Citation Nr: 21030185 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 15-34 967A DATE: May 18, 2021 ORDER The petition to reopen the claim of entitlement to service connection for prostate cancer is granted. The appeal is allowed to that extent only. The petition to reopen the claim of entitlement to service connection for erectile dysfunction is granted. The appeal is allowed to that extent only. REMANDED Entitlement to service connection for prostate cancer, to include as due to herbicide exposure and/or ionizing radiation exposure, is remanded. Entitlement to service connection for erectile dysfunction, to include as due to herbicide exposure and/or secondary to prostate cancer, is remanded. FINDINGS OF FACT 1. In an August 2007 rating decision, the Veteran's petition to reopen his claim of entitlement to service connection for prostate cancer was denied. In addition, the Veteran's claim of entitlement to service connection for erectile dysfunction was denied. 2. Additional evidence has been received which is not cumulative or redundant of the evidence of record at the time of the August 2007 rating decision and relates to unestablished facts necessary to substantiate the service connection claims on appeal. CONCLUSIONS OF LAW 1. The August 2007 rating decision denying the claim of service connection for prostate cancer and service connection for erectile dysfunction is final. 38 U.S.C. §§ 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2019). 2. New and material evidence had been received to reopen the claims of entitlement to service connection for prostate cancer and erectile dysfunction, and the claims are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Air Force from January 1967 to December 1970. These issues come before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. New and Material Evidence A claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is 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). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). The language of 38 C.F.R. § 3.156 (a) creates a low threshold for finding new and material evidence, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board is required to make its own determination to reopen a claim based on new and material evidence that is independent of the RO's decision to reopen a claim. Barnett v. Brown, 83 F.3d 1380, 1385 (Fed. Cir. 1996). 1. Entitlement to service connection for prostate cancer. 2. Entitlement to service connection for erectile dysfunction. By way of history, the Veteran submitted his service connection claim for prostate cancer in June 1996. In a June 1997 rating decision, the claim was denied. The RO found that there was no evidence of herbicide exposure or ionizing radiation exposure. The RO found that the Veteran did not have the required service in Vietnam exposure nor evidence of any herbicide exposure through some other military experience. The evidence of record at this time of this decision included the Veteran's STRs and a VA memorandum which denied ionizing radiation exposure. The Veteran did not appeal that decision or submit new and material evidence within one year of notification of the decision, thereby making that decision final after the one-year mark. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. In January 2007, the Veteran submitted the aforementioned service connection claims. In an August 2007 rating decision, the claims was denied. Regarding the prostate cancer claim, the RO found that there was no new and material evidence submitted to reopen the claim. Specifically, the RO found that while the Veteran submitted new evidence regarding herbicide exposure in Greenland and Eglin Air Force Base in Florida, it was not material as there was currently no VA recognition for herbicide exposure in Greenland or any part of Florida. The evidence of record at this time of this decision included updated post-service treatment records and the Veteran's statement detailing herbicide exposure in Greenland and Florida. Regarding the ED claim, the RO found that there was no relationship between this condition and military service. The RO also noted that there were no in-service complaints or treatment for ED found in the STRs. The Veteran timed filed a Notice of Disagreement (NOD) with this rating decision, which was confirmed by the RO in a May 2009 Statement of the Case (SOC). The Veteran did not perfect an appeal to the Board; therefore, the August 2007 rating decision became final in August 2008, one year after notice of the rating decision was mailed to the Veteran. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. In March 2013, the Veteran submitted additional claims for service connection for prostate cancer and ED. The evidence received since the time of the August 2007 rating decision includes additional VA treatment records, news articles submitted by the Veteran, a Department of Defense printout, a positive nexus opinion from the Veteran's treating physician, and his September 2019 Board testimony. The additional VA treatment records noted ongoing complaints and treatment for prostate cancer and ED. In addition, the news articles submitted by the Veteran detailed herbicide exposure at Eglin Air Force Base in Florida. Also, a Department of Defense printout detailed herbicide use at Eglin Air Force Base during the time that the Veteran was stationed there. Furthermore, a March 2014 private treatment record noted a positive nexus opinion between the Veteran's conditions and both herbicide exposure and radiation exposure. The Veteran testified on his various service connection claims at his Board hearing. He testified that he observed blacked out areas of the grounds of Eglin Air Force Base in Florida while hunting and fishing, which he believed was due to herbicide use. In addition, he testified that he ate game and fish caught on base in Florida. Further, he testified that he spent time on C-123 aircraft that he believed were used to spray herbicides. Finally, he testified that he had no family history of prostate cancer and that his ED is the result of his prostate cancer treatment. The aforementioned evidence is presumed credible for purposes of reopening a claim based on new and material evidence. This evidence is new and material as it pertains to: (1) whether the Veteran was exposed to herbicides during service; and (2) whether there was a medical nexus between his various disorders and military service. These are previously unsubstantiated facts that are necessary to substantiate the service connection claims on appeal. Therefore, the claims are reopened. REASONS FOR REMAND 1. Entitlement to service connection for prostate cancer. 2. Entitlement to service connection for erectile dysfunction. The Veteran contends that his prostate cancer and associated ED are the result of (1) non-ionizing radiation exposure while stationed in Greenland, and (2) herbicide exposure while stationed at Eglin Air Force Base (AFB) in Florida. Further, he contends that his ED is secondary to his prostate cancer. 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; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, service connection may be established on a presumptive basis for certain disabilities resulting from exposure to herbicides. The diseases which are presumed to result from exposure to herbicides include the Veteran's prostate cancer. 38 C.F.R. § 3.309 (e). The presumption requires exposure to an herbicide agent and a manifestation of the disease to a compensable degree at any time after service. 38 C.F.R. § 3.307 (a)(6)(ii). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962, to 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. § 1116 ; 38 C.F.R. § 3.307 (a)(6)(iii). If a veteran did not serve in the Republic of Vietnam during the Vietnam era or in Korea, in or near the DMZ between April 1, 1968 and August 31, 1971, actual exposure to herbicides must be verified through appropriate service department records or other sources for the presumption of service connection for an herbicide-related disease to be applicable. Otherwise, exposure to herbicides is not presumed. However, if actual exposure to herbicides has been established, the presumption of service connection found in 38 C.F.R. § 3.309 (e) for herbicide-related diseases is applicable. The Veteran's military personnel records demonstrate that he was stationed at Thule Air Force Base (AFB), Greenland from 1967 to 1968 and stationed at Eglin AFB, Florida from November 1968 to November 1970. The Veteran has also submitted several news articles and a Department of Defense printout regarding possible herbicide exposure at Eglin Air Force Base during his period of service. A review of the claims file demonstrates that in May 1997, VA issued a formal finding that the Veteran was not exposed to ionizing radiation while stationed in Greenland. To date, no formal finding has been issued regarding possible herbicide exposure while stationed at Eglin AFB. When there is an assertion of herbicide exposure outside of Vietnam, Korea, at or near the demilitarized zone, and certain other specified areas (i.e. Thailand), VA must follow the procedures set forth in the Veterans Benefits Administration (VBA) Adjudication Procedure Manual to aid in the determination as to whether herbicide exposure is established. VBA Manual, M21-1MR, IV, ii.2.C.10.o. Specifically, when a veteran provides the approximate dates of the asserted exposure, as well as the location and nature of such exposure, this information is to be furnished to the Compensation Service via e-mail at VAVBAWAS/CO/211/AGENTORANGE, and request a review of the Department of Defense's (DOD's) inventory of herbicide operations to determine whether herbicides were used as stated. If the Compensation Service is unable to confirm that the herbicides were so used, then the information is to be submitted to the Joint Services Records Research Center (JSRRC) to determine whether such exposure can be verified. If the JSRRC is unable to verify the exposure, the case must be referred to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist, based on the example provided in M21-1MR, Part IV, Subpart ii, 1.D.16c. Id. The Board finds that a remand is warranted so that the AOJ can undertake this development regarding the Veteran's claimed herbicide exposure while stationed at Eglin AFB. Furthermore, if the development confirms exposure to tactical herbicides (i.e. herbicides commonly referred to as Agent Orange), it may be necessary to obtain an addendum medical opinion addressing the nexus between such exposure and the development of the Veteran's prostate cancer and associated ED. The matters are REMANDED for the following action: 1. Obtain updated VA and/or private treatment records to the extent possible. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Conduct the following development (as directed in VBA's Adjudication Procedure Manual) regarding the Veteran's stated exposure to an herbicide agent such as that used in Agent Orange, including in any commercial herbicides, while stationed at Eglin Air Force Base from November 1968 to November 1970. (a.) Send the Veteran a letter requesting he provide any new information not already provided in his claims filed regarding his claimed exposure to an herbicide agent, such as that used in Agent Orange. (b.) Then, after the Veteran has been provided an opportunity for response (and whether or not he responds), send any information regarding the Veteran's described herbicide exposure to the Compensation Service at VAVBAWAS/CO/211/AGENTORANGE, and request a review of the Department of Defense's (DOD's) inventory of herbicide operations to determine whether herbicides were used as described. This should include: his claimed exposure from fishing and hunting on the grounds of Eglin Air Force Base. (c.) If the Compensation Service is unable to confirm that the herbicides were used as described, then the information is to be submitted to the Joint Services Records Research Center (JSRRC) to determine whether such exposure can be verified. (d.) If the JSRRC is unable to verify the exposure, the case must be referred to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist, based on the example provided in VBA's Adjudication Procedure Manual. (Continued on the next page) 3. After the above development is completed, conduct any additional development as suggested by any newly obtained evidence associated with the claims file. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.T. Massey, 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.