Citation Nr: 20023071 Decision Date: 04/02/20 Archive Date: 04/02/20 DOCKET NO. 19-26 756 DATE: April 2, 2020 ORDER The petition to reopen the claim of entitlement to service connection for prostate cancer is granted. REMANDED The issue of service connection for prostate cancer is remanded. FINDINGS OF FACT 1. In October 2011, VA denied the claim of entitlement to service connection for prostate cancer. The Veteran was informed in writing of the adverse determination and his appellate rights and did not submit a notice of disagreement (NOD). 2. The documentation submitted since the October 2011 rating decision is new and raises a reasonable possibility of substantiating the Veteran’s claim of service connection for prostate cancer. CONCLUSIONS OF LAW 1. The October 2011 rating decision that denied entitlement to service connection for prostate cancer is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2019). 2. New and material evidence sufficient to reopen the Veteran’s claim of service connection for prostate cancer has been presented. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force Reserve from December 1985 to September 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2019 rating decision of the Oakland, California Regional Office (RO). Reopening Generally, a claim that has been denied in an un-appealed RO decision is final and may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). The exception to this rule is 38 U.S.C. § 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. 38 U.S.C. § 5108 (2012); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence means existing evidence not previously submitted to agency decision makers. 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) (2019); Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The newly presented evidence need not be probative of all the elements required to award the claim, just probative of each element (or at least one element) that was a specified basis for the last disallowance of the claim. See Evans v. Brown, 9 Vet. App. 273, 283 (1996). Prostate cancer In October 2011, the RO denied the claim of entitlement to service connection for prostate cancer. The RO found that the Veteran did not undergo an in-service event, injury or disease and there was no etiology opinion relating the Veteran’s prostate cancer to service. In particular, the RO focused on the finding that the Veteran was not exposed to herbicides while on active duty. The evidence in October 2011 included the Veteran’s service treatment records (STRs), military personnel records (MPRs) and private treatment records. The STRs and MPRs were silent concerning an in-service event, injury or disease concerning prostate cancer. In the January 2011 VA application for compensation, the Veteran reported having been diagnosed with prostate cancer in August 2004. Private treatment records dated in September 2004 reflect a diagnosis of prostate residual adenocarcinoma. The Veteran was informed of this decision and apprised of his appellate rights, but he did not submit a NOD. Therefore, the October 2011 rating decision became final. 38 C.F.R. § 20.1103 (2019). The evidence received since the October 2011 rating decision includes the VA treatment records reflect no recurrence of prostate cancer, private treatment records reflect a diagnosis of prostate adenocarcinoma, a radiation risk activity worksheet reflecting the Veteran’s assertion of having been exposed to in-service radiation due to his duty specialty of Computer Systems Officer, officer performance reports reflecting the Veteran’s duties during service and two articles relating prostate cancer to microwave and electromagnetic radiation. Presuming its credibility, the Veteran’s radiation risk activity worksheet suggests he was exposed to radiation during service due to his duty specialty of Computer Systems Officer. The evidence raises a reasonable possibility of substantiating the claim. The evidence is new and relates to an unestablished fact – an in-service event, injury or disease – that is necessary to substantiate the Veteran’s claim. Therefore, the claim of entitlement to service connection for prostate cancer is reopened. REASONS FOR REMAND The matter is remanded for the following actions: 1. BACKGROUND FOR THE RO ADJUDICATOR The Veteran’s report of separation from the armed forces (DD Form 214) reflects that the Veteran’s duty specialty was Computer Systems Officer. In a military personnel record with a report period of July 1989 to May 1990, the Veteran’s duties included supporting missions with ground and satellite connectivity and deploying contingency communications systems. In the November 2018 radiation risk activity worksheet, the Veteran reported that due to his duty specialty, the Veteran was exposed to ambient radiation produced by microwave transmitting communication equipment. Due consideration shall be given to the places, types, and circumstances of such veteran’s service as shown by such veteran’s service record, the official history of each organization in which such veteran served, such veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a) (2012). The Regional Office adjudicator should review the evidence and determine whether the Veteran, as a Computer Systems Officer, the Veteran would have been exposed to ambient radiation from microwave transmitting communications equipment. The evidence reflects a current diagnosis of prostate cancer and the Veteran’s possible in-service exposure to ambient radiation. However, no VA examination has been provided. 2. After appropriate development, enter findings as to whether the Veteran’s active military duties involved a radiation risk activity and conduct all appropriate development. 3. If warranted under the law, schedule the Veteran for a VA examination to obtain an opinion as to the nature and etiology of his prostate cancer. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical and non-medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. Was the Veteran’s prostate cancer caused by his exposure to in-service ambient radiation? Although the examiner must review the VBMS file, his or her attention is drawn to the following: • In the August 1992 pre-separation medical history report, the Veteran answered in the negative to the question of whether he then had, or once had a tumor, growth, cyst, or cancer. • In the August 1992 pre-separation medical examination report, a spermatocele was noted on the Veteran’s left testicle. • In the March 1998 service medical history and examination report, the Veteran answered in the negative to the question of whether he then had, or once had a tumor, growth, cyst, or cancer, and no abnormalities concerning the Veteran’s prostate were noted, respectively. • A September 2004 private treatment record reflects the Veteran’s diagnosis of prostate residuals adenocarcinoma. • In a November 2004 private treatment record, the Veteran reported experiencing a urethral stricture. The Veteran was diagnosed with prostate cancer status-post radical prostatectomy nine weeks. • In a January 2005 private treatment record, it was noted that the Veteran’s prostate adenocarcinoma had not recurred. • A July 2010 article titled “Risks of Carcinogenesis from Electromagnetic Radiation of Mobile Telephone Devices,” reflects that several tumors may results in humans having been exposed to low-intensive microwave radiation. • A July 2011 article titled “Long-term Exposure to Microwave Radiation Provokes Cancer Growth: Evidences from Radars and Mobile Communication Systems,” reflects an increase in cancer due to long-term exposure to low intensity microwave radiation. • A May 2015 private treatment record reflects a diagnosis of prostate adenocarcinoma. • VA treatment records dated January 2016 and January 2018 noted a history of prostate cancer that had resolved in 2006 and that the prostate-specific antigen (PSA) remained undetectable. • In a November 2018 radiation risk activity worksheet, the Veteran reported having been exposed to ambient radiation from microwave transmitting communication equipment and equipment used in air traffic control operations. 4. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period should be allowed for response before the case is returned to the Board. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Cohen, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.