210218-141688
210218-141688
| Board of Vet. App. | May 28, 2021Background
- Veteran served on active duty in the U.S. Navy from June 1962 to July 1966 and performed service in the Republic of Vietnam.
- Veteran filed for service connection for bladder cancer in October 2019; the December 2019 RO decision denied the claim.
- Veteran opted into the AMA (VA Form 10182) and initially elected Direct Review; the Board remanded for a VA exam in July 2020; an October 2020 RO decision again denied the claim but made several favorable findings.
- The RO found a current diagnosis of bladder cancer, qualifying Vietnam service, and presumptive herbicide exposure; under AMA, those favorable AOJ findings are binding on the Board unless rebutted.
- The National Defense Authorization Act for FY2021 added bladder cancer to the list of diseases presumptively associated with herbicide exposure; the Board granted service connection on a presumptive basis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to service connection for bladder cancer as due to herbicide exposure | Veteran: bladder cancer caused by herbicide exposure during Vietnam service | VA/RO: initially denied service connection (no compensable nexus shown at that time) | Granted — bladder cancer is now a presumptive disease linked to herbicide exposure and requirements met |
| Binding effect of AOJ favorable findings under AMA | Veteran: AOJ favorable findings should support grant | VA: AOJ findings are binding on Board only absent clear and convincing contrary evidence | AOJ favorable findings treated as binding absent clear and convincing contrary evidence |
| Scope of evidence on appeal under AMA Evidence Submission docket | Veteran: evidence submitted within allowable window should be considered | VA: Board may consider AOJ record plus evidence filed with or within 90 days of Form 10182 | Board limited review to AOJ evidence and any evidence timely submitted under 38 C.F.R. § 20.303 |
Key Cases Cited
- Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004) (sets out general elements required to establish service connection)
- Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (Board need only discuss relevant evidence and arguments reasonably raised)
- Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) (standards for Board discussion of material issues and reasons or bases)
- Robinson v. Peake, 21 Vet. App. 545 (CAVC 2008) (Board must address issues and theories reasonably raised by the record)