Citation Nr: 22014019 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 19-26 090A DATE: March 11, 2022 ORDER 1. Entitlement to service connection for bladder cancer as due to exposure to herbicide agents is granted, subject to the regulations governing payment of monetary awards. 2. The appeal seeking service connection for left lower extremity peripheral neuropathy is dismissed. 3. The appeal seeking service connection for right lower extremity peripheral neuropathy is dismissed. REMANDED 4. Entitlement to a compensable rating for prostate cancer residuals is remanded. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam Era, and is presumed to have been exposed to herbicide agents in service. 2. The Veteran has a diagnosis of bladder cancer. 3. On the record during a March 2022 hearing before the undersigned, prior to the promulgation of a decision in the matters, the Veteran expressed his intent to withdraw his appeal seeking service connection for left and right lower extremity peripheral neuropathy; there is no question of fact or law in these matters remaining for the Board to consider. CONCLUSIONS OF LAW 1. Service connection for bladder cancer is warranted. 38 U.S.C. §§ 1110, 1116(a)(2), 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(e). 2. The criteria for withdrawal of a substantive appeal are met with respect to the claims of service connection for left and right lower extremity peripheral neuropathy; the Board has no further jurisdiction to consider an appeal in the matters. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from March 1969 to January 1971, with service in Vietnam. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which, in relevant part, continued a 0 percent rating for prostate cancer residuals and denied service connection for bladder cancer, left lower extremity peripheral neuropathy, and right lower extremity peripheral neuropathy. In March 2022, a virtual Board hearing was held before the undersigned. 1. Service connection for bladder cancer is granted. Legal Criteria, Factual Background, and Analysis The Veteran claims that his bladder cancer (diagnosed in 2017) is due to his exposure to herbicide agents while serving in Vietnam. See April 2018 statement. The Veteran's service personnel records show he served in Vietnam, and an August 2018 rating decision (pertaining to service connection for prostate cancer) conceded exposure to Agent Orange in service. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may 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. To substantiate a claim of service connection, there must be evidence of: (1) a present disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the claimed disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Prior to the enactment of the 2021 National Defense Authorization Act (NDAA), bladder cancer was not listed as one of the diseases that may be presumed to be service connected as due to exposure to herbicide agents if manifested in a Veteran who served in Vietnam during the Vietnam Era. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). However, the 2021 NDAA (enacted January 1, 2021 over presidential veto) added three disorders to the list of diseases presumptively associated with exposure to herbicide agents. Specifically, it amended 38 U.S.C. § 1116(a)(2) to include parkinsonism, bladder cancer, and hypothyroidism. The record shows that the Veteran served in Vietnam during the Vietnam Era and is presumed to have been exposed to herbicide agents in service. He has a diagnosis of bladder cancer. Under the recently enacted NDAA provisions he is now entitled to consideration of his claim under the presumptive provisions of 38 U.S.C. § 1116 (a)(2). All requirements for substantiating this claim of are met; service connection for bladder cancer is warranted. [The matters of the rating and effective date for the award of service connection for bladder cancer are downstream issues for the Agency of Original Jurisdiction (AOJ) to address in the first instance. The Board notes that the Veteran previously established service connection for prostate cancer, and the residuals of bladder cancer may be rated under the same schedular criteria.] 2., 3. Entitlement to service connection for left and right lower extremity peripheral neuropathy is dismissed. The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C. § 7104; 38 C.F.R. § 20.104. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or an authorized representative, must be in writing or on the record at a hearing, and is effective when received. 38 C.F.R. § 20.205. On the record during the March 2022 Board hearing, the Veteran stated that he was withdrawing the appeal seeking service connection for left and right lower extremity peripheral neuropathy. He acknowledged awareness that that the withdrawal terminates his appeal in these matters. There are no allegations of error of fact or law remaining for appellate consideration as to these issues. Accordingly, the Board no longer has jurisdiction to consider an appeal in the matters. REASONS FOR REMAND 4. Entitlement to a compensable rating for prostate cancer residuals Review of the record suggests that pertinent private treatment records are outstanding, and have not been sought. At an August 2019 VA prostate cancer examination, the Veteran reported that he continues with follow-up treatment every six months at Johns Hopkins Medicine. The most recent record from Johns Hopkins associated with the record is from July 2018. Furthermore, the record suggests that private oncology records from Dr. J.T. (including chemotherapy treatment) and urology records from Dr. R.H. are outstanding. See October 11, 2017 private treatment record. Such records are pertinent, and perhaps dispositive, in this claim for increase (and potentially pertinent to the assignment of the initial rating for his now service-connected bladder cancer). Accordingly, remand to seek complete treatment records from Johns Hopkins, Dr. J.T. (oncology), and Dr. R.H. (urology) is necessary. Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). The matters are REMANDED for the following action: 1. Secure for the record complete, updated and outstanding (i.e., any not already in the record) clinical records of all VA evaluations or treatment the Veteran has received for his prostate and bladder cancers. 2. Also ask the Veteran to identify all private providers of evaluations or treatment he has received for his prostate and bladder cancers (records of which are not already in the record), and to submit authorizations for VA to secure for the record complete clinical records from all private providers identified, including specifically from Johns Hopkins, Dr. J.T. (oncology), and Dr. R.H. (urology). If he does so, obtain those records. [continued on next page] 3. Thereafter, review the record, arrange for any further development suggested (by the results of the development sought above, such as obtaining further identified records, or arranging for an examination (or advisory medical opinion) to identify (if necessary) the symptoms and residuals attributable to his bladder versus prostate cancers), and readjudicate the claim for an increased rating for prostate cancer. S. CHARLES NEILL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dupont, 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.