Citation Nr: 1753971	
Decision Date: 11/27/17    Archive Date: 12/07/17

DOCKET NO.  15-12 170A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut


THE ISSUES

1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for prostate cancer.

2. Entitlement to service connection for prostate cancer.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

C. Ryan, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1959 to July 1979.

This appeal arose to the Board of Veterans Appeals' (Board) from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut.

The Veteran previously applied for service connection for prostate cancer; the Veteran has since submitted new and material evidence demonstrating a connection between his current injury and exposure to radiation and or Agent Orange in service.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issue of entitlement to service connection for prostate cancer is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. In an April 2003 rating decision, the RO denied entitlement to service connection for prostate cancer, and the Veteran did not appeal this decision.

2. Evidence received since the April 2003 rating decision relates to the basis for the prior denial.


CONCLUSIONS OF LAW

1. The April 2003 rating decision that denied entitlement to service connection for prostate cancer is final. 

2. Evidence received since the April 2003 rating decision with regard to entitlement to service connection for prostate cancer is new and material. Thus, this new evidence warrants reopening the claim of entitlement to service connection for prostate cancer.


ORDER

The application to reopen the claim of entitlement to service connection for prostate cancer is granted.


REMAND

In a September 2017 communication to the Board, the Veteran requested an additional Compensation and Pension (C&P) examination before adjudication. Given the Veteran's request, and the fact that his last examination was conducted in January 2003, an additional examination is necessary. At the examination, the examiner is asked to address the Veteran's specific contentions that that protective strips given to the soldiers during the Nuclear Tests in the Pacific malfunctioned and the participating soldiers were thereby exposed to massive amounts of radiation. Moreover, the RO is asked to provide request more information concerning the Veteran's service aboard the USS Dunmire, and a determination and a complete rationale as to whether or not the Veteran's service is considered blue or brown water.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Schedule the Veteran for an examination to determine whether it is more or less likely (50 percent probability or greater) that the Veteran's current residuals of prostate cancer is related to his exposure to radiation or Agent Orange while in service.

***The examiner is specifically asked to provide a thorough discussion of what happened to the soldiers participating in the Nuclear Tests in the Pacific in 1962 and whether or not they were given protective equipment and, if so, if that equipment was adequate.

***The examiner is also asked to solicit a complete discussion from the Veteran concerning his service aboard the USS Dunmire while in Vietnam.

2. Determine whether or not the Veteran's service aboard the USS Dunmire should be considered to have taken place in blue or brown waters, and include a thorough explanation and rationale for that determine, including dates.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs