Citation Nr: 22002002 Decision Date: 01/13/22 Archive Date: 01/13/22 DOCKET NO. 18-37 657 DATE: January 13, 2022 ORDER Service connection for type II diabetes mellitus is granted. Service connection for bladder cancer is granted. FINDINGS OF FACT 1. The Veteran served in the territorial waters of the Republic of Vietnam during the Vietnam Era and was therefore presumptively exposed to herbicide agents. 2. The Veteran has a current diagnosis of type II diabetes mellitus. 3. The Veteran has a current diagnosis of bladder cancer. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor, the criteria for a grant of service connection for type II diabetes mellitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116A, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2021). 2. With resolution of reasonable doubt in the Veteran's favor, the criteria for a grant of service connection for bladder cancer have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116A, 1131, 1137, 5107 (2021); 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 in the Navy from February 1961 to February 1965. The Veteran testified before the undersigned Veterans Law Judge during a January 2022 hearing. This matter is on appeal from a May 2016 rating decision. VA initially denied the Veteran service connection for type II diabetes mellitus in a July 2006 rating decision. The Veteran did not submit a Notice of Disagreement or submit new and material evidence within one year of its promulgation. See Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011); see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Therefore, the July 2006 rating decision is final. 38 U.S.C. § 7105(b)(1); 38 C.F.R. §§ 3.104, 19.52 (2021). VA reopened the claim for service connection for type II diabetes mellitus and denied it again in an April 2009 rating decision. The Veteran did not submit a Notice of Disagreement or submit new and material evidence within one year of its promulgation. Therefore, the April 2009 rating decision is also final. VA denied the Veteran service connection for bladder cancer and denied his request to reopen his claim for service connection for type II diabetes mellitus in a December 2014 rating decision. The Veteran did not submit a Notice of Disagreement or submit new and material evidence within one year of its promulgation. (He submitted a Notice of Disagreement in February 2016 but, as VA informed him in a letter later that month, this was untimely.) Therefore, the December 2014 rating decision is also final. Reopening a finally adjudicated claim in the legacy appeal system generally requires new and material evidence. 38 C.F.R. § 3.156(a) (2021). However, a statute enacted after the December 2014 rating decision provides that VA shall treat a grant of service connection based on service offshore of the Republic of Vietnam during the Vietnam Era, when the claim had previously been denied, as having been filed on the date of the prior claim. 38 U.S.C. § 1116A(c)(2)(A) (2021). Therefore, the Board finds that new and material evidence is unnecessary. The Board has therefore recharacterized the issues as for service connection. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Type II Diabetes Mellitus The Veteran contends that he has type II diabetes mellitus as a result of exposure to herbicides in Vietnam. VA regulations provide that a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed to herbicides unless there is affirmative evidence to establish that the veteran was not exposed. 38 C.F.R. § 3.307(a)(6)(iii). This presumption extends to veterans who served offshore of the Republic of Vietnam during that period. 38 U.S.C. § 1116A(a). VA shall treat a location as being offshore of Vietnam if the location is not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia. 38 U.S.C. § 1116A(d). The Veteran's service personnel records indicate that he served on the USS Constellation (CVA-64) from May 1962 to February 1965. A May 2006 search of Naval records indicated that the USS Constellation was "in the official waters of the Republic of Vietnam" on multiple occasions during that period. This is not conclusive proof that the Veteran served offshore of the Republic of Vietnam as defined above during the Vietnam Era but, resolving reasonable doubt in the Veteran's favor, the Board finds that it is reasonable to conclude that a ship operating in the "official waters of the Republic of Vietnam" did so within 12 nautical miles of the Republic of Vietnam. The Board therefore presumes that the Veteran was exposed to herbicides. 38 C.F.R. § 3.307. Certain diseases are deemed associated with herbicide exposure under current law. The list of those diseases includes type II diabetes mellitus. 38 C.F.R. § 3.309(e). The Veteran has submitted a November 2016 statement by his private treating physician, who reported that the Veteran developed diabetes mellitus in "about 1974." The Board therefore finds that it is at least as likely as not that the Veteran has had type II diabetes mellitus, which is presumptively service-connected. Accordingly, service connection for type II diabetes mellitus is granted on this basis. 2. Bladder Cancer The Veteran also contends that he has bladder cancer as a result of exposure to herbicides in Vietnam. For the reasons given above, the Board presumes that the Veteran was exposed to herbicides. The list of diseases deemed associated with herbicide exposure under current law includes bladder cancer. 38 U.S.C. § 1116(2)(J). The Veteran has submitted a November 2016 statement by his private treating physician, who reported that the Veteran had been diagnosed with bladder cancer three to four years prior. The Board therefore finds that it is at least as likely as not that the Veteran has had bladder cancer, which is presumptively service-connected. Accordingly, service connection for bladder cancer is granted on this basis. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ryan Frank, 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.