Citation Nr: 1746965 Decision Date: 10/20/17 Archive Date: 10/31/17 DOCKET NO. 16-26 914 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hip arthritis. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for prostate cancer. 3. Entitlement to service connection for prostate cancer. 4. Entitlement to service connection for multiple myeloma. 5. Entitlement to service connection for respiratory cancer. REPRESENTATION Appellant represented by: Jerrold A. Sulcove, Attorney at Law ATTORNEY FOR THE BOARD D. Chad Johnson, Associate Counsel INTRODUCTION The Veteran had active service from July 1962 to October 1966. These matters come to the Board of Veterans' Appeals (Board) from September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran previously requested a Central Office hearing before the Board in Washington, DC; however, this request was subsequently withdrawn. 38 C.F.R. § 20.702(e) (2016). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. A January 2008 RO decision denied the Veteran's claim of entitlement to service connection for bilateral hip arthritis. The Veteran did not appeal that decision or submit new and material evidence within the one-year appeal period. 2. Evidence received since the January 2008 RO decision is either previously of record, cumulative or redundant of evidence already of record, or does not relate to a previously unestablished fact necessary to substantiate the claim of entitlement to service connection for bilateral hip arthritis, and therefore, does not raise a reasonable possibility of substantiating the claim. 3. An August 2008 RO decision denied reopening of the Veteran's claim of entitlement to service connection for prostate cancer. The Veteran did not appeal that decision or submit new and material evidence within the one-year appeal period. 4. Evidence received since the August 2008 RO decision that was not previously of record and not cumulative or redundant of evidence already of record, relates to a previously unestablished fact necessary to substantiate the Veteran's claim, and raises a reasonable possibility of substantiating the claim. 5. The Veteran's prostate cancer is presumptively related to his presumed herbicide exposure during his active service aboard the USS Comstock. 6. The Veteran has not been diagnosed with multiple myeloma at any time during the pendency of the appeal. 5. The Veteran has not been diagnosed with respiratory cancer at any time during the pendency of the appeal. CONCLUSIONS OF LAW 1. The January 2008 RO decision denying entitlement to service connection for bilateral hip arthritis is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2016). 2. New and material evidence sufficient to reopen a claim of entitlement to service connection for bilateral hip arthritis has not been added to the record. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2016). 3. The August 2008 RO decision denying entitlement to service connection for prostate cancer is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2016). 4. New and material evidence sufficient to reopen a claim of entitlement to service connection for prostate cancer has been added to the record. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2016). 5. The criteria for service connection for prostate cancer have been met. 38 U.S.C.A. §§ 1110, 1112, 1116, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). 6. The criteria for service connection for multiple myeloma have not been met for any period on appeal. 38 U.S.C.A. §§ 1110, 1112, 1116, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 7. The criteria for service connection for respiratory cancer have not been met for any period on appeal. 38 U.S.C.A. §§ 1110, 1112, 1116, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. New and Material Evidence - Generally Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105(c) (West 2014). However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108 (West 2014). New evidence is defined as existing evidence not previously submitted to agency decisionmakers, while material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a) (2016). 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. Id. 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 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also 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. Id. at 118. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). II.A. New and Material Evidence - Bilateral Hip Arthritis The Veteran's claim of entitlement to service connection for bilateral hip arthritis was previously denied in a January 2008 RO decision because the evidence did not show a current disability of bilateral hip arthritis. Thereafter, the Veteran did not file a timely appeal or submit any new and material evidence within the one-year appeal period; therefore, the January 2008 RO decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103 (2016). Since the prior final January 2008 RO decision, evidence added to the record includes VA treatment records, private treatment records, and lay statements of the Veteran. While such evidence is new, in that it was not of record at the time of the previous January 2008 RO decision, it is not material because it does not relate to an unestablished fact necessary to substantiate the claim, namely that the Veteran has a current disability of bilateral hip arthritis which had onset during active service or is otherwise presumptively or etiologically related to active service. 38 C.F.R. § 3.156(a). Given that the evidence submitted is not both new and material, reopening of the Veteran's claim of entitlement to service connection for bilateral hip arthritis is not warranted. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. II.B. New and Material Evidence - Prostate Cancer The Veteran's claim of entitlement to service connection for prostate cancer was previously denied in an August 2008 RO decision which declined to reopen the Veteran's previously denied claim due to a lack of new and material evidence. The Veteran did not file a timely appeal or submit any new and material evidence within the one-year appeal period; therefore, the August 2008 RO decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Since the prior final August 2008 RO decision, evidence added to the record includes VA treatment records and private treatment records which document the Veteran's previous diagnosis of prostate cancer with ongoing residuals and related treatment. Even more significantly, additional evidence added to the record since the prior final denial includes an updated VA list of Navy and Coast Guard ships associated with service in Vietnam and exposure to herbicide agents that documents qualifying service by the USS Comstock, upon which the Veteran is documented to have served by personnel records within the claims file. This particular piece of evidence is new and material in that it was not of record at the time of the prior final decision, and it relates to a material element of the Veteran's claim of entitlement to presumptive service connection for prostate cancer due to herbicide exposure. As the information submitted since the last final decision constitutes new and material evidence, the claim of entitlement to service connection for prostate cancer must be reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. III. Service Connection - Generally Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016). "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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted on a presumptive basis for certain specified diseases (including multiple myeloma, prostate cancer, and respiratory cancers) as due to herbicide exposure, provided the disease manifests to a compensable degree within a specified period in 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. 38 U.S.C.A. § 1116(a) (West 2014); 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e) (2016). "Service in the Republic of Vietnam" includes service in the waters off shore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). A veteran must actually set foot within the land borders of Vietnam, to include the contiguous waterways, in order to be entitled to the statutory presumptions for disabilities claimed as a result of exposure to herbicides. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). All Veterans who served aboard certain ships that operated primarily or exclusively on Vietnam's inland waterways are eligible for the presumption of Agent Orange exposure because their primary service was on the inland waterways of Vietnam. See Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents, available at https://www.benefits.va.gov/compensation/docs/shiplist.docx (last visited October 17, 2017). The Court of Appeals for Veterans Claims (Court) has held that Congress specifically limited entitlement to service connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). III.A. Service Connection - Prostate Cancer As explained above, the Board has reopened the Veteran's claim of entitlement to service connection for prostate cancer, which he has asserted is related to exposure to herbicide agents during active service. Moreover, post-service VA and private treatment records document the Veteran's diagnosis of prostate cancer with ongoing residuals and treatment. While service treatment records do not document any complaints, treatment, or diagnosis of prostate cancer, or any direct exposure to herbicide agents during active service, the Veteran's service personnel records clearly document his service aboard the USS Comstock. Notably, VA's list of Navy and Coast Guard ships associated with service in Vietnam and exposure to herbicide agents documents that the primary service of the USS Comstock was on the inland waterways of Vietnam; therefore, all Veterans who served aboard it are eligible for the presumption of Agent Orange exposure. See Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents. As such, the Board finds that the Veteran's documented service aboard the USS Comstock qualifies as service in the Republic of Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). Moreover, as the Veteran's prostate cancer is presumptively linked to his presumed herbicide exposure, service connection for prostate cancer is warranted and the claim is granted. 38 U.S.C.A. § 1116(a); 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). III.B. Service Connection - Multiple Myeloma, Respiratory Cancer The Veteran also claims entitlement to service connection for multiple myeloma and respiratory cancer. Significantly, although multiple myeloma and respiratory cancer are included on the list of diseases presumptively associated with exposure to herbicide agents, there is no probative evidence that the Veteran has been diagnosed with multiple myeloma and respiratory cancer for any period on appeal. See Brammer, 3 Vet. App. at 225; see also McClain, 21 Vet. App. at 321. Although the Veteran's lay statements are competent insofar as they report observable symptoms, see Layno v. Brown, 6 Vet. App. 465, 469 (1994); to the extent that the Veteran asserts that he has multiple myeloma and respiratory cancer which are related to active service or his presumed exposure to herbicide agents, such statements are less probative, as the Veteran lacks the medical expertise to diagnose a complex condition or to render a nexus opinion relating such conditions to active service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As there is no probative evidence of record to support the Veteran's claims of entitlement to service connection for multiple myeloma and respiratory cancer, the preponderance of the evidence is against the claims, there is no reasonable doubt to be resolved, and the claims must be denied. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence has not been received; therefore, the claim to reopen a claim of entitlement to service connection for bilateral hip arthritis is denied. New and material evidence has been received; therefore, the claim to reopen a claim of entitlement to service connection for prostate cancer is granted. Service connection for prostate cancer is granted. Service connection for multiple myeloma is denied. Service connection for respiratory cancer is denied. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs