Citation Nr: 18144776 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 14-12 695 DATE: October 25, 2018 ORDER Service connection for prostate cancer is granted. FINDING OF FACT The most probative evidence indicates that the Veteran’s post-service diagnosis for prostate cancer was causally related to his active service, including his exposure to ionizing radiation. CONCLUSION OF LAW The criteria for service connection for prostate have been met. 38 U.S.C. §§ 1110, 1112, 1133, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran died in February 2016, and thereafter, the appellant filed a claim for Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits (VA Form 21-534). From October 10, 2008, an eligible person may process the Veteran’s claim to completion if a request for substitution is filed no later than one year after the date of the Veteran’s death. 38 U.S.C. § 5121A. Here, the appellant filed a VA Form 21-534 within the applicable time frame, and in June 2016, the Agency of Original Jurisdiction recognized her as a valid substitute for the Veteran. New and Material Evidence In a March 2006 rating decision, the RO denied service connection for prostate cancer. The Veteran stated his prostate cancer was due to his in-service exposure to radiation. The RO considered the evidence that the Veteran served on the USS Magoffin, but noted his service was after its participation in Operation HARDTACK. The RO noted there were no documents or evidence of any radiation exposure because the Veteran joined the ship 5 days after ended its participation, so there would be no radiation dose monitoring being conducted aboard ship. Consequently, there was no date available to reconstruct a dose estimate. Furthermore, a review of the radiation exposure registration revealed no reports of the Veteran’s occupational exposure to ionizing radiation. Last, the RO considered the lay statements of record suggesting during the Veteran’s time in Okinawa various chemicals were sprayed for insect and weed control. Nevertheless, the RO noted there was no medical evidence to suggest that the chemicals sprayed in Okinawa caused prostate cancer. Therefore, the RO determined there was no medical evidence to support a nexus to service and the Veteran’s service connection claim was denied. The Veteran was notified of that decision and his appeal rights. He filed a NOD in April 2006, and the RO issued a SOC in February 2007. The Veteran perfected his appeal to the Board by filing a substantive appeal in October 2007. However, at his June 2009 DRO hearing, the Veteran withdrew his appeal for service connection for prostate cancer. Accordingly, March 2006 rating decision is final. 38 U.S.C.§ 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103 (2017). At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring the submission of new and material evidence. 38 C.F.R. § 3.156(c) (2017). After the March 2006 rating decision additional service records were added to the Veteran’s file. Specifically, in March 2007, a VA letter was added that confirmed the Veteran’s presence on USS Magoffin shortly after the ship completed a mission, which resulted in some occupational exposure to radiation. Accordingly, new and material evidence is not needed to reopen his previously denied claim and it will be reconsidered instead. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2017); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Second, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2017). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Radiation Exposure For a claim based upon exposure to ionizing radiation during service, service connection can be demonstrated by three different methods. First, 38 C.F.R. § 3.309(d)(2) provides a list of cancers that will be presumptively service-connected if manifested in a radiation-exposed veteran. See 38 U.S.C. §§ 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309. Second, 38 C.F.R. § 3.311(b) provides a list of “radiogenic diseases” that will be service connected provided that certain conditions specified in that regulation are met. Third, direct service connection can be established by “show[ing] that the disease or malady was incurred during or aggravated by service,” a task which “includes the difficult burden of tracing causation to a condition or event during service.” Rucker v. Brown, 10 Vet. App. 67, 71 (1997) (citing Ramey v. Brown, 9 Vet. App. 40, 44 (1996); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994)). A “radiation-exposed veteran” is defined by 38 C.F.R. § 3.309 (d)(3) as a veteran who, while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. “Radiation-risk activity” includes participation in Operation HARDTACK 1 during the period from April 28, 1958 through October 31, 1958. In a March 2007 letter, VA found that the Veteran served aboard the USS Magoffin beginning July 20, 1958 and disembarked on September 1, 1987. The Defense Threat Reduction Agency stated that he was not a confirmed participant in Operation HARDTACK 1, but his presence on this ship during the time period resulted in occupational exposure to residual radiation. The appellant is alleging that the Veteran’s prostate cancer is related to his exposure to radiation in service. Because the Veteran was not a confirmed participant in Operation HARDTACK 1, the presumptions set forth in 38 C.F.R. § 3.309 (d) do not apply. Furthermore, prostate cancer is not among the conditions listed as presumptively associated with radiation exposure. Id. Therefore presumptive service connection under C.F.R. § 3.309 (d) is not warranted. To consider a claim under 38 C.F.R. § 3.311, the evidence must show the following: (1) the Veteran was exposed to ionizing radiation in service; (2) he subsequently developed a radiogenic disease; and; (3) such disease first became manifest within a period specified by the regulation. 38 C.F.R. § 3.311(b). If any of the foregoing three requirements has not been met, service connection for a disease claimed as secondary to exposure to ionizing radiation cannot be granted under 38 C.F.R. § 3.311. See 38 C.F.R. § 3.311(b)(1)(iii). As noted above, VA has found that the Veteran was exposed to ionizing radiation while aboard the USS Magoffin. The Defense Threat Reduction Agency provided does estimates for the Veteran. Prostate cancer is a radiogenic disease. 38 C.F.R. § 3.311(b)(2)(xxiii). To be eligible for the presumption, prostate cancer must have become manifest 5 years or more after exposure, as happened in this case. 38 C.F.R. § 3.311(b)(5)(iv). In a September 2018 VA opinion, a urologist stated that it was likely the Veteran’s prostate cancer was initiated, aggravated, and enhanced by his radiation exposure. He concluded that after reviewing the Veteran’s records, that his radiation exposure contributed to the development of his prostate cancer. Accordingly, the Board finds service connection is warranted under 38 C.F.R. § 3.311. Service connection for prostate cancer is granted. See Alemany v. Brown, 9 Vet. App. 518 (1996). Herbicide Agent Exposure The appellant asserts that the Veteran was exposed to herbicide agents in Okinawa, Japan. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period starting on January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 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). Okinawa is not a location where exposure to herbicides is presumed. Prostate cancer is a disease that is presumptively associated with exposure to herbicides. 38 C.F.R. § 3.309 (e). Because the Board grants service connection for prostate cancer due to exposure to radiation in service, it need not address whether the Veteran was exposed to herbicides. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Brunot, Associate Counsel