Citation Nr: 22010581 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 19-25 068 DATE: February 24, 2022 ORDER New and material evidence having been submitted, the Veteran's claim for entitlement to service connection for bladder cancer, to include as due to herbicide agent exposure, is considered reopened. Entitlement to service connection for bladder cancer, to include as due to herbicide agent exposure, is granted. FINDING OF FACT 1. Evidence received since the October 2014 rating decision denying service connection for bladder cancer is neither cumulative nor redundant of the evidence of record at the time of the October 2014 final decision and raises a reasonable possibility of substantiating the claim as it relates to an unestablished fact. 2. The Veteran's bladder cancer is related to his exposure to herbicide agents. CONCLUSION OF LAW 1. The criteria to permit reopening the Veteran's claim for entitlement to service connection for bladder cancer based on new and material evidence have been met. 38 U.S.C. §§ 5108; 38 C.F.R. § 3.156.tn5 2. The criteria for entitlement to service connection for bladder cancer, to include as due to herbicide agent exposure, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Air Force from April 1968 to April 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii (Agency of Original Jurisdiction (AOJ)). The Veteran testified at a virtual hearing before the undersigned in April 2021. A transcript of the proceeding is pending association with the file but has been considered. New and Material Evidence Generally, an unappealed AOJ denial is final under 38 U.S.C. § 7105(c). A claim for service connection may be reopened, however, if new and material evidence is received. 38 U.S.C. § 5108; Manio v. Derwinski, 1 Vet. App. 140 (1991). Per 38 C.F.R. § 3.156, "new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim." 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. §§ 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). 1. Whether new and material evidence has been received to permit reopening the Veteran's claim for entitlement to service connection for bladder cancer The Veteran filed a claim for service connection for bladder cancer in June 2014. At that time, the evidence of record available prior to adjudication included service treatment records, military personnel records, a urinary tract Disability Benefits Questionnaire (DBQ) dated June 2014, correspondence from the Veteran dated June 2014, and VA treatment records dated April 2003 through March 2010. The Veteran provided no further evidence pertaining to his claim. The AOJ denied the Veteran's claim for service connection for bladder cancer in an October 2014 rating decision, indicating that his bladder cancer neither occurred in nor was caused by his active duty service, to include exposure to herbicide agents. The Veteran was provided notice of this decision and his appellate rights by letter dated October 9, 2014. However, the Veteran did not submit a notice of disagreement or new and material evidence as it pertained to his bladder cancer within one year of notice of the decision. This decision, therefore, is final. 38 U.S.C. §§ 7104(b); 7252 (2012). Evidence submitted since the October 2014 final AOJ rating decision includes private treatment records, VA treatment records, a letter from the Veteran's physician, and hearing testimony. The Board finds that the information provided and evidence associated with the Veteran's claims file is sufficient to permit reopening his claim. Specifically, the new evidence of record includes a letter from the Veteran's physician opining that his bladder cancer is caused by his exposure to Agent Orange, which raises the possibility of substantiating his claim as it provides a nexus. Therefore, the Board finds that the evidence of record submitted since October 2014 pertaining to the Veteran's bladder cancer is new and material, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. As such, the Board will permit reopening the claim. Service Connection Service connection may be granted for a current disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §§ 3.303(d). The requirement that a current disability exist is satisfied if the claimant had a disability at the time the claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) 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). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, and has one of the diseases enumerated under 38 C.F.R. § 3.309(e), that disease shall be service-connected (provided the requirements of 38 C.F.R. § 3.307(a)(6) have been met) even though there is no record of such disease during service. 38 U.S.C. §§ 1113, 1116; 38 C.F.R. §§ 3.307, 3.309. The diseases listed under 38 C.F.R. § 3.309(e) shall have become manifest to a degree of ten percent or more at any time after service, with some exceptions. 38 U.S.C. §§ 1116; 38 C.F.R. § 3.307(a)(6)(ii). Veterans who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 are 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 that service. 38 U.S.C. §§ 1116; 38 C.F.R. §§ 3.307(a)(6)(iii). Lay evidence is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature." Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). A claimant bears the evidentiary burden to establish entitlement to the benefit sought. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The benefit of the doubt applies when the evidence for and against is in "approximate balance" or "nearly equal," but does not apply when the evidence persuasively favors one side or the other. Lynch v. McDonough, _ F4th_, 2021 U.S. App. LEXIS 37307, 2021 WL 5983923 (Fed. Cir. Dec. 17, 2021) (en banc). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. §§ 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). 2. Entitlement to service connection for bladder cancer, to include as due to herbicide agent exposure The Veteran contends that his bladder cancer is etiologically related to his active duty service. Specifically, he suggests that he was exposed to herbicide agents during his service in Vietnam and that this exposure resulted in his bladder cancer. The record clearly indicates that the Veteran has a diagnosis of bladder cancer. In June 2014, a DBQ provided by a Dr. Kim was associated with the file; it documents a diagnosis of bladder cancer. Progress notes from August 2017 also provide that a cystoscopy found a large bladder tumor in January 2014. CAPRI VA treatment records include references to the Veteran's history of bladder cancer. Most notably, Dr. Kim provided a letter dated October 2018 that states, "[the Veteran] was found to have high grade invasive transitional cell cancer of the bladder on [March 6, 2014]." The Board therefore accepts that the Veteran has a current diagnosis of bladder cancer for the period on appeal. The Veteran has theorized that his bladder cancer is due to his exposure to herbicide agents during his service in Vietnam. His DD-214 documents service in Vietnam that is further corroborated by his military personnel records. As mentioned above, pursuant to 38 U.S.C. §§ 1116; 38 C.F.R. §§ 3.307(a)(6)(iii), veterans who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 are 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 that service. Based on the Veteran's military personnel records, it appears that the Veteran was present in Vietnam in 1969. The Board therefore concedes exposure to herbicide agents based on this service. The Board further acknowledges that pursuant to 38 U.S.C. §§ 1116, bladder cancer is a condition entitled to service connection on a presumptive basis. However, for effective date purposes, the Board finds that the Veteran was entitled to service connection prior to the date bladder cancer was added to the list of conditions entitled to presumptive service connection. Indeed, the Board is persuaded by the opinion provided by Dr. Kim in his letter dated October 2018. He stated, "[The Veteran] served in the Vietnam War and was exposed to Agent Orange. A number of articles have come out that found that men who were exposed to Agent Orange have double the incidence of aggressive bladder cancer. It is more likely than...not that [the Veteran's] exposure to Agent Orange has resulted in bladder cancer." Not only did Dr. Kim provide an adequate positive nexus opinion, but he also supported it with medical evidence indicating that men who were exposed to Agent Orange have double the incidence of aggressive bladder cancer. The AOJ did not obtain a VA examination for the Veteran's bladder cancer and there are no other opinions of record to consider. For these reasons, the Board finds that the evidence of record weighs in favor of the Veteran and his claim for entitlement to service connection for bladder cancer is granted. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Victoria A. Banis, 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.