Citation Nr: 1719445 Decision Date: 06/01/17 Archive Date: 06/14/17 DOCKET NO. 17-02 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for prostate cancer. 2. Whether there was clear and unmistakable error (CUE) in that part of a November 2013 rating decision that denied service connection for lung cancer. 3. Whether new and material evidence has been received to reopen a claim for service connection for lung cancer. REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD S.M. Kreitlow INTRODUCTION The Veteran had honorable active military service from November 1971 to November 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in November 2013, October 2014 and October 2016 by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board notes that the issues certified to the Board by the RO were two claims of CUE in the November 2013 rating decision as to the RO's denial of service connection for prostate cancer and lung cancer. However, upon a closer review of the record, the Board finds that there is no prior final decision with respect to the claim for service connection for prostate cancer as the Veteran submitted new and material evidence within one year of the rating decisions issued in November 2013 and October 2014 in which that claim was denied. Pursuant to 38 C.F.R. § 3.156(b), such submissions held open the appeal period and required the RO to readjudicate the claim. The RO last readjudicated the claim for service connection for prostate cancer in the October 2016 rating decision to which the Veteran submitted a timely Notice of Disagreement and a perfected appeal. Thus, the claim for service connection for prostate cancer is an original claim and the allegation of CUE is subsumed within that claim. However, the claim for CUE as to the denial of lung cancer is still for consideration. Moreover, with regard to the claim for service connection for lung cancer, as discussed in more detail below, the November 2013 rating decision is a final decision as to that claim and, therefore, the claim filed in January 2015 is a claim to reopen. Thus the issue on appeal has been characterized as shown above. The Board has a legal duty to consider the requirement of whether new and material evidence has been submitted regardless of whether the RO has done so. Barnett v. Brown, 8 Vet. App. 1, 4 (1995). 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. Resolving reasonable doubt in the Veteran's favor, his prostate cancer, diagnosed in November 2012, is related to his exposure to toxic chemicals other than herbicide agents such as Agent Orange as a result of his military occupational specialty (MOS) during his active military service. 2. In a November 2013 rating decision, the RO denied service connection for lung cancer because there was no evidence establishing factual exposure to herbicide agents during service at the Yuma Proving Ground, Arizona, as alleged. 3. The November 2013 rating decision was based on the correct facts and law as they were known and existed at that time. 4. The RO denied service connection for lung cancer in a November 2013 rating decision. The Veteran neither appealed that decision nor submitted new and material evidence within one year after that decision, and it is final. 5. None of the new evidence submitted subsequent to November 2013 in support of the Veteran's claim for service connection for lung cancer is material. CONCLUSION OF LAW 1. Prostate cancer was incurred in service. 38 U.S.C.A. §§ 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2016). 2. CUE has not been shown in the November 2013 rating decision. 38 U.S.C.A. §§ 5109A , 7105 (West 2014); 38 C.F.R. §§ 3.105 (a), 20.1103 (2016). 3. The November 2013 rating decision that denied service connection for lung cancer is final. 38 U.S.C.A. § 7105(b), (c) (West 2014); 38 C.F.R. § 3.160(d), 20.201, 20.302 (2016). 4. New and material evidence has not been received, and the Veteran's claim for service connection for lung cancer is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156(a) (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially the Board finds that, with respect to the claims discussed herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Neither the appellant nor his representative has argued otherwise. I. Service Connection for Prostate Cancer Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed.Cir.2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Initially the Board notes that there is no question as to a current disability as the medical evidence shows a diagnosis of adenocarcinoma of the prostate in a Prostate Biopsy Report dated November 5, 2012. Consequently, the only question the Board need answer is whether the Veteran's prostate cancer is related to his active military service. The Veteran's initial contention was that his prostate cancer is due to exposure to herbicide agents, such as Agent Orange, while serving at Yuma Proving Ground, Arizona in 1972. This claim was denied in the November 2013 rating decision on the basis that the evidence did not verify