190913-30405
190913-30405
| Board of Vet. App. | Aug 31, 2021Background
- Veteran served on active duty in the U.S. Army from Aug 1966 to Aug 1969, including service in the Republic of Vietnam; exposure to herbicide agents (Agent Orange) is conceded.
- Veteran diagnosed with bladder cancer in 2015 and has ongoing treatment; also has chronic kidney disease (stage 3) and other service-connected conditions (type II diabetes, prostate cancer, PTSD).
- Claim was appealed from June/July 2019 RO rating decisions under the AMA; Veteran withdrew hearing request and elected Direct Review (closed-record review dates: 6/11/2019 for bladder cancer; 7/16/2019 for CKD and hypertension).
- NDAA for FY2021 amended 38 U.S.C. § 1116(a)(2) to add bladder cancer to the list of diseases presumptively associated with herbicide exposure.
- The Board granted presumptive service connection for bladder cancer based on Vietnam herbicide exposure and the new statutory addition.
- The Board granted service connection for chronic kidney disease as secondary to bladder cancer (based on a June 2019 VA opinion attributing CKD to chemotherapy) and remanded the hypertension claim for an inadequate VA opinion addressing herbicide exposure and potential secondary/aggravation relationships.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for bladder cancer (presumptive) | Bladder cancer caused by in-service herbicide exposure in Vietnam | VA conceded herbicide exposure but had to apply statutory presumptive list | Granted: statutory presumption under NDAA covers bladder cancer; nexus satisfied |
| Service connection for chronic kidney disease (secondary) | CKD caused by chemotherapy/treatment for service-connected bladder cancer | VA (through exam) found chemo likely caused CKD; no contrary evidence | Granted: June 2019 VA exam (in-person, file review) found "more likely than not" chemo caused CKD; probative and persuasive |
| Service connection for hypertension (direct/secondary/aggravation) | Hypertension related to herbicide exposure or secondary/ aggravated by service‑connected conditions/treatment | June 2019 exam addressed diabetes/PTSD but did not address herbicide exposure or relation to bladder cancer/CKD/chemotherapy | Remanded: VA duty to assist error—exam inadequate; obtain addendum addressing herbicide exposure and secondary/aggravation theories |
Key Cases Cited
- Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004) (elements required for direct service connection)
- Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (service connection may be established for conditions related to herbicide exposure even if not presumptive)
- Wallin v. West, 11 Vet. App. 509 (1998) (elements for secondary service connection)
- Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must ensure examinations are adequate; inadequate exams can constitute duty-to-assist error)