of my PTSD." The Veteran's counsel argued that this evidence supports that his COPD is secondary to his PTSD. See May 2017 correspondence. Service connection for disabilities caused by tobacco use is prohibited. 38 U.S.C. § 1103. VA's General Counsel held that neither 38 U.S.C. § 1103 (a) nor 38 C.F.R. § 3.300 bars a finding of secondary service connection for a disability related to a veteran's use of tobacco products after the veteran's service where that disability is proximately due to a service-connected disability that is not service-connected on the basis of being attributable to the veteran's use of tobacco products during service. See VAOGCPREC 6-2003. Moreover, the Veteran was service connected for PTSD. This is sufficient to trigger VA's duty to assist, and this matter must be remanded for a VA medical opinion in order to determine whether the Veteran is entitled to service connection on a secondary basis. McLendon v. Nicholson, 20 Vet. App. 79 (2006) The matters are REMANDED for the following action: 1. Obtain a VA medical opinion from a qualified examiner that addresses the Veteran's service connection claim for COPD. The claims file must be made available to the examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. A clear explanation for all opinions based on specific facts for the case as well as relevant medical principles is needed. The VA examiner must address the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's respiratory condition to include COPD was proximately due to or aggravated by a service-connected disability to include PTSD? Why or why not? Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. (b.) Was the Veteran's tobacco use at least as likely as not (50 percent or greater probability) caused or aggravated beyond its natural progression by the service-connected PTSD. (c.) Was the COPD at least as likely as not (50 percent or greater probability) cased or aggravated by the Veteran's use of tobacco products? (Continued on the next page) A complete rationale for all opinions is required. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Romero-Sanchez, 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.