such exposure. Subsequently, in an October 2014 rating decision, the RO found that new and material evidence had been submitted, but confirmed and continued the prior denial. In a letter from the Veteran's attorney received in January 2015, the Veteran alleged for the first time exposure to herbicide agents at Fort McClellan, Alabama, and Aberdeen Proving Ground, Maryland. After appropriate development, in the October 2016 rating decision, the RO denied the Veteran's claim also finding no verification of exposure to herbicide agents at those two bases as well. However, at the Veteran's Board hearing in February 2017, the Veteran raised for the first time the allegation that his prostate cancer was due to general exposure to toxic chemicals while serving at Fort McClellan and Edgewood Arsenal on Aberdeen Proving Ground as a result of his MOS, which was Chemical Operations Apprentice. The Veteran's representative offered that a report from the Department of Commerce, National Technical Information Services regarding riots and riot control demonstrates that chemicals were used at Aberdeen Proving Ground and Fort McClellan during the time that the Veteran was there. As for the Veteran's claim that his prostate cancer is due to exposure to herbicide agents during service, the Board does not find there is probative and persuasive evidence of record to establish factual exposure to herbicide agents. The RO requested verification from the U.S. Army and Joint Services Records Research Center (JSRRC) for each allegation of exposure and the JSRRC was unable to verify that the Veteran was actually exposed to tactical herbicides or that generally tactical herbicides were sprayed, tested, transported, stored or used at any of the three bases where the Veteran was stationed. The Board acknowledges that the Department of Defense (DoD) list of herbicide usage outside of Vietnam lists Poole's Island at Aberdeen Proving Ground, Maryland as a site where Agent Orange was tested. However, this was done for only one week in July 1969 approximately three and one-half years prior to the Veteran being assigned to Aberdeen Proving Ground. Furthermore, the Veteran's military records clearly demonstrate he was assigned to Edgewood Arsenal, not Poole's Island. Poole's Island is actually an island off the coast of Maryland. The Veteran himself reported he was assigned to Edgewood Arsenal's "Technical Chemical Unit located in the middle of the base." He has not stated he was ever on Poole's Island nor is there any indication in his military records that he had reason to be on Poole's Island. Consequently, because the testing of Agent Orange was conducted years before the Veteran's service at Aberdeen Proving Ground and there is no evidence to show he was on Poole's Island during his service, the Board does not find this to be sufficient evidence to demonstrate the Veteran was factually exposed to Agent Orange during his service at Aberdeen Proving Ground. However, the Veteran's service records clearly demonstrate that he performed his Advance Individual Training (AIT) to be a Chemical Operations Apprentice at Fort McClellan from about March to April of 1972, was then assigned to Yuma Proving Grounds, Arizona as a Decontamination Equipment Operator (54B20) from about May 1972 to November 1972 and then was assigned to Edgewood Arsenal at Aberdeen Proving Ground, Maryland from about January 1973 until his discharge in November 1973 serving as a Chemical Operations Apprentice (54A10). See Veteran's DA 20 in his service personnel records. The Board takes judicial notice that the current information for MOS 54B, Chemical Operations Specialist, indicates that persons in this MOS operate, perform operator maintenance or supervise the use of NBC detection and decontamination equipment, smoke generators, and assist in the establishment, administration, training and application of NBC defense measures. Major duties for a 54B10 includes operating and performing operator maintenance on smoke generating equipment, NBC identification/detection and decontamination equipment, and performing NBC reconnaissance. Major duties of a 54B20 includes operating and performing operator maintenance on smoke generating equipment, leading smoke generating or fuel supply squads, supervising reconnaissance/decontamination operations, and serving as company NBC NCO. Earlier information regarding this MOS shows titles include Decontamination Equipment Operator, although a specific job description does not seem to be available. However, it would appear from its name to include similar major duties as the 54B10. In addition, persons with the MOS 54A, Chemical Operations Assistant, assist in technical and tactical operations of chemical units and handle and assist in the employment of chemical, biological and radiological weapons and munitions. In addition, although the Veteran has not submitted the Department of Commerce report referred to at the February 2017 Board hearing into the record, the Board was able to access it online at