Citation Nr: 1752550 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 13-31 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for prostate cancer. 2. Entitlement to service connection for a heart disability, to include under a diagnosis of atrial fibrillation with mild aortic valve stenosis. REPRESENTATION Veteran represented by: Washington Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD K. Thompson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from July 1967 to July 1971, with additional service in the Air Force Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In June 2016, a Board videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the record. The issue of entitlement to service connection for a heart disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In August 2007, the RO denied service connection for prostate cancer and the Veteran did not perfect an appeal. 2. The evidence submitted since the RO's August 2007 rating decision is not cumulative or redundant and raises a reasonable possibility of substantiating the underlying claim for service connection for prostate cancer. 3. The Veteran has a current diagnosis of prostate cancer. 4. The Veteran's duties as likely as not placed him near the perimeter of the Ubon Royal Thai Air Force base, and herbicide exposure may be presumed. CONCLUSIONS OF LAW 1. The August 2007 rating decision is final regarding the issue of service connection for prostate cancer. 38 U.S.C.A. § 7105(c) (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence has been received since the RO's August 2007 rating decision sufficient to reopen the Veteran's claim of service connection for a left shoulder disability. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for prostate cancer have been met. 38 U.S.C. §§ 1110, 1154, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations, VA has a duty to notify and assist the claimant in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran's claim has been considered with respect to VA's duty to notify and assist. Other than the matters addressed in the remand section, the outcome below is favorable. Thus, no conceivable prejudice to the Veteran could result from this adjudication. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). II. New and Material Evidence Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. 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). In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase "raises a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). 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). Service connection for prostate cancer was initially denied in an August 2007 rating decision. The Veteran did not file a notice of disagreement or VA Form 9 substantive appeal and, as a result, the rating decision is final. Pertinent evidence received since the August 2007 rating decision includes VA medical treatment records, lay statements from the Veteran, photographs of Ubon Air Force Base, and buddy statements. This evidence is presumed credible for the purpose of determining whether new and material evidence has been submitted. See Justus v. Principi, 3 Vet. App. 510 (1992). The Board finds that the evidence submitted since the August 2007 rating decision is new and material. Specifically, the Veteran's lay statements about the circumstances of his service and his photographs of his work area at Ubon Air Force Base indicate that the Veteran worked on or near the perimeter and therefore that herbicide agent exposure should be presumed. This evidence is new in that it was not previously considered by agency decisionmakers. It is also not cumulative or redundant of the evidence previously of record. Moreover, it raises a reasonable possibility of substantiating the claim. Accordingly, reopening of the claim of entitlement to service connection for prostate cancer is warranted. III. Service Connection To establish entitlement to service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or at least has since filing the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). If a veteran was exposed to an herbicide agent during active service and manifests prostate cancer to a compensable degree any time after such service, prostate cancer will be service connected 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. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). 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 "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 military occupational specialty (MOS), 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). When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that his prostate cancer should be service-connected on a presumptive basis as due to in-service exposure to herbicide agents. VA treatment records confirm the Veteran has been diagnosed with prostate cancer and that he underwent radical prostatectomy in January 2003. Accordingly, if the Veteran is found to have been exposed to an herbicide agent during military service, presumptive service connection is warranted for his prostate cancer. The Veteran's service personnel records show that he was stationed at Ubon Air Force Base from October 1968 to October 1969. His DD-214 reflects his MOS was an aircraft maintenance specialist. The Veteran's MOS is not one of those listed in the MR21-1MR that has shown to have served on or near the air base perimeter. Research undertaken by the RO has been inconclusive regarding the Veteran's exposure to herbicides while he was stationed at Ubon Air Force Base. A memorandum from the Joint Services Records Research Center coordinator stated that although the Veteran's service at Ubon Air Force Base was verified, there was no official documentation indicating that the Veteran was located near the base perimeter during his service in Thailand. At the June 2016 Board videoconference, the Veteran testified that when he was a crew chief for F-4 fighter aircraft in-service, he would conduct end of runway checks to inspect the planes. The Veteran stated that the end of runway checks were "as far out on the perimeter as possible to drive to" and that he spent a significant amount of time on the perimeter conducting end of runway checks without protective clothing. See June 2016 hearing testimony at 3-4. The Veteran is competent to report the circumstances of his service. 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). The Board also finds him credible in that regard. His statements placing him at the perimeter of Ubon Air Force Base are consistent with service personnel records showing that he was an aircraft maintenance specialist. See 38 U.S.C. § 1154(a). Additionally, his MOS is consistent with an occupational specialty that would conduct end of runway checks and inspections. Moreover, there is nothing in the record that would impugn the Veteran's credibility on the matter. Separately, the Veteran has submitted photographs showing the proximity of his work area to the perimeter fence at Ubon. Resolving doubt in the Veteran's favor, this evidence establishes on a facts-found basis that the Veteran was exposed to herbicides while serving at Ubon Air Force Base. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.(q). In sum, the Board has conceded the Veteran's exposure to herbicides during active service and the record confirms that the Veteran has been diagnosed with prostate cancer. Moreover, the Veteran provided two statements from his private nurse practitioner and VA treating physician opining that the Veteran's prostate cancer is more likely than not a result of his exposure to Agent Orange. Accordingly, entitlement to service connection for prostate cancer is warranted. ORDER New and material evidence has been received to reopen a claim for entitlement to service connection for prostate cancer; to that extent only, the appeal is granted. Service connection for prostate cancer is granted. REMAND The Veteran also contends that his heart disability is related to service, including his exposure to herbicide agents in service. The Veteran's VA treatment records reflect ongoing treatment for atrial fibrillation with mild aortic valve stenosis. Certain diseases are deemed associated with herbicide agent exposure under current VA law; the list of those diseases includes ischemic heart disease but does not include atrial fibrillation with aortic valve stenosis. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. The United States Court of Appeals for the Federal Circuit has held, however, that a claimant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, the fact that a veteran did not meet the requirements for service connection on a presumptive basis does not in and of itself preclude the establishment of service connection, as entitlement may alternatively be established on a direct basis. Because the Board has conceded that the Veteran as likely as not was exposed to herbicide agents in service, the Board will remand this issue in order to afford the Veteran a VA examination to address whether the Veteran's heart disability is related to service, including to in-service exposure to herbicide agents. The Board also notes that to date, the Veteran has not been afforded a VA examination in conjunction with this claim. Accordingly, an examination to secure a medical opinion as to the medical questions presented is necessary. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant and outstanding VA treatment records and associate them with the electronic claims file. 2. After completion of directive #1, schedule the Veteran for a VA examination to ascertain the nature and etiology of his heart disability. The claims file must be made available to the examiner for review. All indicated tests and studies must be performed, and a comprehensive history should be obtained. The examiner should provide a diagnosis for any current heart disability found. Based on the examination and review of the record, the examiner should then provide an opinion as to the following: Is it at least as likely as not (i.e., at least 50 percent probability) that the Veteran has ischemic heart disease? For any other diagnosed heart disability, is it at least as likely as not that such disability began during the Veteran's active service, or is otherwise related to service, including his presumed exposure to Agent Orange during service. The Board notes that it has conceded that the Veteran had service on the perimeter of Ubon Air Force Base and was exposed to herbicide agents. A complete rationale is requested for any opinion expressed. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion would be speculative. 3. After completing all actions set forth above and any further action needed as a consequence of the above development, readjudicate the claim on appeal. If the benefit on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate Supplemental Statement of the Case and allow the appropriate time for response. Then return the case to the Board for further appellate review. (CONTINUED ON NEXT PAGE) The Veteran 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. §§ 5109B, 7112 (2012). ______________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs