Citation Nr: 18145836 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-35 545A DATE: October 30, 2018 ORDER Reopening of entitlement to service connection for prostate cancer, to include as due to herbicide agent exposure, is denied. REMANDED Entitlement to a rating in excess of 20 percent for lumbosacral strain with arthritis is remanded. Entitlement to a total disability rating based upon unemployability (TDIU), to include on an extraschedular basis, is remanded. FINDING OF FACT Entitlement to service connection for prostate cancer was denied in the February 2008 Rating Decision, which was not timely appealed and became final; new, but not material, evidence was subsequently associated with the claims file. CONCLUSION OF LAW The criteria for reopening entitlement to service connection for prostate cancer have not been met. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had qualifying service from October 1942 to October 1945 and August 1948 to August 1969. The July 2016 VA Form 9 hearing request was withdrawn through the August 2017 Correspondence. 1. Reopening Service Connection for Prostate Cancer In general, agency of original jurisdiction (AOJ) decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.200. However, if new and material evidence is presented or secured with respect to a disallowed claim, the Board shall reopen the claim and review its former disposition. 38 U.S.C. § 5108; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). “New” evidence is that which is not cumulative or redundant of that previously of record; “material” evidence is that which is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claims. 38 C.F.R. § 3.156. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). Entitlement to service connection for prostate cancer was denied in the February 2008 Rating Decision because the evidence did not show that the Veteran had in-service exposure to herbicide agents, or that his prostate cancer was otherwise attributable to service; a notification letter containing appeal rights was mailed concurrently in February 2008. The Veteran did not timely appeal the denial and it became final. Although new evidence has been associated with the claims file since the February 2008 denial, that evidence is not material. In the May 2013 Statement, the Veteran contended that he was exposed to herbicide agents at Norton Air Force Base in California, where, from June 1965 to August 1969, he commanded a squadron that was dispatched to the Republic of Vietnam (RVN) several times per year to complete electronics/communications projects. The Veteran contended that his duties required inspection, inventory, and maintenance of the support operations, which exposed him to herbicide agent residue on the equipment and vehicles his squadron transported back and forth. Additionally, Loma Linda VAMC records associated with the claims file in October 2013, include an August 2007 Agent Orange Examination and a September 2007 Agent Orange Examination Results Letter, which were not part of the Loma Linda VAMC records associated with the claims file in July 2007 (prior to the February 2008 Rating Decision). This evidence confirmed the diagnosis of prostate cancer and noted that prostate cancer was a condition presumed to be associated with herbicide agent exposure. Although the claims file has also been augmented with VA and private treatment records, no competent source has corroborated the Veteran’s contention that he was exposed to herbicide agents in service or indicated that his prostate cancer was otherwise related to service. Although the Board acknowledges the Veteran’s contentions, he does not have the scientific background to competently determine whether any equipment or vehicles he encountered in California tested positive for herbicide agent residue, which is not a lay-observable fact. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994); Military Personnel Records (the Veteran’s academic and professional history is primarily related to aeronautical engineering, electrical engineering, and bombardiering). Further, the Veteran has not submitted competent evidence corroborating his contended exposure and other competent evidence associated with the claims file indicates no such herbicide agent exposure. See July 2007 PIES Response (no records of exposure to herbicide agents); Military Personnel Records (foreign service in England, Japan, Morocco, and the Republic of Korea [only from February 1951 to October 1951, well before the Department of Defense’s confirmed use of herbicide agents near the Korean DMZ from April 1968 to July 1969]). Moreover, the August 2007 Agent Orange Examination and September 2007 Agent Orange Examination Results Letter simply confirm the diagnosis and inform the Veteran that the condition is presumed to be associated with herbicide agent exposure (for Veterans who were exposed to herbicide agents in service), in case the Veteran wanted to initiate a service connection claim; neither record documented the Veteran’s reports of exposure or confirmed exposure. Thus, although the lay statements and Agent Orange evidence are new, they are not material because they are not sufficient, by themselves or with previous evidence of record, to raise a possibility of substantiating the claim (specifically, the in-service event/injury element). Thus, the claim for reopening must be denied. REASONS FOR REMAND 1. Increased Rating for Lumbosacral Strain with Arthritis The Veteran was most recently afforded a VA spine examination in October 2013, at which time the examiner documented: no reports of flare-ups; initial forward flexion to 60 degrees with pain at 50 degrees; forward flexion still at 60 degrees after repetitive use testing; functional loss, functional impairment, and/or additional range of motion loss after repetitive use, including less movement than normal, pain on movement, and interference with sitting, standing, and/or weight-bearing; no radicular pain; no intervertebral disc syndrome [IVDS]; and regular use of a walker. The examiner made no findings regarding whether the Veteran had ankylosis. The Veteran generally contends that the manifestations of his lumbar spine disability are more severe than contemplated by the current 20 percent rating. See November 2014 Notice of Disagreement (NOD); October 2015 NOD; July 2016 VA Form 9. Crucially, the Board finds that the October 2013 examination lacks outcome-determinative information. Specifically, higher ratings are available if the Veteran has: (a) forward flexion of the thoracolumbar spine to 30 degrees or less (40 percent rating); (b) favorable ankylosis of the entire thoracolumbar spine (40 percent rating); (c) unfavorable ankylosis of the entire thoracolumbar spine (50 percent rating); and/or (d) unfavorable ankylosis of the entire spine (100 percent rating). 38 C.F.R. § 4.71a, Diagnostic Code 5237, General Rating Formula for Diseases and Injuries of the Spine. Not only was the October 2013 examination nearly five years ago, but it lacked information regarding ankylosis and is inconsistent with the holdings in DeLuca, Correia, and Sharp. DeLuca v. Brown, 8 Vet. App. 202 (1995) (examiners must contemplate additional functional loss due to weakness, fatigability, incoordination, or painful motion); Correia v. McDonald, 28 Vet. App. 158 (2016) (when possible, examiners must include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions); Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) (examiner must attempt to elicit information regarding the severity, frequency, duration, and functional loss during flare-ups before determining that additional range of motion loss due to flare-ups cannot be estimated). Thus, as both forward flexion and ankylosis findings are necessary to adjudicate the claim, further examination is required. 2. TDIU The Veteran generally contends that he is unable to obtain and/or maintain a substantially gainful occupation due to the severity of his lumbosacral strain with arthritis. See February 2015 VA Form 21-8940. As TDIU is inextricably intertwined with the increased rating claim herein, it must be remanded concurrently. Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a veteran’s claim for the second issue). The matters are REMANDED for the following action: 1. Examine the current severity of the lumbosacral strain with arthritis. (Continued on the next page)   2. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Daus, Associate Counsel