Citation Nr: 1756430 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 14-07 025 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for prostate cancer, to include as due to exposure to herbicide agents. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Janofsky, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1962 to August 1986. This matter comes before the Board of Veterans' Appeals (Board) from a January 2012 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge during a June 2017 video conference hearing. A transcript of that proceeding is associated with the claims file. FINDINGS OF FACT 1. In a February 2010 rating decision, the RO denied entitlement to service connection for prostate cancer. The Veteran did not file a notice of disagreement or submit new and material evidence within one year, and the decision became final. 2. The Veteran was diagnosed with prostate cancer; and it is at least as likely as not that he was exposed to herbicide agents during his active duty service in Thailand. CONCLUSIONS OF LAW 1. The February 2010 rating decision is final. 38 U.S.C. §§ 7104, 7105 (West 2012); 38 C.F.R. §§ 3.104, 3.156, 20.302 (2017). 2. The criteria for reopening the claim of entitlement to service connection for prostate cancer have been met. 38 U.S.C. §§ 5103A, 5108 (West 2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for prostate cancer have been met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Reopening Service Connection for Prostate Cancer In a February 2010 rating decision, the RO denied entitlement to service connection prostate cancer. The RO found that, although the Veteran had a prostate cancer diagnosis, this condition was not incurred in or caused by service. The RO explained that the Veteran's service treatment records were negative for any complaints of, treatment for, or diagnoses of prostate cancer. The RO also noted that the first prostate cancer diagnosis was in July 2006, almost twenty years after discharge. The Veteran did not file a notice of disagreement or submit new and material evidence within one year, and the rating decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302. In April 2011, he filed a new claim. The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). The initial question before the Board, therefore, is whether new and material evidence has been received, regardless of how the RO characterized the issue. 38 C.F.R. § 3.156(a) provides: A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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 substantiating the claim. Credibility must be presumed in petitions to reopen. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Newly submitted evidence may be material if it provides a more complete picture of the circumstances surrounding the origin of the Veteran's disability, even if it would not be enough to convince the Board to grant a claim. See Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). The Board finds that in this case, new and material evidence has been received to reopen the claim of entitlement to service connection for prostate cancer. Since the February 2010 rating decision, VA has obtained the Veteran's 2017 Board hearing testimony, which the Board must presume credible under Justus. The Veteran testified that although his official military occupational specialty (MOS) during his Thailand service at Korat Royal Thai Air Force (RTAF) base was in an administrative role, he also was assigned "augmentee" security duties on or near the base perimeter regularly, as needed. He explained that he was assigned such security duties in light of his MOS as an air policeman prior to his Thailand service, as well as his unit's security personnel shortage at Korat at that time. Moreover, since the February 2010 rating decision, the Veteran and his representative have submitted Korat RTAF base maps, as well as a document regarding the Squadron Augmentee Program at Korat from January 1967 through June 1968, which coincided in part with his Korat service. The Squadron Augmentee Program document describes a security personnel shortage at that time and the consequent need for security augmentees at Korat. That Board finds that the Veteran's Board hearing testimony, including references to these documents, provides a more complete picture of the circumstances surrounding his claimed in-service herbicide exposure. As the evidence discussed above was not previously submitted to agency decision makers and relates to unestablished facts necessary to substantiate the claim regarding the dispositive issue of herbicide exposure, the Board finds that the additional evidence is new and material to reopen the Veteran's claim for service connection for prostate cancer. See 38 C.F.R. § 3.156. Since the RO also adjudicated this claim on the merits, the Board will proceed. See January 2012 rating decision; January 2014 statement of the case. II. Service Connection for Prostate Cancer The Veteran claims that he was exposed to herbicide agents during his active duty service in Thailand and that, consequently, he is entitled to service connection for prostate cancer based on regulatory presumptions. See, e.g., June 2017 hearing testimony. The Board has thoroughly reviewed all of the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The points below focus on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. The regulations pertinent to this decision were provided to the Veteran in the January 2014 statement of the case. Since he has had adequate notice of the pertinent laws, they will not be repeated here in full. The Veteran primarily alleges that he was exposed to herbicide agents during his active duty service in Thailand. VA's Adjudication Procedures Manual requires special consideration of herbicide exposure on a factual basis for veterans whose duties placed them on or near the perimeters of Thai military bases during the Vietnam era, to include the Korat Royal Thai Air Force Base (Korat RTAF base or Korat). See M21-1, IV.ii.1.H.5.a. Specifically, those protocols direct that if a veteran served as an Air Force security policeman, security patrol dog handler, or member of the security police squadron, or was otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, herbicide exposure should be acknowledged. See id. at IV.ii.1.H.5.b. The Veteran was diagnosed with prostate cancer. See, e.g., July 2006 treatment records. The dispositive issue in this case is whether he was exposed to herbicide agents during active duty service. The Veteran contends in part that he was exposed to herbicides from his regular work duties on or near the Korat RTAF base perimeter. Specifically, in statements and Board hearing testimony, he asserted that although his official MOS was as an administrative specialist during his active duty in service in Thailand, in practice, he verbally or informally was assigned duties as a security "augmentee" on or near the base perimeter as needed. He explained that he was assigned such "on-call" duties at Korat in light of his MOS and skills as an air policeman prior to his Thailand service, and due to a security personnel shortage in his unit at Korat at that time. See, e.g., February 2014 substantive appeal; June 2017 hearing testimony. The Board finds that the Veteran's hearing testimony and other statements of record are very credible because they are supported by contemporaneous military personnel records. Specifically, military personnel records confirm his service at Korat RTAF base in Thailand with the unit 388th Svc. Sq. from approximately March 1967 to March 1968, with the official MOS's of administrative specialist and billeting clerk. His service personnel records (including his chronological listing of service and very positive performance evaluations) also corroborate his testimony about his MOS as an air policeman prior to his Thailand service from approximately December 1962 to March 1966. Moreover, a document regarding the Squadron Augmentee Program at Korat from January 1967 through June 1968, which coincided in part with his Korat service, corroborated his testimony regarding his unit's security police personnel shortage, and the consequent need for "augmentees" for the security force. Considering the Veteran's prior, official MOS as an air policeman and his credible Board testimony regarding his regular, unofficial security duties during his Thailand service, the weight of the evidence is at least in equipoise as to whether his duties frequently took him on or near the Korat RTAF base perimeter. Consequently, the Board finds that based on the particular circumstances of this case and in light of all of the supporting evidence, this Veteran was likely exposed to herbicide agents during his exemplary service in Thailand during the Vietnam era. As prostate cancer is a presumptive condition, no nexus opinion is needed. The Veteran's claim of entitlement to service connection for prostate cancer is granted. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.102, 3.307, 3.309(e). ORDER As new and material evidence has been received to reopen the claim of entitlement to service connection for prostate cancer, the claim is reopened. Entitlement to service connection for prostate cancer as due to exposure to herbicide agents is granted, subject to controlling regulations governing the payment of monetary awards. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs