Citation Nr: 1713941 Decision Date: 04/28/17 Archive Date: 05/05/17 DOCKET NO. 16-32 509 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim for entitlement to service connection for prostate cancer, to include as secondary to radiation exposure, Agent Orange exposure, and/or prostatitis. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to prostate cancer. 3. Entitlement to service connection for gynecomastia, to include as secondary to prostate cancer. 4. Entitlement to service connection for overactive bladder, to include as secondary to prostate cancer. REPRESENTATION Veteran represented by: Ralph J. Bratch, Attorney ATTORNEY FOR THE BOARD R. Dodd, Counsel INTRODUCTION The Veteran served on active duty from March 1957 to September 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A motion to advance this appeal on the Board's docket has been raised by the Board's Acting Vice Chairman. The Undersigned is granting the motion and advancing the appeal on the docket upon advanced age. 38 C.F.R. 20.900(c) ("advanced age" is defined as 75 or more years of age.) FINDINGS OF FACT 1. The Veteran filed a claim for service connection for prostate cancer in September 2002. In an October 2003 rating decision, the RO denied service connection. The Veteran then submitted a timely notice of disagreement (NOD) in December 2003. A statement of the case (SOC) was provided in September 2004. The Veteran then perfected his appeal with the timely submission of a VA Form 9 (Substantive Appeal) in November 2004. The Veteran's appeal was then adjudicated by the Board in an August 2007 decision, in which it continued to deny the Veteran's claim. The Veteran did not submit any additional evidence or an intention to appeal this decision in accordance with the appellate procedures for Board decisions and it was finalized 120 days later in December 2007. 2. The evidence added to the record since the final August 2007 Board decision is not cumulative or redundant of the evidence of record on file at the time and raises a reasonable possibility of substantiating the claim of entitlement to service connection for prostate cancer. 3. Resolving all doubt in the Veteran's favor, the Board concedes that the Veteran had exposure to herbicides during his service in Thailand; he is currently diagnosed with prostate cancer. 4. The probative medical evidence of record shows that the Veteran's diagnosed erectile dysfunction is caused by his service-connected prostate cancer. 5. The probative medical evidence of record shows that the Veteran's diagnosed gynecomastia is caused by his service-connected prostate cancer. 6. The probative medical evidence of record shows that the Veteran's diagnosed overactive bladder is caused by his service-connected prostate cancer. CONCLUSIONS OF LAW 1. The September 2007 Board decision that denied the Veteran's claim of entitlement to service connection for prostate cancer is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2016). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for prostate cancer. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2016). 3. The criteria for service connection for prostate cancer as secondary to herbicide exposure are met. 38 U.S.C.A. §§ 1110, 1131, 1116, 5103, 5103(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2016). 4. The criteria for service connection for erectile dysfunction as secondary to service-connected prostate cancer are met. 38 U.S.C.A. §§ 1110, 1131, 1116, 5103, 5103(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2016). 5. The criteria for service connection for gynecomastia as secondary to service-connected prostate cancer are met. 38 U.S.C.A. §§ 1110, 1131, 1116, 5103, 5103(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2016). 6. The criteria for service connection for overactive bladder as secondary to service-connected prostate cancer are met. 38 U.S.C.A. §§ 1110, 1131, 1116, 5103, 5103(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016). Legal Criteria New and Material Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104 (b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service Connection 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 the active military service or, if pre-existing such service, was aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016). Service connection may be established for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury; or, for any increase in severity of a nonservice-connected condition proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected condition. 38 C.F.R. § 3.310(a)-(b). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Certain chronic diseases, such as cancer, may be presumed to have been incurred in service if manifested to a compensable degree within one year after discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). With chronic diseases shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the disease entity is established, there is no requirement of an evidentiary showing of continuity. If the condition noted during service (or in the presumptive period) is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, then generally a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that as an alternative to the nexus requirement, service connection for a chronic disease listed under 3.309(a) may be established through a showing of continuity of symptomatology since service). In each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by his service record, the official history of each organization in which he served, his treatment records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a). In making all determinations, the Board must consider fully the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence also can be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1377 (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis Prostate Cancer New and Material The Veteran filed a claim for service connection for prostate cancer in September 2002 that was denied in an October 2003 rating decision and subsequently appealed. The evidence at the time of the adjudication of the Veteran's claim in an August 2007 Board decision consisted of the Veteran's statements, indicating that he was exposed to Agent Orange while serving at Eglin Air Force Base; service treatment records, which did not reveal any treatment or diagnoses for any prostate disabilities; and current treatment records showing treatment for prostate cancer since 1992. The August 2007 Board decision denied that claim on the basis that there was no showing of any in-service incurrence, to include any presumed exposure to Agent Orange during military service. The Veteran was notified of the decision on August 16, 2007. He had until December 14, 2007,to submit additional evidence or an intention to appeal. The Veteran did not submit any new evidence or claim until March 2012, over 4 years after the deadline. Therefore, the August 2007 Board decision became final. Since the August 2007 rating decision was finalized, the Veteran has submitted additional statements, to include indications that his condition was related to in-service radiation exposure, diagnosis of chronic prostatitis, and Agent Orange exposure while serving in Thailand. Additionally, service personnel records and service treatment records have been associated with the claims file that shows that the Veteran had in-service treatment for chronic prostatitis and verified service on the flight line while stationed at the Royal Thai Air Force Base in Udorn, Thailand. Last, the Veteran has submitted photographs showing the location of the flight line in relation to the base perimeter as well as indications of the location of barracks in the same vicinity. These statements, treatment records, and photographs are new because they had not been previously considered. They are also material because they address the issue of the existence of the potential for a nexus as well as the existence of in-service Agent Orange exposure. This at the very least meets the minimum threshold requirements under Shade, 24 Vet. App. at 110 for a finding of new and material evidence. As new and material evidence has been received, the claim of entitlement to service connection for prostate cancer is reopened. Merits The Veteran contends that his diagnosed prostate cancer is the result of his military service. In particular, the Veteran contends that he was exposed to Agent Orange while stationed in Southeast Asia. The Veteran has alleged several theories of exposure to herbicides during military service, which particularly includes performing work as an aircraft mechanic living and working near the flight line and perimeter of the Royal Thai Air Force Base at Udorn, Thailand. A review of the Veteran's service treatment records was absent for any discussion of treatment, symptoms, or diagnoses of prostate cancer. It is noted, however, that the Veteran was treated for chronic prostatitis in service. A review of the Veteran's service personnel records shows that he was stationed in Udorn, Thailand from January 1974 to August 1974. The record also shows that the Veteran performed primary duties during this time period inspecting aircraft on the flight line. The Veteran submitted documentation and pictures showing that the flight line at the Royal Thai Air Force Base, Udorn, Thailand was adjacent to the base perimeter. The Veteran also indicated on an aerial photograph of the base that his barracks were also located next to the flight line and, in turn, near the base perimeter. A review of the Veteran's outpatient treatment records shows that he was diagnosed with prostate cancer in 1992 and underwent prostate removal surgery in November 1992. He has been treated for that condition and its residuals since that time. The Veteran was provided with VA examination in July 2006 and August 2016. Upon a review of the claims file, subjective interview and objective testing, the Veteran was diagnosed with prostate cancer that is found to still be active and require current treatment. The July 2006 VA examiner opined that a medical opinion regarding exposure to herbicides could not be rendered without resorting to conjecture or mere speculation. The August 2016 VA examiner opined that prostate cancer is less likely as not related to in service complaints of prostatitis. It is further noted that the preponderance of medical evidence and expertise do not consider chronic prostatitis a risk factor for prostate cancer. A Veteran who is exposed to Agent Orange or other herbicides during service and develops certain diseases, such as prostate cancer, will be service-connected for such disorder. 38 C.F.R. § 3.309 (e)(2016). In this case, the medical evidence shows that the Veteran has been diagnosed with prostate cancer since 1992. Accordingly, if exposure to herbicides is established service connection would be warranted. The Veteran relates, and service personnel records establish, that he had the military occupational specialty (MOS) of a fabrication superintendent and a nondestructive inspection technician and was assigned to Udorn, Thailand from January 1974 to August 1974. Although the Veteran's personnel records do not detail his specific day to day duties, his periodic evaluation reports indicated that he worked on the flight line as an aircraft inspector at the Royal Thai Air Force Base in Udorn, Thailand. The Veteran submitted documentation and pictures showing that the flight line at the Royal Thai Air Force Base, Udorn, Thailand was adjacent to the base perimeter. He has alternatively alleged exposure due to his barracks also being in the vicinity of the perimeter of that base. For purposes of establishing service connection for a disability resulting from exposure to herbicide agents, a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era, beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during that service, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 U.S.C.A. § 1116(f) (West 2014); 38 C.F.R. §§ 3.307(a)(6)(iii) , 3.309(e) (2016). The following diseases are deemed associated with herbicide exposure, under current law: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type II diabetes; Hodgkin's disease; chronic lymphocytic leukemia; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); ischemic heart disease; Parkinson's disease; hairy cell leukemia; and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2016). The foregoing diseases shall be service connected if a Veteran was exposure to an herbicide agent during active military, naval, or air service, if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 (West 2014) and 38 C.F.R. § 3.307(d) (2016) are also satisfied. For purposes of presumptive service connection based on exposure to an herbicide agent, the diseases listed at section 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii) (2016). Accordingly, the law provides that for claims based on the chronic effects of exposure to Agent Orange, presumptive service connection may be established for certain diseases, including prostate cancer, as specified above. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). Here, the Veteran has alleged several theories of exposure to herbicides during military service, which particularly includes performing work as an aircraft mechanic living and working near the flight line and perimeter of the Royal Thai Air Force Base at Udorn, Thailand. In regard to the Veteran's Thailand service, VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as evidenced in the Project CHECO Southeast Asia Report: Base Defense in Thailand. The Compensation Service has determined that a special consideration on herbicide exposure on a factual basis should be extended to those Veterans whose duties placed them on or near the perimeters of Thailand military bases. VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(q) ('M21-1MR') (now incorporated in the Live Manual), provides that herbicide exposure may be conceded on a direct, facts-found basis if the Veteran served with the United States Air Force in Thailand during the Vietnam Era at one of the Royal Thai Air Force Bases (RTAFBs) at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang, and served as an Air Force security policeman, security control dog handler, member of the security police squadron, or otherwise served near the air base perimeters as shown by evidence of MOS, daily work duties, performance evaluation reports, or other credible evidence. Here, the Veteran has provided competent and credible evidence via his statements, service personnel records that reflect his service as an aircraft inspector on the flight line at Udorn Royal Thai Air Force Base, and maps that show that the flight line was located adjacent to the perimeter of the base during the time period in which Agent Orange would have been sprayed along the perimeter in Thailand. Therefore, resolving any reasonable doubt, the Board concedes that, due to the Veteran's duties and location, that the Veteran was exposed to Agent Orange during his service at Udorn Royal Thai Air Force Base. Upon the establishment of a proper nexus for the Veteran's current prostate cancer to his conceded in-service Agent Orange exposure, service connection for prostate cancer is granted. See 38 C.F.R. § 3.309(e). Erectile Dysfunction, Gynecomastia, and Overactive Bladder In the present case, the Board finds that the Veteran has diagnoses of erectile dysfunction, gynecomastia, and an overactive bladder, as per the July 2006 VA examination (finding a diagnosis of gynecomastia), the August 2016 VA examination (finding diagnoses of erectile dysfunction and overactive bladder), and associated outpatient treatment records. The evidence shows that the Veteran has carried these diagnoses from the 1990s to present. The "current disability" requirement for service connection will be met when there is a disability at the time of filing or during the pendency of a claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Here, the Veteran clearly had diagnoses of erectile dysfunction, gynecomastia, and an overactive bladder during the applicable claims period and confirmed by the VA examinations. The Board also finds that the Veteran has a service-connected disability, prostate cancer, which he has alleged is a causative factor for his diagnoses of erectile dysfunction, gynecomastia, and an overactive bladder. Turning to the question of whether there is a nexus, or link, between the current shown disabilities and the service-connected disability, the Board notes that the only nexus opinions of record, from the July 2006 and August 2016 VA examiners, provided positive opinions, finding that the Veteran's diagnoses of erectile dysfunction, gynecomastia, and an overactive bladder were in fact caused by the service-connected prostate cancer. In the July 2006 VA examination, it was noted that medication that the Veteran had taken to treat his prostate cancer resulted in gynecomastia. In the August 2016 VA examination, the VA examiner revealed that the Veteran's prostate cancer treatment and, in particular, prostate removal surgery, resulted in residual erectile dysfunction and voiding dysfunction, diagnosed as an overactive bladder. As such, granting the Veteran's claim for service connection of erectile dysfunction, gynecomastia, and an overactive bladder as secondary to his service-connected prostate cancer is, thus, appropriate in light of the evidence of record. In light of the foregoing, the Board is satisfied that the criteria for entitlement to service connection for erectile dysfunction, gynecomastia, and an overactive bladder have been met. ORDER New and material evidence having been received; the claim of entitlement to service connection for prostate cancer is reopened. Entitlement to service connection for prostate cancer, to include as secondary to radiation exposure, Agent Orange exposure, and/or prostatitis, is granted subject to the laws that govern the payment of monetary benefits. Entitlement to service connection for erectile dysfunction, to include as secondary to prostate cancer, is granted subject to the laws that govern the payment of monetary benefits. Entitlement to service connection for gynecomastia, to include as secondary to prostate cancer, is granted subject to the laws that govern the payment of monetary benefits. Entitlement to service connection for overactive bladder, to include as secondary to prostate cancer, is granted subject to the laws that govern the payment of monetary benefits. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs