Citation Nr: 1342250 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 11-30 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE 1. Whether new and material evidence has been received to reopen a claim for service connection for residuals of prostate cancer. 2. Entitlement to service connection for residuals of prostate cancer. REPRESENTATION Appellant represented by: Ashlee B. Crouch, Attorney-at-Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Zobrist, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony during a Board hearing in March 2013. The Board notes that it has reviewed both the Veteran's physical and electronic claims files to ensure that the complete record is considered. FINDINGS OF FACT 1. A December 2005 rating decision denied a claim of service connection for residuals of prostate; no notice of disagreement or new and material evidence was submitted within one year of notice of the decision. 2. Certain evidence received since the December 2005 rating decision relates to an unestablished fact that is necessary to substantiate the claim of service connection for residuals of prostate cancer and raises a reasonable possibility of substantiating said claim. 3. While transferring to a new duty assignment aboard the USS Oxford (AGTR 1), the Veteran had service in the Republic of Vietnam and herbicide exposure is presumed. 4. The Veteran is currently diagnosed with residuals of prostate cancer. CONCLUSIONS OF LAW 1. The December 2005 rating decision, which denied a claim of service connection for residuals of prostate cancer, is final. 38 U.S.C.A. § 7105(c) (West 2002). 2. New and material evidence has been received to reopen the Veteran's claim for service connection for residuals of prostate cancer. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156, 20.302 (2013). 3. The criteria for service connection for residuals of prostate cancer have been met. 38 U.S.C.A. §§ 1110, 1111, 1116, 1154(a), 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks to reopen his claim for residuals of prostate cancer. According to the procedural history, the RO originally denied the claim of service connection for residuals of prostate cancer in December 2005 on the basis that there was no evidence that he served in the Republic of Vietnam during the Vietnam era. The Board first finds that a timely notice of disagreement was not received to initiate an appeal from that determination. Although the Veteran sent a VA Form 21-4138 in November 2006 within one year of notice of the December 2005 denial, he did not express a desire for appellate review. See 38 C.F.R. § 20.201. He merely requested that the RO reconsider the decision. The Board finds that the November 2006 communication does not meet the regulatory definition of a notice of disagreement. Moreover, new and material evidence was not received within one year. Accordingly, the December 2005 decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.156(a). The RO did view the November 2006 VA Form 21-4138 as a request to reopen the claim. In an April 2009 rating decision, his claim was reopened, but denied on the merits. The Board finds that a timely notice of disagreement was not received to initiate an appeal from the April 2009 denial. In a VA Form 21-4138 received in April 2010, the Veteran again did not express a desire for appellate review. He again requested RO reconsideration. For the same reasons set forth above, the Board finds that the April 2010 communication did not meet the regulatory definition of a notice of disagreement. However, attached to the April 2010 communication were several pages of Internet printouts dealing with the Vietnam War campaigns of the USS Oxford. Although not entirely clear, it is arguable that these items of new evidence were also material in that they went to the question of whether the Veteran may have actually been in Vietnam. This was the underlying reason for the prior denial in that there was no persuasive evidence of Vietnam service to raise the presumption of herbicide exposure in connection with the prostate cancer claim. This evidence was received on April 8, 2010, which was within one year of the April 24, 2009, notice of the April 2009 denial. Under 38 C.F.R. § 3.156 new and material evidence received prior to expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, this new and material evidence was not considered. The Board therefore finds that the April 2009 rating decision did not become final. See Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). As a result, the most recent final denial is the December 2005 rating decision. Although the RO, in an August 2010 rating decision, reopened the Veteran's claim for residuals of prostate cancer (and denied it on the merits), the question of whether new and material evidence has been received to reopen such claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it de novo. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). If the Board finds that no such evidence has been received, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Id. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). 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 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). The prior denial of the Veteran's claim was based on a lack of persuasive evidence showing service on land in the Republic of Vietnam during the Vietnam Era. The record since December 2005 now includes a lay statement from a fellow servicemember, R. D., stating that they were transferred together from the Philippines to the USS Oxford and waited on land in Saigon for approximately 12 days for transportation to the ship. The Veteran also provided photographs taken during service of him and R. D. together in the Philippines, on a landing strip stated to be in Saigon, and on board the USS Oxford. Under the standard set forth by the Court in Shade, the Board finds that the lay statement and photographs along with the Veteran's testimony constitute new and material evidence. The claim is reopened. The Board now turns to a discussion of the reopened claim on the merits. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. For purposes of establishing service connection for a disability resulting from exposure to a 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 service. 38 U.S.C.A. § 1116(f). Exposure to herbicides is presumptively associated with certain specific disabilities and diseases listed at 38 C.F.R. § 3.309(e), including prostate cancer should they have become manifest to a degree of 10 percent or more at any time after service (with an exception not applicable to this case). 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(ii). For purposes of applying the presumption of exposure to herbicides under 38 C.F.R. § 3.307(a)(6)(iii), "service in the Republic of Vietnam" means that a veteran must have been present within the land borders of Vietnam to obtain the benefit of the presumption of herbicide exposure. See Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008). The record reflects the Veteran had service aboard the USS Oxford in the official waters of Vietnam. His service personnel records do not actually document service on the landmass or the inland waters of Vietnam. Nevertheless, the Veteran himself does not indicate such was the case. Rather, he has testified, and supported with a "buddy statement" and photographs, that his transfer from service in the Philippines to service on the USS Oxford including waiting approximately 12 days on land in Vietnam, in Saigon, for transportation to the USS Oxford. The Veteran's testimony is further supported by his service personnel records, which indicate that his transfer was effective December 1, 1966, but that he did not report for duty on the USS Oxford until December 18, 1966. Furthermore, the USS Oxford appears on a Veterans Benefits Administration's list of Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents as "conduct[ing] numerous month-long deployments along the Vietnam coast collecting data, with evidence that crewmembers went ashore, between 1965 and 1969." Http:// vbaw.vba.va.gov/bl/21/rating/VENavyShip.htm (updated July 9, 2013). Further, such events are within the capability of a lay person to observe, and the circumstances in which he indicated he was on land in Vietnam appear consistent with the circumstances of his service. Thus, the Board finds that the Veteran's testimony on these matters is credible, plausible, and probative evidence in support of his claim. As a final matter, the Board notes that the record amply demonstrates that the Veteran has received treatment for prostate cancer, which is listed in 38 C.F.R. § 3.309(e) as a disease presumptively associated with herbicide exposure, and from which he experiences residual disability. See, e.g., November 2010 letter from J. W., M.D. Therefore, resolving the benefit of the doubt in favor of the Veteran, residuals of prostate cancer are presumed to result from exposure to herbicides in service and, as such, service connection is warranted. 38 U.S.C.A. § 1116(f); 38 C.F.R. §§ 3.307, 3.309(e); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In closing, there is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran is being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). By letter dated in April 2010, the Veteran was furnished notice of the manner of assigning a disability evaluation and an effective date. He will have the opportunity to initiate an appeal from these "downstream" issues if he disagrees with the determination, which will be made by the RO, giving effect to the Board's grant of service connection for residuals of prostate cancer. ORDER New and material evidence has been received to reopen the claim of service connection for residuals of prostate cancer. Entitlement to service connection for residuals of prostate cancer is warranted. The appeal is granted. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs