Citation Nr: 1332172 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 12-33 387 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for prostate cancer, to include as secondary to herbicide exposure. 2. Entitlement to service connection for prostate cancer, to include as secondary to herbicide exposure. 3. Entitlement to service connection for diabetes mellitus, to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran had active service from June 1955 to August 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran provided testimony before the undersigned Veterans Law Judge at a hearing in August 2013. A transcript of the hearing is in the claims folder. 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). The issue of entitlement to service connection for diabetes mellitus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In June 2009, the RO denied the issue of entitlement to service connection for prostate cancer. The Veteran did not initiate an appeal as to the decision. 2. The evidence associated with the claims folder subsequent to the RO's June 2009 decision is not cumulative or redundant of the evidence of record at the time of the last prior final denial, and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for prostate cancer. 3. The probative evidence of record indicates that the Veteran had no active service in the Republic of Vietnam during the Vietnam Era but was exposed to herbicides while on active duty at Air Force Bases in U-Tapao, Thailand. 4. The Veteran currently has prostate cancer. CONCLUSIONS OF LAW 1. The June 2009 RO rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2012). 2. Since the June 2009 RO rating decision, new and material evidence has been received with respect to the Veteran's claim of entitlement to service connection for prostate cancer. Therefore, the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The Veteran's prostate cancer is etiologically related to active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Considering the favorable outcome detailed below as to reopening and granting of the Veteran's claim for service connection for prostate cancer, VA's fulfillment of its duties to notify and assist need not be addressed at this time. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; Kent v. Nicholson, 20 Vet. App. 1 (2006). Claim to Reopen A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C.A. §§ 5108, 7103, 7104, 7105; 38 C.F.R. §§ 3.156, 20.1100 (2012). For claims received on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 sustaining the claim. 3 8 C.F.R. § 3.156(a). New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof. See Shade v. Shinseki, 24 Vet. App. 110, 120, (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. The only exception would be where evidence presented is inherently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the Veteran in developing the facts necessary for his claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C.A. § 5103A (West 2002) (eliminates the concept of a well-grounded claim). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). As noted above, the Veteran's claim for service connection of prostate cancer was last denied in June 2009 rating decision. The RO denied the claim on the grounds that evidence relating to a nexus between prostate cancer and service had not been presented. The Veteran did not appeal this determination and it is now final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. New and material evidence has been received. Evidence added to the record since the time of the last final decision includes statements from the Veteran asserting presumptive herbicide exposure based upon his presence in Thailand. Also of record is a Memorandum for Record regarding herbicide use in Thailand during the Vietnam era, which notes that Air Force Veterans who served on Royal Thai Air Force bases at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, near the air base perimeter anytime between February 28, 1961 and May 7, 1975, may have been exposed to herbicides. The Board finds that the Veteran's recent statement, combined with the information contained in the VA memorandum regarding herbicide use in Thailand, 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 the 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 RO. 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 prostate cancer 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 claims are considered reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). Claim for Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as malignant tumors, diabetes mellitus or hypertension, may be presumed to have been incurred or aggravated in service if manifest to a compensable degree within one year after discharge from service. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Veterans who, during active 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 to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307. If a Veteran was exposed to an herbicide agent during active military, naval or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(d) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes or adult-onset diabetes), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposis's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). On August 31, 2010, VA amended 38 C.F.R. § 3.309(e) to add hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease to the list of diseases associated with exposure to certain herbicide agents. The intended effect of this amendment is to establish presumptive service connection for these diseases based on herbicide exposure. This final rule was published in the Federal Register. 75 Fed. Reg. 53, 202 (August 31, 2010). For the purposes of §3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is generally considered an herbicide agent and will be so considered in this decision. 'Service in the Republic of Vietnam' includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a). The VA General Counsel has determined that 38 C.F.R. § 3.313(a) requires that an individual must have actually been present within the boundaries of the Republic. Specifically, the General Counsel has concluded that in order to establish qualifying service in Vietnam, a veteran must demonstrate actual duty or visitation in the Republic of Vietnam, and that service on a deep-water naval vessel in waters off the shore of the Republic of Vietnam, without proof of actual duty or visitation in the Republic of Vietnam, does not constitute service in the Republic of Vietnam. VAOPGCPREC 27-97. As was noted above, the Federal Circuit has upheld this determination. See Haas v. Peake, 525 F. 3d. 1168 (Fed. Cir. 2008). VA procedures for verifying exposure to herbicides in Thailand during the Vietnam Era are detailed in the VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C ('M21-1MR'). 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 the above-referenced '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. This allows for presumptive service connection of the diseases associated with herbicide exposure. 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 these 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 MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. However, this applies only during the Vietnam Era, from February 28, 1961, to May 7, 1975. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.(q). Notwithstanding the foregoing presumptive provisions, the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). See Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Thus, presumption is not the sole method for showing causation. In reviewing the evidence, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). 'Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.' Savage v. Gober, 10 Vet. App. 488, 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ('a legal concept determining whether testimony may be heard and considered') and credibility ('a factual determination going to the probative value of the evidence to be made after the evidence has been admitted'). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Without a disability, service connection cannot be granted. See Degmetich, 104 F. 3d at 1332; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.' Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-7; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). In evaluating a claim, the Board's duty is to assess the credibility and probative weight of the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Service personnel records reflect that the Veteran served at U-Tapao from March 1971 to March 1972. The Veteran urges that he has prostate cancer due to exposure to herbicides during his service in Thailand. The Veteran urges that his duties as an aircraft maintenance technician within close proximity to the base perimeter in Thailand exposed him to Agent Orange. Consistent with his service personnel records, he testified before the undersigned that he was at U-Tapao, Thailand in 1971. His duties were those of a flight line maintenance supervisor. He reported that he crossed the perimeter at least 25 times during his time in Thailand. He also testified that his office was "maybe 50 yards" from the perimeter and that he observed the spraying of weeks around the ramp area. The RO undertook to determine whether the Veteran's service in Thailand likely exposed him to herbicides. The RO contacted the Joint Services Records Research Center (JSRRC) and the JSRRC replied in May 2009 that it could not verify that the Veteran had ever been exposed to herbicides in Vietnam. In a June 2009 memorandum, the RO issued a formal finding on a lack of information required to verify Agent Orange exposure in Vietnam or Thailand. It cited to the steps undertaken to verify whether the Veteran was likely exposed to herbicide in service. It noted a VA Memorandum for the Record on the subject of herbicide use in Thailand during the Vietnam Era which does not reflect documentation of herbicide use that would have affected the Veteran. The conclusion was that they were unable to verify that the Veteran was exposed to Agent Orange while in Vietnam or Thailand. The Board has considered the Veteran's testimony and finds that the preponderance of the evidence does show that he was, based on his duties and his locations, exposed to herbicides while in Thailand. He served on one of the air bases where exposure was possible, and moreover, he describes duties that brought him in close proximity to the perimeter of the bases. These duties seem consistent with his MOS (military occupational specialty) and are not inconsistent with performance evaluations or other credible evidence. The Board finds the testimony credible. As such the Board acknowledges herbicide exposure on a facts-found basis. Thus, the Board finds that the Veteran was exposed to herbicides in service. Given the above, the Board concludes that the Veteran is entitled to presumptions based on herbicide exposure. See 38 C.F.R. §§ 3.307, 3.309. The record establishes that the Veteran currently has prostate cancer. The diagnosis appears in the record in 2006. As such, service connection for prostate cancer is granted as due to in-service herbicide exposure. ORDER New and material evidence has been received to reopen a claim for service connection for prostate cancer. Service connection for prostate cancer is granted. REMAND In a December 2011 rating decision, the RO denied entitlement to service connection for diabetes mellitus. In November 2012, the Veteran submitted a substantive appeal with the other issue on appeal and included the issue of entitlement to service connection for diabetes. The Board finds that his November 2012 statement is a notice of disagreement (NOD) regarding his denied diabetes claim. The October 2012 statement of the case (SOC) and January 2013 supplement SOC (SSOC) addressed the other issue on appeal, but did not specifically address the issue of entitlement to service connection for diabetes. The Court has held that the filing of an NOD initiates the appeal process, and the agency of original jurisdiction is required to issue a SOC. See Manlicon v. West, 12 Vet. App. 238 (1999); see also Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995). Thus, the Board must remand this issue for issuance of an SOC. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) Issue an SOC to the Veteran and his representative, addressing the issue of entitlement to service connection for diabetes. The Veteran and his representative must be advised of the time limit in which he may file a substantive appeal. Then, only if the appeal is timely perfected, should the issue be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs