Citation Nr: 21007708 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 20-00 222A DATE: February 10, 2021 ORDER Entitlement to service connection for restless leg syndrome has been withdrawn. New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for bladder cancer (papillary urothelial carcinoma) is granted. New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for a prostate disorder is granted. New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for erectile dysfunction is granted. Entitlement to service connection for a prostate disorder is granted. Entitlement to service connection for status-post bladder carcinoma with residuals scars is granted. Entitlement to service connection for hernia secondary to bladder carcinoma residuals is granted. REMANDED Entitlement to service connection for erectile dysfunction is remanded. FINDINGS OF FACT 1. At his January 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran testified on the record that he wished to withdraw the issue of entitlement to service connection for restless leg syndrome. 2. The Veteran’s claim for service connection for bladder cancer was originally denied by a December 2004 rating decision. The RO declined to reopen the Veteran’s claim by July 2011, August 2012, and September 2012 rating decisions. The Veteran did not timely appeal any of those decisions and they became final. 3. The Veteran’s claim for service connection for a prostate disorder, claimed as prostate cancer, was originally denied by a July 2011 rating decision. Although the Veteran disagreed with that decision, he did not timely file a substantive appeal (VA Form 9) to the April 2014 statement of the case. Thus, the July 2011 rating decision is final. 4. The Veteran’s claim for service connection for erectile dysfunction was originally denied by an August 2012 rating decision. He did not appeal that decision it and became final. 5. Since the September 2012 rating decision, there is new and material evidence of record relating to the Veteran’s claim for service connection for bladder cancer. The law has changed and now includes bladder cancer within the presumptive disabilities for herbicide exposure. 6. Since the July 2011 rating decision, there is new and material evidence of record relating to the Veteran’s claim for service connection for a prostate disorder. 7. Since the August 2012 rating decision, there is new and material evidence of record relating to the Veteran’s claim for service connection for erectile dysfunction. 8. Section 9109 of the National Defense Authorization Act of Fiscal Year 2021 added three diseases to the presumptive list of disabilities for herbicide exposure. Bladder cancer was included on the list. The Veteran’s exposure to herbicide has been conceded and therefore his bladder cancer with residuals scars is presumptively related to his herbicide exposure. 9. The evidence of record shows that the Veteran underwent a prostatectomy secondary to bladder cancer metastasis. 10. The evidence of record shows that as a result of his prostatectomy, he has an ileal conduit. There is a hernia around his ostomy, but he is unable to repair it due to extensive scar tissue. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to service connection for restless leg syndrome have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The September 2012 rating decision denying the Veteran’s claim for service connection for bladder cancer is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104 (a), 20.1103. 3. The July 2011 rating decision denying the Veteran’s claim for service connection for prostate cancer/a prostate disorder is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104 (a), 20.1103. 4. The August 2012 rating decision denying the Veteran’s claim for service connection for erectile dysfunction is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104 (a), 20.1103. 5. New and material evidence having been received, the claim for service connection for bladder cancer with residual scars is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 6. New and material evidence having been received, the claim for service connection for prostate cancer is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 7. New and material evidence having been received, the claim for service connection for erectile dysfunction is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 8. The criteria for entitlement to service connection for status-post bladder (papillary urothelial) carcinoma with residual scars have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 9. The criteria for entitlement to service connection for a prostate disorder secondary to bladder carcinoma have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 10. The criteria for entitlement to service connection for hernia secondary to prostate disorder residuals have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Army from November 1969 to February 1972. He testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing in January 2021.   Withdrawal Withdrawal 1. Withdrawal of the issue of entitlement to service connection for restless leg syndrome. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by his or her authorized representative. Id. In the present case, at his Board hearing, the Veteran unambiguously stated on the record that he wished to withdraw his appeal as to the issue of entitlement to service connection for restless leg syndrome. There remain no allegations of errors of fact or law for appellate consideration as to that issue. Accordingly, the Board does not have jurisdiction to review the issue of entitlement to service connection for restless leg syndrome and it is dismissed. New and Material Evidence 2. Whether new and material evidence has been received to reopen the previously denied claims of entitlement to service connection for bladder cancer, a prostate disorder, and erectile dysfunction. A decision of the AOJ becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence is defined as 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). As noted above, the Veteran’s claim for service connection for bladder cancer was last denied by a September 2012 rating