Citation Nr: 21010489 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 16-17 239 DATE: February 25, 2021 ORDER Entitlement to service connection for prostate cancer to include as secondary to exposure to certain herbicides is granted. Entitlement to service connection for depression to include as secondary to service-connected prostate cancer is granted. FINDINGS OF FACT 1. The evidence of record establishes that the Veteran served on a U.S. Navy vessel that operated within the 12-nautical-mile territorial sea of the Republic of Vietnam during his active service and, he is therefore presumed to have been exposed to herbicide agents. 2. The Veteran has been diagnosed with prostate cancer. 3. The Veteran’s depression is at least as likely as not caused by his now service-connected prostate cancer. CONCLUSIONS OF LAW 1. The criteria for service connection for prostate cancer have been met. 38 U.S.C. § 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for depression as secondary to prostate cancer have been met. 38 U.S.C. §§ 1110, 5107, 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1968 to July 1971. The Veteran’s claim for service connection prostate cancer was erroneously characterized as a new material evidence claim in a May 2016 Statement of the Case. It is clear from the claims file that following the July 2014 rating decision which denied the Veteran’s claim for prostate cancer; the Veteran filed a timely March 2015 Notice of Disagreement on the appropriate form prescribed by VA. As such, the Board will not address the issue of whether new and material evidence was submitted for the Veteran’s claim for service connection for prostate cancer. Service Connection 1. Entitlement to service connection for prostate cancer to include as secondary to exposure to certain herbicides VA laws and regulations provide that if a veteran was exposed to certain herbicide agents during service, certain listed diseases, to include prostate cancer, are presumptively service-connected. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.309 (e). A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to Agent Orange. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Merits There is no dispute that the Veteran was diagnosed with prostate cancer as most recently identified in February 2020 VA treatment record. Likewise, during the pendency of the appeal, the VA in a July 2020 rating decision conceded that the Veteran was exposed to Agent Orange during service. As discussed above, 38 C.F.R. § 3.309 (e) specifically lists those diseases covered by the provision regarding herbicide agent exposure, including prostate cancer. Thus, a connection between the Veteran’s prostate cancer and herbicide agent exposure can be presumed. Accordingly, service connection for prostate cancer on a presumptive basis is warranted and the appeal is granted. 38 C.F.R. §§ 3.307, 3.309. 2. Entitlement to service connection for depression to include as secondary to prostate cancer. Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. Merits At the onset, the Board notes that there is no dispute that the Veteran is now service connected for prostate cancer and is diagnosed with depression as noted in an August 2014 VA treatment record. The only remaining element is a nexus or relationship between the Veteran’s depression and his service-connected prostate cancer. On the element of nexus, the Board finds that the Veteran’s treating physician’s statements in August 2014 and September 2014 to be probative on the matter. The Veteran’s treating physician on three occasion twice in August 2014 and once in September 2014 wrote that the Veteran’s depression was related to his diagnosis of prostate cancer. Furthermore, the Board finds this evidence especially probative given the unique position the Veteran’s treating physician is in as a clinical professional that has treated the Veteran over a course of years. He is thus able to provide an insightful opinion on the nature of the Veteran’s disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board thus considers the Veteran’s physician’s opinions from August 2014 and September 2014 to be the most probative on the matter of the etiology of the Veteran’s depression. Considering the foregoing, the Board finds that service connection for depression as secondary to his service-connected prostate cancer is warranted and the appeal is granted. GAYLE E. STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Acosta, 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.