Citation Nr: 21006786 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 18-21 839 DATE: February 5, 2021 ORDER New and material evidence having been received, the petition to reopen a claim of entitlement to service connection for prostate cancer is granted. Entitlement to service connection for prostate cancer is granted. FINDINGS OF FACT 1. An unappealed September 2014 rating decision denied the claim of entitlement to service connection for prostate cancer. 2. The evidence associated with the claims file subsequent to the September 2014 rating decision is not cumulative nor redundant of the evidence previously of record; and relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for prostate cancer. 3. Resolving all doubt in favor of the Veteran, his prostate cancer is etiologically related to active service. CONCLUSIONS OF LAW 1. The September 2014 rating decision denying the claim for service connection for prostate cancer; new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for prostate cancer. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. § 3.156. 2. The criteria for service connection for prostate cancer have been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corp from July 1960 to July 1964. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this appeal is currently with the RO in Cheyenne, Wyoming. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ) of the Board in February 2021. Claim to Reopen As a threshold matter, the Board must determine whether new and material evidence has been submitted to reopen a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial) A rating decision becomes final when it has not been appealed within the prescribed time period and when no additional material evidence was received within a year of the decision; the decision is not subject to revision on the same factual basis. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In order to reopen a claim, there must be added to the record “new and material evidence.” 38 U.S.C. § 5108. 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 neither be cumulative or 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. The law provides that new and material evidence necessary to reopen previously and finally disallowed claims must be secured or presented since the time that the claims were finally disallowed on any basis, not only since the time the claims were last disallowed on the merits. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). 38 C.F.R. § 3.156(a), which defines new and material evidence, requires that evidence raise a reasonable possibility of substantiating the claim in order to be considered “new and material,” and defines material evidence as evidence, that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The Court of Appeals for Veterans Claims (Court) has held that 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). The Court further held that 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). When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran’s claim for service connection for prostate cancer was originally denied in a September 2014 rating decision. Evidence considered in the September 2014 rating decision included the Veteran’s service treatment and personnel records, post-service VA treatment records and an August 2014 opinion. Specifically, the rating decision indicates that the there was no evidence in his service treatment records of cancer or evidence that the cancer manifested to a compensable degree within one year of his discharge from active service and found that there was insufficient medical literature to show a plausible link between the Veteran’s prostate cancer and the contaminants found in the water at Camp Lejeune. In September 2014, the Veteran was advised of the September 2014 rating decision and his appellate rights. However, no further communication regarding his claims of entitlement to service connection prostate cancer was received until February 2016, when VA received his VA Form 21-0966 Intent to File, followed by his VA Form 21-4138 Statement in Support of Claim received by VA in October 2016. Therefore, the September 2014 rating decision is final as to the claim of entitlement to service connection for prostate cancer. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran’s claims for service connection was received prior to the expiration of the appeal period stemming from September 2014 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Moreover, no additional service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(c). The Veteran filed the instant claim to reopen his claim for entitlement to service connection for prostate, which was received by VA in October 2016. The pertinent evidence that has been received since the September 2014 rating decision includes continuing post-service treatment records; Board hearing testimony, statements submitted by the Veteran, to include articles in support of his claim and a private etiology opinion by Dr. W.C. Presuming the credibility of the Veteran’s sworn testimony before the Board, and the private etiology opinion by Dr. W.C., the Board finds that the evidence is new and material. In this regard, it has not been previously considered by VA and it raises a reasonable possibility of substantiating the claim of entitlement to service connection for prostate cancer. In this regard, the claim for service connection for prostate cancer was previously denied because there was no nexus to the condition and active service. However, Dr. W.C. opined that the Veteran had significant exposure to solvents during his service that resulted in development of prostate cancer. See e.g. Dr. W.C. Private Etiology Opinion, April 26, 2018. Accordingly, reopening of the claims of entitlement to service connection for prostate cancer is warranted. Service Connection Claim – Prostate Cancer The Veteran seeks to establish service connection for prostate cancer as a result of his exposure to the contaminated water at Camp Lejeune, and to include exposure to Trichloroethylene (TCE) pursuant to his duties as an automobile mechanic during active service. Specifically, in an April 2016 VA Form 21-4138 Statement in Support of Claim, the Veteran stated that he had exposure to TCE while stationed at Camp Lejeune. Additionally, in a statement submitted by the Veteran in April 2018, he stated that while serving in Camp Lejeune, he was sent to motor transport school. At that time, the Veteran reported that he worked with parts cleaning solvents, and spent many days in physical contact cleaning truck and Jeep parts. He reported that he did not work with trucks or auto service following separation from active service. The Veteran stated he was not aware of the dangers of working with the solvents. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Generally, to establish service connection a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a presumptive basis for certain chronic diseases, listed under 38 C.F.R. § 3.309(a). Presumptive service connection for “chronic diseases” may be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations to a degree of 10 percent disabling or more within one year of the Veteran’s separation from service. 38 C.F.R. §§ 3.303(b), 3.307(a)(3); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Prostate cancer is one such chronic disease listed under 38 C.F.R. § 3.309(a) and may be granted service connection presumptively by operation of law. Continuity of symptomatology may be shown by demonstrating “(1) that a condition was ‘noted’ during service or any applicable presumptive period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.” Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) Current law also provides an additional means to establish presumptive service connection as applicable to Camp Lejeune Contaminated Water related claims, even though there is no record of such disease during service. Presumptive service connection is available if such specified condition manifests to a compensable degree at any time after service in a veteran who had no fewer than 30 days (consecutive or nonconsecutive) of service at the United States Marine Corps Base Camp Lejeune and/or Marine Corps Air Station New River in North Carolina during the period beginning on August 1, 1953 and ending on December 31, 1987, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. See 38 C.F.R. §§ 3.307(a)(7), 3.309(f). However, prostate cancer is not included as one of the diseases where 38 C.F.R. § 3.309(f) is applicable. Therefore, the Veteran may not avail himself of presumptive service connection under 38 C.F.R. § 3.30 (f). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). However, for the purpose of evaluating lay evidence, to include a veteran’s statements about his health conditions, competent evidence is “limited to that which the witness has actually observed, and is within the realm of his personal knowledge.” Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). For example, although a lay person is competent to report observable symptomatology of an injury or illness (such as pain or the visible flatness of his feet), a lay person is “not competent to opine as to medical etiology or render medical opinions.” Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Lay evidence may also include the Veteran’s reported history at the time of medical examination or treatment. The Veteran’s report of injury, history of symptoms, history of treatments, and current complaints made to the doctor are lay evidence. Such history and complaints are not transformed into medical evidence just because the Veteran tells them to a doctor who writes it down. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (ruling that “a bare transcription of a lay history is not transformed into ‘competent medical evidence’ merely because the transcriber happens to be a medical professional....”); Robinette v. Brown, 8 Vet. App. 69, 77 (1995) (holding that a Veteran’s account, “filtered as it was through a layman’s sensibilities, of what a doctor purportedly said is simply too attenuated and inherently unreliable to constitute ‘medical’ evidence.”). In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 133537 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran’s military personnel records and DD Form 214 confirm that he completed an automotive mechanic course and that he was awarded a certificate of completion in April 1962. Such records also confirm the Veteran served in Camp Lejeune for greater than 30 days between 1960 and 1962. Service treatment records are negative for complaints, findings, or diagnosis of prostate cancer, or any prostate disorder. Post-service treatment records show a diagnosis of, and treatment for, prostate cancer. Turning to the question of whether there is an etiological relationship between the Veteran’s prostate cancer and service, the Board notes that the record contains two contradicting opinions which must be considered and weighed. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (stating that the probative value of medical evidence is based on the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). When faced with conflicting medical opinions, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board will consider each of these opinions below. At an August 2014 VA examination, the examiner opined the Veteran’s prostate cancer was less likely than not incurred in or caused by active service. In this regard, the examiner noted that prostate cancer is a very common cancer in males, with several risk factors with the most important being age, ethnicity, genetic factors, cadmium exposure, and possible dietary factors. The examiner also identified other possible risk factors to include being a former smoker, two to three alcoholic beverages every day, his weight; and indicated the employment history before and after active service was unknown; and that the Veteran did not have genetic risk factors. The examiner also identified medical literature indicating that only PERC and TCE have a “plausible connection to future development of prostate cancer,” and noted that only those with “higher levels of exposure are associated with an increased risk of development of prostate cancer.” Despite the limitations of industrial studies, the estimates of exposure are significantly higher than estimates of Camp Lejeune contaminated water exposure; and it is therefore likely that even the lower levels of workplace exposures exceed Camp Lejeune contaminated water exposures. Therefore, giving the benefit of the doubt to the Veteran, one would still use the risk assessment at the lower end of the occupational exposure range. The examiner noted that in a Finnish study that showed significant increase risk of prostate cancer in workers were shown after more than twenty years of occupational exposure to TCE. Moreover, other studies found that there was no increase risk after five years of workplace exposure; and there was no scientifically documented link between exposure to either PERC or TCE and the development of prostate cancer. However, the August 2014 VA examiner did not adequately consider the Veteran’s statements and contentions that he sustained continuous or near-continuous hazardous exposure pursuant to his duties as an automobile mechanic without proper protective equipment. See, e.g., Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate where the examiner did not comment on a Veteran’s reports of in-service injury and instead relied on the absence of evidence in a Veteran’s service treatment records to provide a negative opinion). Rather, the examiner focused solely on exposure in the contaminated water at Camp Lejeune; and did not discuss the significance, if any, of the common risk factors for prostate cancer. Notably, the examiner did not address the Veteran’s lack of familial history of prostate cancer, and indicated that occupational exposure before and after military service was unknown. This opinion is therefore afforded little, if any, probative weight. In contrast, a March 2018 private etiology opinion by Dr. W.C., a private urologist, was submitted. The urologist opined that the Veteran had significant exposure to TCE as a mechanic, which is linked to prostate cancer and noted that the Veteran’s cancer is non-familial. The urologist opined that the prostate cancer is the result of his exposure to TCE during active service. In this regard, the urologist noted that the Veteran had no family history of prostate cancer and opined that his “extreme and significant tetrachloroethylene exposure as a mechanic during the war contributed to his development of prostate cancer.” This opinion has clear conclusions and supporting data, as well as a reasoned medical explanation connecting the two. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Notably, the urologist noted the Veteran’s significant exposure to TCE, the lack of familial history of prostate cancer, and that TCE had been shown to aid in the development of prostate cancer. This opinion is therefore afforded great probative weight. In sum, the Veteran has competently and credibly reported significant exposure to TCE and other hazardous chemicals during his service and pursuant to his duties as an automobile mechanic. The Veteran has a current diagnosis of prostate cancer. There is no competent medical opinion of record against the claim. Rather, there is a probative private medical opinion from Dr. W.C. indicating the Veteran’s prostate cancer is more likely than not as a result of his active service. Moreover, there is no sufficient basis for the Board to reject this supportive opinion and to further develop the claim. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (holding that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant’s case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). Accordingly, the Board finds that the preponderance of the evidence is for the claim and entitlement to service connection for prostate cancer is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mariah N. Sim, 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.