decision, his claim for prostate cancer/a prostate disorder was last denied by a July 2011 rating decision, and his claim for erectile dysfunction was last denied by an August 2012 rating decision. The Veteran did not appeal the September 2012 or August 2012 rating decisions and therefore they became final. He filed a notice of disagreement (NOD) to the July 2011 rating decision for service connection for prostate cancer. He was issued a SOC in April 2014. He did not file a substantive appeal and therefore the July 2011 rating decision also became final. Therefore, in order to reopen his claims, the Veteran must submit new and material evidence. The evidence must relate to an unestablished fact necessary to substantiate the claims. In November 2018, the Veteran submitted an Agent Orange Newsletter which stated, “the committee changed its category of association with herbicide exposure for bladder cancer and hypothyroidism from ‘inadequate or insufficient’ evidence to ‘limited or suggestive’ evidence of an association.” Further, the law has recently changed to include bladder cancer within the presumptive disabilities for service connection when herbicide exposure is found. This evidence relates to an unestablished fact, the “nexus” requirement, for the Veteran’s claim for service connection for bladder cancer. In addition, it raises an additional theory of entitlement for the issues of service connection for prostate cancer and erectile dysfunction. As such, the evidence is both new and it is also material. Therefore, the Veteran’s claims are reopened. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during such service to certain herbicide agents (e.g., Agent Orange). In the case of such a veteran, service incurrence for certain diseases will be presumed if they are manifest to a compensable degree within specified periods even if there is no record of such disease during service. Pertinently, section 9109 of the National Defense Authorization Act of Fiscal Year 2021 added three diseases to the list, including bladder cancer, the addition of which will be codified at 38 U.S.C. § 1116(a)(2)(J). Although this law did not contain an effective date and has not yet been codified, in the absence of such guidance it must be presumed that the law became effective upon its January 1, 2021 enactment. See Gozlon-Peretz v. United States, 498 U.S. 395, 404 (1991) (“It is well established that, absent a clear direction by Congress to the contrary, a law takes effect on the date of its enactment”). 3. Entitlement to service connection for status-post bladder (papillary urothelial) carcinoma with residual scars; entitlement to service connection for a prostate disorder; and entitlement to service connection for hernia secondary to prostate disorder residuals. An April 2020 VA Memorandum states “exposure to herbicides is conceded based on the Veteran’s duty or visitation (boots on ground) in the Republic of Vietnam.” In addition, private and VA treatment records document a history of bladder cancer. Thus, because the Veteran has been diagnosed with a disease presumed service connected in veterans exposed to herbicide agents, and he is presumed to have been exposed to herbicide agents based on his service in Vietnam, entitlement to service connection for status-post bladder carcinoma with residual scars is warranted on a presumptive basis. Further, VA treatment records from August 2008 state “he also had a prostatectomy because of the bladder cancer.” A February 2018 VA examination report confirms the Veteran’s prostatectomy was required as a result of his bladder carcinoma. The report states: Veteran was diagnosed with bladder cancer with metastasis to the prostate in 2003. On 3/2003 Veteran had a radical prostatectomy with an ileal conduit . . . He has a hernia around his ostomy but is unable to repair due to extensive scar tissue. Although the report does not confirm a diagnosis of prostate cancer specifically, metastasis is when cancer cells break away from where they first formed (bladder in this instance), travel through the blood or lymph system, and form new tumors (metastatic tumors) in other parts of the body (here, the prostate). The metastatic tumor is the same type of cancer as the primary tumor. Thus, the Board finds that entitlement to service connection for residuals of a prostatectomy (prostate disorder/carcinoma) is warranted. Moreover, service connection is also warranted for hernia. The VA examination report confirms that the Veteran now requires an ileal conduit and such conduit has developed a hernia. Put differently, service connection for hernia is warranted on a secondary basis as a result of the Veteran’s prostate disorder. REASONS FOR REMAND 1. Entitlement to service connection for erectile dysfunction is remanded. The Veteran contends that he has erectile dysfunction related to his prostate disorder. Given the grant of service connection above, the Board finds that remand is warranted to obtain a VA medical opinion. The matters are REMANDED for the following action: 1. Obtain a VA medical opinion addressing the etiology of the Veteran’s erectile dysfunction. After reviewing the entire claims file, the examiner is asked to opine: (a.) Whether the Veteran’s erectile dysfunction was at least as likely as not caused by his prostate disorder; (b.) Whether the Veteran’s erectile dysfunction was at least as likely as not aggravated by his prostate disorder; (c.) Whether the Veteran’s erectile dysfunction was at least as likely as not caused by any of his other service-connected disabilities (including bladder carcinoma); (d.) Whether the Veteran’s erectile dysfunction was at least as likely as not aggravated by any of his other service-connected disabilities (including bladder carcinoma); In so opining, the examiner should consider all medications the Veteran has been prescribed for his service-connected disabilities and discuss if any of those medications have caused or aggravated the Veteran’s erectile dysfunction. A complete rationale for any medical opinion rendered must be provided. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Martha R. Luboch, 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.