Citation Nr: A25035308 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240705-453239 DATE: April 16, 2025 ORDER Service connection for bladder cancer is granted. FINDING OF FACT The Veteran's bladder cancer is a result of his in-service exposure to aqueous film forming foam (AFFF). CONCLUSION OF LAW The criteria for service connection for bladder cancer are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1987 to August 2003. This matter comes before the Board of Veterans' Appeals (Board) from a February 2024 rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office. In July 2024, the Veteran submitted a timely Decision Review Request: Board Appeal, VA Form 10182. The Veteran elected the Direct Review docket. Thus, the Board may only consider the evidence of record at the time of the Agency of Original Jurisdiction (AOJ) decision on appeal (i.e., February 7, 2024). 38 C.F.R. § 20.301. If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision. 38 C.F.R. § 20.300. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38?U.S.C. § 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38?C.F.R. §?3.303(d). With regard to the first two elements of service connection, the AOJ has made favorable findings that the Veteran has a diagnosis for bladder cancer and was exposed to AFFF while in service. See February 2024 Rating Decision; February 2025 TERA Memorandum. In this regard, the Board construes the February 2025 TERA memorandum as a favorable finding issued by VA; favorable findings are not evidence under the modernized appeal system (AMA) and are therefore not subject to the same restrictions regarding reviewable evidence windows. Absent any clear and unmistakable error in these findings, which the Board cannot find here, the Board is bound by them. See 38 C.F.R. § 3.104(c). The first and second elements of service connection are therefore satisfied. With regard to the nexus element, the Board finds the medical evidence of record establishes it is at least as likely as not that the Veteran's bladder cancer was caused by his in-service exposure to AFFF. In an April 2023 VA opinion, the examiner conceded that AFFF has been shown to cause bladder cancer. Although this opinion is inadequate on other grounds-namely the factual history cited in the opinion, which is explained in more detail in an October 2023 HLR Informal Conference Worksheet-the Board nonetheless finds the opinion probative insofar as the examiner provides a factual medical statement acknowledging that AFFF causes bladder cancer. See Mozingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("[E]ven if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight...."). This statement is unrelated to any of the factual deficiencies in the opinion and is not affected by the examiner's citation to those facts, including an unsubstantiated claim that the Veteran has a 20-year history of tobacco use. The Board also finds the opinion probative to the extent that it weighs two competing risk factors for the development of the Veteran's bladder cancer. In this regard, even assuming the Veteran had a 20-year history of smoking (and, as discussed below, the evidence indicates a significantly shorter history to the point of being immaterial as a risk factor), the opinion states that there is no way to determine which exposure-tobacco or AFFF-contributed more to the Veteran's bladder cancer. In other words, the examiner concluded that under the worst possible circumstance (i.e., 20 years of tobacco use), the Veteran's bladder cancer could still be attributed to two equally plausible causes, one related to service, and one not related to service. In such cases, the benefit of the doubt must be resolved in the Veteran's favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board therefore finds the examiner provided a rationale in support of the Veteran's claim even though it purports to do the opposite. The Veteran's claim is stronger than a mere benefit-of-the-doubt analysis, however. The record also contains an October 2023 VA opinion in which the examiner explained that the Veteran has no other known risk factors for bladder cancer other than his military service. In this regard, the Board acknowledges a single service treatment record from 1981 indicating the Veteran used tobacco products; however, the Veteran denied tobacco use by 1986, so any such usage was short-lived. The Board construes the October VA opinion as finding that this short-term usage of tobacco products, which lasted for five years at most, is not a material risk factor in the development of his bladder cancer over 30 years later. Additionally, although the examiner ultimately concluded the Veteran's bladder cancer was not the result of his military service, the examiner did not specifically address the issue of the Veteran's exposure to AFFF and instead discussed only his exposure to burn bits in Southwest Asia. As with the prior opinion, the Board finds the opinion probative insofar as it rules out other risk factors for the development of bladder cancer, such as a family history and the Veteran's distant and short-lived history of tobacco usage. See Mozingo, supra. Taken together, these opinions establish that the Veteran's exposure to AFFF is known to cause cancer, and that the Veteran has no other risk factors for developing bladder cancer. Because all other possible causes of the Veteran's bladder cancer have been ruled out, the Board finds the probative medical evidence of record demonstrates the Veteran's bladder cancer is a result of his exposure to AFFF. The third element of service connection is therefore satisfied. Accordingly, the Veteran's claim for service connection for bladder cancer is granted. See 38 C.F.R. § 3.303. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). MARTIN B. PETERS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Kuhns 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.