Citation Nr: A21016752 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 201210-132271 DATE: October 14, 2021 ORDER The appeal to readjudicate the claim for entitlement to service connection for prostate cancer is granted. REMANDED Entitlement to service connection for prostate cancer is remanded. FINDING OF FACT New and relevant has been submitted on the issue of entitlement to service connection for prostate cancer. CONCLUSION OF LAW The criteria for readjudication of the claim for entitlement to service connection for prostate cancer have been met. 38 C.F.R. §§ 3.156(d), 3.2501. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from May 1983 to June 1991. Occupational exposure to ionizing radiation during his service has been conceded. In August 2020, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of entitlement to service connection for prostate cancer most recently addressed in a June 2020 rating decision. In August 2020, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had not been received. In December 2020, the Board of Veterans' Appeals received the Veteran's VA Form 10182, Decision Review Request: Board Appeal, wherein the Evidence Submission docket was elected. Therefore, the Board must determine whether new and relevant evidence has been received based only on the evidence of record at the time of the decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. 1. Whether new and relevant evidence has been submitted to warrant readjudication of the claim for entitlement to service connection for prostate cancer. The Veteran seeks service connection for prostate cancer. He contends that his prostate cancer is due to radiation exposure from working on subs in the Navy. See VA Form 21-526 EZ. There was no mention of asbestos exposure at this time or in any statements prior to VA's receipt of this claim. VA has conceded the Veteran's exposure to ionizing radiationthere is a DD 1141 Record of Exposure to Ionizing Radiation (April 2020). Further, the AOJ developed the issue vis-à-vis ionizing radiation to include obtaining an advisory opinion pursuant to 38 C.F.R. § 3.311. A June 2020 rating decision denied the claim based on ionizing radiation exposure. Favorable findings were (1) The Navy confirmed that the Veteran had occupational exposure to radiation from 1983 to 1991 during service; (2) prostate cancer is a chronic disease under the VA regulations; and (3) the Veteran has a current disability prostate cancer. Next, VA received a Supplemental Claim form in August 2020 along with a July 2020 medical statement from Igor Medic, M.D., that the Veteran's metastatic prostate cancer "could quite possibly be due to exposure to radiation" in service given the aggressiveness at the vet's "young age." Thereafter, an August 2020 rating decision denied the claim as the evidence submitted was not new and relevant. The Favorable Findings has not changed. A claimant may continuously pursue a claim or issue by filing a supplemental claim following notice of a decision by the AOJ or the Board. 38 C.F.R. § 3.2500(c). If new and relevant evidence is presented or secured with respect to the supplemental claim, the AOJ will readjudicate the claim taking into consideration all the evidence of record. 38 C.F.R. § 3.2501. New evidence is evidence not previously part of the actual record before agency adjudicators. 38 C.F.R. § 3.2501(a)(1). Relevant evidence is information that tends to prove or disprove a matter at issue in a claim, including evidence that raises a theory of entitlement that was not previously addressed. 38 C.F.R. § 3.2501(a)(2). If new and relevant evidence is not presented or secured, the AOJ will issue a decision finding that there was insufficient evidence to readjudicate the claim. Id. The Board concludes that new and relevant evidence has been received to readjudicate the appeal. 38 C.F.R. §§ 3.156(d), 3.2501. During the applicable evidentiary window, the Veteran submitted a favorable medical evidence linking the Veteran's prostate cancer to asbestos exposure in service. The attorney argues that there was asbestos exposure based on the Veteran's military occupational specialty (MOS) of machinist mate and the high probability of exposure with MOS codes 3365 and 4245. More specifically, since the June 2020 rating decision that originally denied the Veteran's claim, the Veteran as submitted a July 2020 medical statement from Dr. I.M., stating that the Veteran's metastatic prostate cancer "could quite possibly be due to exposure to radiation during his military service" given the "aggressiveness" of the cancer "at such a young age." The Veteran also submitted a December 2020 private medical opinion from Dr. C.K., who opined that the Veteran's prostate cancer is at least as likely as not caused by the Veteran's exposure to asbestos during his active naval service. This is new and relevant evidence. Accordingly, readjudication of the claim is warranted. REASONS FOR REMAND 2. Entitlement to service connection for prostate cancer is remanded. As explained above, new and relevant evidence has been submitted to readjudicate the claim for service connection for prostate cancer. However, because the AOJ has not considered the issue of entitlement to service connection for prostate cancer on the merits, to include on the basis of asbestos exposure, the Board finds that remand is necessary. Hickson v. Shinseki, 23 Vet. App. 394 (2010) (noting that where the Board reopens a claim, but the AOJ did not, the claim must be remanded for AOJ consideration unless there is a waiver from the appellant or no prejudice would result from the readjudication of the claim); Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993) (noting that the Board must consider whether a veteran is prejudiced by a lack of AOJ consideration of the merits of a claim). (Continued on the next page) The matters are REMANDED for the following action: After completion of any necessary development required by the duty to assist, readjudicate the Veteran's claim for prostate cancer. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.D. Anderson, 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.