Citation Nr: 21011876 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 16-51 296 DATE: March 2, 2021 ORDER Entitlement to service connection for the residuals of prostate cancer, to include urinary incontinence status post prostatectomy (herein referred to as “prostate cancer”), is granted. Entitlement to service connection for erectile dysfunction, to include as secondary to prostate cancer, is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, the Veteran’s prostate cancer is at least as likely as not related to herbicide agent exposure during service in Vietnam. 2. Resolving reasonable doubt in the Veteran's favor, the Veteran’s erectile dysfunction is at least as likely as not the result of or proximately due to his service-connected prostate cancer. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for prostate cancer are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(6), 3.309(e). 2. The criteria for entitlement to service connection for erectile dysfunction as secondary to prostate cancer are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1965 to September 1967. This appeal is before the Board of Veterans’ Appeals (Board) from a July 2014 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. The Veteran seeks entitlement to service connection for prostate cancer residuals s/p prostatectomy and for erectile dysfunction as secondary to the prostate cancer residuals. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires 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 current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. For purposes of service connection for a disability resulting from exposure to herbicide agents, including a presumption of service connection, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1113, 1116; 38 C.F.R. § 3.307(a)(6)(iii). Certain diseases shall be service connected presumptively for veterans with service in the Republic of Vietnam, even if there is no record of such disease during service. 38 C.F.R. § 3.307(a). The diseases that will be presumed to be related to service as a result of exposure to herbicides are enumerated in 38 C.F.R. § 3.309(e), but a claimant is not precluded from establishing service connection for other disabilities with proof of actual direct causation, i.e. a link between the current disability and in-service exposure to herbicides. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Turning to the evidence of record, in a March 2008 statement to the Board, the Veteran alleged he underwent a prostatectomy to treat his prostate cancer in 1995. In February 2020, the VA determined the Veteran was presumed to have been exposed to in-service herbicide agents. During the Veteran’s January 2021 Board hearing he reiterated that he underwent a prostatectomy in 1995 and that he now suffers from erectile dysfunction as secondary to his prostatectomy. Also, in January 2021, the VA received a disability benefits questionnaire from the Veteran’s private physician, Dr. R.T. The report confirmed the Veteran was diagnosed with prostate cancer in 1994, underwent surgery in 1995, and currently suffers from erectile dysfunction as a result of his prostatectomy. The evidence of record also contains various VA medical notes and records that acknowledge the Veteran’s history of prostate cancer and his prostatectomy. After review of the claims file in conjunction with the applicable laws and regulations, the Board finds that after affording all reasonable doubt in the Veteran’s favor, his prostate cancer is the result of active duty service and his erectile dysfunction is the result of or proximately due to his prostate cancer. As to his prostate cancer, the Board finds that based on his SPRs and DD-214 the Veteran served in the Republic of Vietnam. Based on this, the Veteran is presumed to have been exposed to herbicide agents during service. See 38 C.F.R. § 3.307(a)(6)(iii). Moreover, the evidence of record indicates he has a history of prostate cancer, he underwent a prostatectomy, and numerous medical records acquiesce to his statements regarding prostate cancer. Furthermore, the Veteran’s prostatectomy occurred in 1995 and remanding to attempt to find private hospital records 25 years after the fact would be futile. As such, considering the extreme length of time since the Veteran filed his claim and the date of this decision and granting all benefit of the doubt to the Veteran, the Board finds his prostate cancer was the result of in-service herbicide agent exposure. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. Accordingly, the benefit of the doubt rule applies. Id. at 58. Therefore, the Veteran's claim of service connection for prostate cancer as due to in-service herbicide agent exposure, is granted. As to his claim for erectile dysfunction as secondary to his service-connected prostate cancer, as of the date of this decision, the Veteran is service-connected for prostate cancer. Thus, he fulfills the first requirement for secondary service connection. See Allen, 7 Vet. App. at 448 (1995); 38 C.F.R. § 3.310. Moreover, in January 2021, his own physician noted that the Veteran experiences erectile dysfunction as a result of his prostatectomy. Moreover, nothing in the claims file contradicts the medical determination of the Veteran’s private physician. As such, granting the benefit of the doubt to the Veteran, the Board finds his erectile dysfunction is the result of or proximately due to his service-connected prostate cancer. Accordingly, the benefit of the doubt rule applies. Id. at 58. Therefore, the Veteran's claim of service connection for erectile dysfunction as secondary to his service-connected prostate cancer, is granted. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.