Citation Nr: 1324028 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 12-06 681 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for adenocarcinoma of the prostate, to include as due to herbicide exposure. 2. Entitlement to service connection for adenocarcinoma of the prostate, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from August 1945 to October 1947, from July 1949 to March 1955, and from May 1955 to July 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Nashville, Tennessee. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. An unappealed Board decision in June 2005 denied the Veteran's claim of entitlement to service connection for adenocarcinoma of the prostate. 2. An unappealed April 2009 RO decision denied the Veteran's claim to reopen the claim of entitlement to service connection for adenocarcinoma of the prostate. 3. The evidence associated with the claims file subsequent to the April 2009 RO decision is new, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 4. Based on his credible assertion of serving in close proximity to the perimeter of Nakhon Phanom Royal Thai Air Force Base during the Vietnam War, and resolving all doubt in his favor, the Veteran is presumed to have been exposed to herbicide agents. 5. The Veteran's diagnosed adenocarcinoma of the prostate is presumed related to his exposure to herbicide agents while serving in Thailand. CONCLUSIONS OF LAW 1. The June 2005 Board decision that denied entitlement to service connection for adenocarcinoma of the prostate, and the April 2009 RO decision that denied the Veteran's claim to reopen the claim of entitlement to service connection for adenocarcinoma of the prostate, are final. 38 U.S.C.A. §§ 7104(b), 7105 (West 2002); 38 C.F.R. §§ 20.1100, 20.1103 (2012). 2. Evidence received since the April 2009 RO decision, that denied the Veteran's claim to reopen the claim of entitlement to service connection for adenocarcinoma of the prostate, is new and material and the Veteran's claim of entitlement to service connection for adenocarcinoma of the prostate is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. Adenocarcinoma of the prostate is presumed related to herbicide exposure resulting from active duty service in Thailand. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103(a), 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, without deciding that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and need not be further considered. II. New and Material Evidence The Veteran seeks to reopen his previously denied claim of entitlement to service connection for adenocarcinoma of the prostate. A February 2003 rating decision denied service connection for adenocarcinoma of the prostate, which was confirmed in a June 2005 Board decision. The Veteran did not appeal the June 2005 Board decision. Thereafter, an April 2009 RO decision denied the Veteran's claim to reopen the claim of entitlement to service connection for adenocarcinoma of the prostate. Although the RO reopened and denied the claim on the merits in the September 2011 rating decision on appeal, the Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If the Board finds that no such evidence has been offered, that is where the analysis must end. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 8 Vet. App. 1 (1995). Unless the Chairman of the Board orders reconsideration, all Board decisions are final on the date stamped on the face of the decision. 38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.1100(a). The Veteran was notified of his appellate rights at the time of the June 2005 Board decision, but, as explained above, did not file an appeal specific to his claim. Therefore, the June 2005 Board decision is final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2012). In general, rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2008). The Veteran was notified of his appellate rights at the time of the April 2009 RO decision, but, as explained above, did not file an appeal specific to his claim. Therefore, the April 2009 RO decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). A claim for service connection may be reopened if new and material evidence is received. Manio v. Derwinski, 1 Vet. App. 140 (1991). The Veteran filed an application to reopen his claim in March 2011. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate a claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior 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) (2012). Only evidence presented since the last final denial on any basis will be considered, in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). With respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the claim. Evans v. Brown, 9 Vet. App. 273 (1996). The criteria for new and material evidence creates a low threshold for reopening. The phrase "raises a reasonable possibility of substantiating the claim" enables rather than precludes reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." In other words, it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would force the Veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA. Evidence added to the record since the time of the last final decision in April 2009 includes service personnel records showing that the Veteran was stationed on Nakhon Phanom Royal Thai Air Force Base from October 1967 to October 1968 as well as statements from the Veteran asserting that he drove into and out of the Air Force Base many times during his tour of duty for work, medical treatment, and recreation, asserting presumptive herbicide exposure. The Board finds that the Veteran's recent statements, combined with his service personnel records, are both new and material. That newly received evidence was not previously considered by agency decision makers, is not cumulative or redundant, relates to unestablished facts necessary to substantiate the Veteran's claim, and raises a reasonable possibility of substantiating that claim. 38 C.F.R. § 3.303 (2012). Specifically, the newly submitted evidence tends to show that the Veteran may have been directly exposed to herbicides in Thailand. Therefore, that new evidence supports a theory of service connection secondary to herbicide exposure, with proof of actual direct causation, which was not previously considered by the Board. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Moreover, that new evidence is presumed credible for the purpose of determining whether or not to reopen the claim. New evidence is sufficient to reopen a claim if it contributes to a more complete picture of the circumstances surrounding the origin or aggravation of a Veteran's disability, even where it may not convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Here, the new evidence submitted in support of the Veteran's claim relates to previously unestablished facts, which tend to show that his currently diagnosed adenocarcinoma of the prostate was caused or aggravated by actual in-service herbicide exposure. Therefore, the Board finds that new evidence, when presumed credible for the purpose of determining whether it is material, is material. Accordingly, the Veteran's claim is considered reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). III. Service Connection As discussed above, the Veteran contends that he currently has adenocarcinoma of the prostate due to exposure to herbicides in service. Specifically, he asserts he developed adenocarcinoma due to exposure to herbicides while stationed in Thailand from October 1967 to October 1968. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995); Hickson v. West, 12 Vet. App. 247 (1999); 38 C.F.R. § 3.303 (2012). Additionally, service connection may be established on a presumptive basis for a disability resulting from exposure to an herbicide agent. A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on 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 C.F.R. §§ 3.307(a)(6)(iii); VAOPGCPREC 7-93 (1993), 59 Fed. Reg. 4752 (1994). Those diseases include chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus, or adult-onset diabetes), Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and sub-acute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchi, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), ischemic heart disease, Parkinson's disease, and B cell leukemias. 38 C.F.R. § 3.309(e) (2012). While all Veterans who served in the Republic of Vietnam during the Vietnam era are presumed to have been exposed to an herbicide agent, VA has established a procedure for verifying exposure to herbicides in Thailand during the Vietnam era. VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes, as evidenced in a declassified Vietnam era Department of Defense document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those Veterans whose duties placed them on or near the perimeters of Thailand military bases. That allows for presumptive service connection of the diseases associated with herbicide exposure. VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C ("M21-1MR"). The majority of troops in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a Veteran served on one of those air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty (MOS), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts found or direct basis. However, that applies only during the Vietnam era, from February 28, 1961, to May 7, 1975. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.(q). Notwithstanding the provisions relating to presumptive service connection, a Veteran may establish service connection for a disability with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). Initially, the Board notes that the Veteran has a diagnosis of adenocarcinoma of the prostate. Also, service records, including service treatment records and personnel records, place the Veteran at Nakhon Phanom Royal Thai Air Force Base during the VA-designated timeframe for which herbicide exposure in Thailand may be presumed. Specifically, the records show that the Veteran served as a communications center supervisor and traffic analysis monitor while stationed at the Nakhon Phanom Royal Thai Air Force Base from October 1967 to October 1968. The Board recognizes that the Veteran's MOS is not one of the listed MOSs in the MR21-1MR that has been shown to have served on or near the air base perimeter. However, in statements, the Veteran reported that his living quarters were adjacent to the 1st Air Commando Squadron, which stored Agent Orange in 55-gallon drums between the living quarters. In addition, the Veteran's service treatment records reveal that he attended the dispensary at Nakhon Phanom Royal Thai Air Force Base in 1968, and he has stated that he would drive onto and off of the Air Force Base for work and recreation. The Board finds that this activity would place him in close proximity to the air base perimeter. In summary, the evidence of record shows that the Veteran served in Thailand during the period in which VA has acknowledged that Agent Orange was used near the air base perimeter at Nakhon Phanom Royal Thai Air Force Base. While the record does not clearly identify whether the Veteran was exposed to Agent Orange while stationed at Nakhon Phanom Royal Thai Air Force Base, the Board highlights that there is no basis in the record to question the Veteran's credibility regarding his statements. The statements by the Veteran suggest that he had contact with the base perimeter while entering and exiting the base on a fairly regular basis during his year there. The Veteran's statements as to his activities while stationed in Thailand are competent lay evidence of what the Veteran observed during his period of service in Thailand. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). Further, although communications center supervisor and traffic analysis monitor are not among the MOSs conceded to have been exposed to herbicides in Thailand, the Board finds the Veteran's testimony credible. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (holding that as a finder of fact, the Board, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. As there is no evidence of record that contradicts the Veteran's claim as to the type of activities performed during his service in Thailand, they must be presumed to be accurate. Any reasonable doubt regarding the accuracy of the Veteran's statements is resolved in favor of the Veteran. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's testimony, taken in conjunction with the information regarding herbicide use in Thailand, supports a finding that the Veteran was exposed to herbicides during service. As the Veteran's post-service medical records reflect diagnoses of prostate cancer, service connection is warranted for prostate cancer, as this disability is presumed to have been incurred during active duty service based on the Veteran's exposure to herbicides during service in Thailand. As such, service connection for adenocarcinoma of the prostate is warranted based upon exposure to herbicides during service. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence has been submitted to reopen the claim of entitlement to service connection for adenocarcinoma of the prostate. Service connection for adenocarcinoma of the prostate, due to exposure to herbicides, is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs