Citation Nr: 18160480
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 14-28 183
DATE:	December 27, 2018
Entitlement to service connection for bladder cancer as due to herbicide exposure is granted.
1. The Veteran is presumed to have been exposed to herbicide agents while serving in Vietnam.
2. The Veteran’s bladder cancer is related to his exposure to herbicide agents.
The criteria for entitlement to service connection for bladder cancer have been met.  38 U.S.C. § 1110, 1116, 5103, 5103A (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017).
The Veteran served on active duty from November 1968 to October 1970.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision.
The Veteran was afforded a hearing before the undersigned Veterans Law Judge in February 2018.
1. Entitlement to service connection for bladder cancer
Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2017).
Establishing service connection generally requires competent evidence of (1) a current disability; (2) 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); see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).  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) (2017).
A Veteran who, during active military, naval, 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 absent affirmative evidence to the contrary.  38 U.S.C. § 1116 (2012); 38 C.F.R. § 3.307 (a)(6)(iii) (2017).  “Service in the Republic of Vietnam” includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.  38 C.F.R. § 3.307 (a)(6)(iii) (2017).
Diseases entitled to the presumption under 38 C.F.R. § 3.309 (e) include AL amyloidosis; chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin’s disease; ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina); all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin’s lymphoma; Parkinson’s disease; early onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 
In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature.  Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology.  Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).
Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features.  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).
Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms.  Charles v. Principi, 16 Vet. App. 370, 374 (2002).
Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  Id.
The Veteran asserts that his bladder cancer is due to his exposure to Agent Orange.
Bladder cancer is not among the diseases presumed to be due to herbicide exposure.  Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).
The Board concludes that the Veteran has a current diagnosis of bladder cancer that is related to his exposure to herbicides.  
A review of the record reveals that the Veteran was stationed in the Republic of Vietnam.  See DD-214.  Thus, exposure to herbicides is conceded.
September 2010 VA treatment records show the Veteran has a current diagnosis of bladder cancer, and the December 2018 VHA medical opinion states that the Veteran’s bladder cancer is at least as likely as not related to herbicide exposure.  The rationale was that although the Veteran had two risk factors for bladder cancer, the Veteran’s exposure to Agent Orange made him more likely to develop bladder cancer because of the cumulative risk of multiple exposures.
Accordingly, service connection for bladder cancer is warranted.

Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Alexia E. Palacios-Peters, Associate Counsel 

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