Citation Nr: 21014671 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 19-35 360 DATE: March 15, 2021 ORDER New and material evidence has been submitted and the claim for service connection for prostate cancer is reopened. Entitlement to service connection for prostate cancer to include as secondary to radiation exposure is granted. FINDINGS OF FACT 1. In an unappealed June 2017 decision, the Board denied service connection for prostate cancer based on a finding that there was insufficient evidence of a nexus between the Veteran’s radiation exposure and his prostate cancer. 2. The evidence added to the record since the June 2017 Board decision, when viewed by itself or in the context of the entire record, relates to an unestablished fact that is necessary to substantiate the claim of service connection for prostate cancer. 3. It is at least as likely as not that the Veteran’s prostate cancer is related to his radiation exposure during his active duty service. CONCLUSIONS OF LAW 1. The July 2017 decision that denied service connection for prostate cancer is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. 2. With respect to the Veteran’s claim for service connection for prostate cancer, new and material evidence has been received since the July 2017 denial. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for prostate cancer to include as secondary to radiation exposure have been met. 38 U.S.C. § 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from July 1955 to February 1959. New and Material Evidence Initially, the Board notes that whenever a claim to reopen is filed, regardless of how it was characterized by the agency of original jurisdiction, the Board must make a de novo determination as to whether new and material evidence has been received. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996) (whether new and material evidence has been submitted must be asked and answered by the Board de novo whenever a claim to reopen is filed). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Whether new and material evidence has been received to reopen the claim for service connection for prostate cancer. The Veteran was denied service connection for prostate cancer in a June 2017 rating decision because there was insufficient evidence that the Veteran’s disability was related to his active duty service. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. 38 C.F.R. § 3.156(a); Shade v. Shinseki, supra. The October 2020 correspondence from the Veteran’s treating phsycian which linked his prostate cancer to his radiation exposure while on active duty is new in that it was not previously of record. It is also material because it relates to unestablished facts necessary to substantiate the Veteran’s claim for service connection for prostate cancer. Specifically, due to the prior lack of evidence showing a relationship between the Veteran’s prostate cancer and his active duty service, this new evidence is material because it relates to an element that was previously not shown, a nexus. See Shade, supra. Accordingly, the Board finds that new and material evidence has been submitted, and the claim for service connection for a prostate cancer is reopened. 38 U.S.C. § 5108. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Entitlement to service connection for prostate cancer to include as secondary to radiation exposure The Veteran contends that his prostate cancer is related to exposure to radiation in service. The Board finds that the evidence supports the Veteran’s contention and service connection for prostate cancer is warranted. There has been no dispute that the Veteran has prostate cancer as noted in the Board’s July 2017 decision which cited a March 2008 private treatment note. Nor is there any dispute that the Veteran was exposed to ionizing radiation as noted in a March 2012 Air Force Safety Center memorandum. The only dispute is whether there is sufficient evidence to establish a nexus between the Veteran’s radiation exposure in service and his later development of prostate cancer. Turning to nexus, the Board notes that the record contains two positive nexus opinions, a July 2018 positive nexus from a VA examiner, and an October 2020 opinion from the Veteran’s treating physician. The July 2018 VA examiner examined the Veteran, reviewed the record and provided a rationale for her opinion. The October 2020 physician has treated the Veteran for his prostate cancer. As the Court of Veterans Claims has held most of the probative value of a medical opinion comes from its reasoning and the Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds that these two nexus opinions, the most probative on the matter of the etiology of the Veteran’s prostate cancer. Accordingly, entitlement to service connection for prostate cancer 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.