https://www.ncjrs.gov/pdffiles1/Digitization/ 44429NCJRS.pdf. A review of this report does indicate that, during the time the Veteran was at Aberdeen Proving Ground, tests were performed using chemicals such as tear gas and other warfare chemicals in determining their effect on riots and riot control. Moreover, the Board acknowledges that the Environmental Protection Agency (EPA) has designated the Aberdeen Proving Ground as a Superfund site and the Edgewood area in particular was added to the National Priorities List in February 1990. The EPA's Superfund web page for Aberdeen Proving Ground states that the Edgewood area was used for the "development and testing of chemical agent munitions .... From 1917 to the present, site activities have included conducting chemical research programs, manufacturing chemical agents, and testing, storage and disposal of toxic materials. Site activities contaminated soil, sediment, ground water and surface water with hazardous chemicals." In addition, the EPA has also designated Fort McClellan as a Superfund site although it was never added to the National Priorities List. Fort McClellan was closed in May 1999 but prior to its closing it was home to the U.S. Army Chemical School, which initially started in 1952 as the Chemical Corps School. In 2013, a bill was introduced into Congress aiming to establish a registry of persons who were exposed to chemicals during their military service at Fort McClellan, but this bill was never passed. VA has a web page in its Public Health section on Potential Exposure at Fort McClellan. It says that some members of the U.S. Army Chemical Corp School, Army Combat Development Command Chemical/Biological/ Radiological Agency, Army Military Police School and Women's Army Corps, among others, may have been exposed to several hazardous materials, including radioactive compounds, chemical warfare agents and airborne polychlorinated byphenyls (PCBs), but that exposure to these hazardous materials was likely at low levels. Each disabling condition shown by a veteran's service records, or for which he seeks a service connection must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based upon review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 C.F.R. § 3.303(a). Based on the above information, the Board finds that the Veteran's allegation of exposure to toxic chemicals in service is consistent with the places, types and circumstances of his service as his MOS clearly indicates he was in the Chemical Corp and he was stationed at multiple bases that are known to have stored, used and tested chemicals for biological, chemical and radiological warfare and are also known EPA Superfund sites as a result of those activities. Consequently, the Board will concede in-service exposure to toxic chemicals other than herbicide agents such as Agent Orange. As to whether the Veteran's current prostate cancer is related to such in-service exposure to toxic chemicals, after the February 2017 Board hearing, the Veteran submitted a statement from one of his private physicians in which it was noted the Veteran has been diagnosed to have adenocarcinoma of the prostate in November 2012 and he subsequently also developed bladder cancer. The physician stated that, given the fact the Veteran had two primary cancers at a relatively young age, in his opinion there is at least a 50 percent possibility that chemical or biologic exposure contributed to the Veteran's development of bladder and/or prostate cancer. Therefore, based upon this medical opinion, the Board finds the evidence is at least in equipoise as to whether the Veteran's prostate cancer is related to his exposure to toxic chemicals in service. Resolving reasonable doubt in the Veteran's favor, the Board grants service connection for prostate cancer as related to exposure to toxic chemicals during the Veteran's active military service. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. II. CUE Claim - Service Connection for Lung Cancer In a January 2015 letter submitted by his attorney, the Veteran contended there was CUE in the November 2013 rating decision's denial of service connection for lung cancer in that "not ALL evidence of record was considered by the rater. Evidence of Record includes 'all procurable and assembled date' pursuant to 38 C.F.R. § 3.102. there was both evidence of the claimant's service at Fort McClellan and his DD-214, and evidence readily available to the rater as Fort McClellan is on DOD's list of bases that stored and otherwise handled Agent Orange. Therefore, the rater made [CUE] in note following the law and the requirements of § 3.102, and failure to apply the law as required is not merely a difference of opinion." At the Veteran's February 2017 Board hearing, his representative submitted a different argument in support of his CUE claim, which is that the RO should have considered a report of Riots and Riot Control issued by the U.S. Department of Commerce, National Technical Information Services, which was made available in 1977, and which provides a 164-page abstract of chemicals used for tests during the period of 1964 to 1977. Thus it was contended that this report states that chemical agents were there at the Edgewood Arsenal, Aberdeen Proving Ground and ties directly into the Veteran's contentions that his cancer is due to exposure to chemicals during service and this was available during the first time that the decision was made in 2013. In July 2013, the Veteran filed a claim for service connection for lung cancer. The RO obtained the Veteran's service treatment records, service personnel records that were available, private treatment records, and VA treatment records. In addition, based upon the Veteran's allegations of exposure to Agent Orange at the Yuma Proving Ground, Arizona, the RO sought verification of such exposure with the JSRRC. In November 2013, the JSRRC responded that it was unable to document or verify that the Veteran was exposed to Agent Orange or other tactical herbicides at Yuma Proving Ground during the period of April to June of 1972. It further noted that base history does not document the spraying, testing, transporting, storage or usage of Agent Orange at Yuma Proving Ground during the reporting period. Consequently, the Veteran is seeking to reverse or amend the November 2013 rating decision's denial of service connection for lung cancer on those two grounds. A final RO decision generally may not be reversed or amended in the absence of CUE. 38 U.S.C.A. §§ 5108 , 5109A, 7105(c) (West 2002); 38 C.F.R. § 3.105 (a) (2013); Simmons v. Principi, 17 However. However. 104, 110-11 (2003). VA regulatory § 3.105(a) provides: Where evidence establishes [CUE], the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of [CUE] has the same effect as if the corrected decision had been made on the date of the reversed decision. In the Simmons decision, the United States Court of Appeals for Veterans Claims (Court) set forth the laws relating to CUE claims as follows: A CUE claim is a collateral attack on a final RO decision. See Crippen v. Brown, 9 However. However. 412, 418 (1996); see also Fugo v. Brown, 6 However. However. 40, 44 (1993). In Russell v. Principi, the Court of Appeals for Veterans Claims (Court) defined CUE as follows: Either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied....[CUE is] the sort of error which, had it not been made, would have manifestly changed the outcome...[, an error that is] undebatable,...[such that] reasonable minds could only conclude that the original decision was fatally flawed at the time it was made. Russell, 3 However. However. 310, 313-14 (1992) (en banc); see also Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir. 1999) (expressly adopting the "manifestly changed the outcome" language in Russell, supra), cert. denied, 528 U.S. 967, 120 S.Ct. 405, 145 L.Ed.2d 315 (1999). A determination that there was CUE must be based on the record and the law that existed at the time of the prior decision. Russell, 3 However. However. at 314.... [F]or there to be a valid claim of CUE, the claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated. Id. at 313 [&] ... Damrel v. Brown, 6 However. However. 242[, 246] (1994) [(appellant's argument that the RO misevaluated and misinterpreted the evidence available to it at the time is not the type of administrative error reversible under 38 C.F.R. § 3.105 (a))]. Simmons, 17 However. However. at 110-11 . "A party bringing a CUE challenge to a final RO decision bears the burden of proving that the decision was based on a clear and unmistakable error. This burden is not satisfied by the mere assertion that the decision contained CUE; instead the party must describe the alleged error 'with some degree of specificity' and must provide persuasive reasons 'as to why the result would have been manifestly different but for the alleged error.'" Andre v. Principi, 301 F.3d 1354, 1361 (2002); see also Crippen, 9 However. However. at 420. CUE assertions that fail to satisfy these pleading requirements must be dismissed without prejudice to refiling rather than be denied by the Board. Simmons, 17 However. However. at 114 . The Court has also held that "[e]ach wholly distinct and different CUE theory underlying a request for revision is a separate matter and, when attacking a prior RO decision, each must be presented to and adjudicated by the RO in the first instance and, if not, the Board lacks jurisdiction over the merits of the matter." Jarrell v. Nicholson, 20 However. However. 326, 333 (2006); see also Andre, 301 F.3d at 1361. The Board acknowledges that service personnel records associated with the claims file in April 2013 demonstrate the Veteran served at Fort McClellan, Alabama from approximately March to April of 1972 for his Advanced Individual Training (AIT), at Yuma Proving Ground, Arizona from approximately May 1972 to November 1972, and Edgewood Arsenal (which is part of Aberdeen Proving Ground), Maryland from January 1973 to his discharge in November 1973. However, the Veteran did not allege exposure to Agent Orange or other tactical herbicide agents at any other location than Yuma Proving Ground prior to January 2015. When service connection for a presumptive herbicide disease set forth in 38 C.F.R. § 3.309(e) is not based upon presumptive exposure to herbicide agents during service in the Republic of Vietnam or Korea set forth in § 3.307(a)(6) or Thailand (which VA has recognized certain service as being subject to exposure), the duty to assist requires the RO undertake efforts to develop whether there is a factual basis of exposure in other locations. Currently, such efforts include obtaining from the Veteran the approximate dates, location(s) and nature of the alleged exposure and then requesting verification from the JSRRC or other locations from within VA. See VA Adjudication Manual, M21-1, Ch. IV.ii.1.H.7.a. However, the M21-1 has been recently updated and the development steps modified. They likely were not all required back in 2013 at the time the Veteran's claim was initially being adjudicated except for the step to request JSRRC verification, which was undertaken. Thus, at the time of the November 2013 rating decision, the Veteran had only identified herbicide agent exposure at the Yuma Proving Ground in 1972 to the RO as where he believed he was exposed to Agent Orange and his claim was that it was due to his working on decontaminating equipment being returned from Vietnam. He made no allegation at that time of having any such exposure at either Fort McClellan or Edgewood Arsenal, Aberdeen Proving Ground. He did not make any such allegation until January 2015. Thus, even if his DD214 showed he had been at Fort McClellan, the RO had no duty to assist the Veteran in determining whether he was factually exposed to tactical herbicides at that base. More importantly, unlike the attorney set forth in his January 2015 letter, Fort McClellan is not on the DoD's list of other locations of herbicide usage outside of Vietnam. The Board has searched that list thoroughly and does not even find another site in Alabama mentioned much less Fort McClellan. The Board does acknowledge that Poole's Island, Aberdeen Proving Ground is on the DoD's list. However, this list demonstrates that the testing activity was conducted for a week in July 1969, which was over three years prior to the Veteran's assignment to that base. Moreover, the Veteran's service records show he was assigned to Edgewood Arsenal, not Poole's Island. He himself has stated that he was assigned to the Technical Chemical Unit at the Edgewood Arsenal which was "located in the middle of the base." Poole's Island is an actual island off the coast of Maryland. Consequently, the evidence fails to demonstrate the Veteran was present during the period when tactical herbicides were used on Poole's Island at Aberdeen Proving Ground and, moreover, he was ever assigned to the actual site where the use of tactical herbicides is known to have occurred. Consequently, the Veteran's allegation that the evidence that was procured or should have been procured by the RO in November 2013 was not considered by the rater is not prevailing because the RO did rely on all the procurable evidence in rendering its decision. It procured the Veteran's allegations of factual exposure to herbicide agents in service and then sought verification of that exposure with the JSRRC. Furthermore, as to the allegation made at the Board hearing in February 2017, the Board does not find it raises a claim of CUE as it goes to the RO's duty to assist in developing the Veteran's claim. Again, at the time of the November 2013 claim, the Veteran had only alleged exposure to Agent Orange while serving at the Yuma Proving Ground in Arizona during 1972. He did not contend exposure to herbicide agents elsewhere until January 2015. At his hearing, he made further allegations that his cancer is due to exposure to toxic chemicals in service as a result of his MOS, Chemical Operations Apprentice. The Riot and Riot Controls report presented at the hearing had not been presented to the RO previously, at least the Board did not find any indication of it in the record. This report is not a DoD report, but a Department of Commerce report. Just because it is a federal record does not mean that the RO would have had access to it or knowledge of it with respect to the Veteran's claim. Furthermore, having reviewed this report, the Board finds the RO most likely would not have had any reason to have knowledge of this report because the Veteran's claim was one for Agent Orange exposure and this report talks about riot control experiments. Agent Orange and other herbicide agents were used for tactical defoliation, not for riot control. Thus, this report has no bearing on the use of Agent Orange or other tactical herbicides. Since it was not until recently that the Veteran has raised the argument that his claim for lung cancer should be considered on the basis of his overall toxic chemical exposure as a result of his MOS, such allegation cannot be a basis for CUE in the prior decision as that was not a claim considered at that time. Finally, the Board finds that, even if the Veteran was able to show that the RO erred in finding that he was not exposed to herbicide agents during his active service, the underlying denial of the claim for service connection for lung cancer would still not be manifestly different because the evidence clearly demonstrates that the Veteran did not have lung cancer. The November 2013 rating decision did not specifically address the issue of a current disability, but solely considered the claim on the basis of whether there was exposure to Agent Orange in service. With regard to whether there is a current disability, private medical evidence of record shows that, in July 2013, the Veteran underwent surgical resection for a right upper lobe lung mass that was suspicious for malignancy. However, the Pathology Report from July 30, 2013, clearly demonstrates that the diagnosis of the lung right upper lobe lobectomy was "granulomatous inflammation with caseating granulomas." A follow-up August 8, 2013 Office Note from the Veteran's treating physician shows an impression of "status post recent thoracoscopic lobectomy negative for malignancy." (Emphasis added.) Likewise, an August 28, 2013 Surgical Oncology note indicates "+ granulomatous changes, no cancer." (Emphasis added.) A March 2015 VA Urology Clinic follow-up note shows the Veteran's history to include "found to have RUL lung mass - had robotic lobectomy RUL July 2013 with benign pathology." (Emphasis added.) The only indication in the medical record that the Veteran actually had lung cancer was his own reported history of such to his mental health care providers seen in his VA treatment records. Thus, there is no medical evidence to support a finding that the Veteran had lung cancer, the current disability for which he was seeking service connection. Consequently, the Board finds that there is no basis for finding CUE in the November 2013 rating decision's denial of service connection for lung cancer as the decision was based upon the facts and law known at that time. The Veteran's claims of CUE must, therefore, be denied. III. Claim to Reopen - Service Connection for Lung Cancer The Veteran claimed service connection for lung cancer in July 2013, which claim was denied by the RO in the November 2013 rating decision. Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a Notice of Disagreement with the decision. The decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(c). However, if new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b). Thus, finality will not attach to a rating decision where new and material evidence is received within the one-year appeal period. The Veteran did not indicate disagreement with the November 2013 rating decision within one year of its notice. Furthermore, with regard to the claim for service connection for lung cancer, the Veteran did not submit new and material evidence within the one year after notice of the November 2013 rating decision, unlike the claim for service connection for prostate cancer in relation to which the Veteran submitted additional medical evidence that was clearly relevant and material to the claim (and which the RO clearly found it to be so in an October 2014 rating decision). Therefore, the Board finds the November 2013 is final as to its decision denying service connection for lung cancer. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.156(b). VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a claimant. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). "New" evidence is defined as evidence not previously submitted to agency decision makers. "Material" evidence is 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. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claims sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. The evidence received subsequent to the last final decision is presumed credible for the purposes of reopening a claim unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Warren v. Brown, 6 Vet. App. 4 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Furthermore, when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The RO denied service connection for lung cancer in the November 2013 rating decision on the basis that there was no verification of factual exposure to Agent Orange in service at Yuma Proving Ground, Arizona. The Veteran submitted a claim to reopen for service connection for lung cancer via his attorney's letter in January 2015. In that letter, the Veteran alleged new sources of exposure to Agent Orange during service, to wit, at Fort McClellan and Aberdeen Proving Ground. As previously discussed, however, those allegations have not resulted in verified exposure to herbicide agents such as Agent Orange. Specifically, the Board finds that the allegation as to Fort McClellan being on the DoD list of herbicide usage outside of Vietnam is not accurate and, therefore, does not result in new, much less material, evidence. The fact that the Veteran was at Fort McClellan and Edgewood Arsenal, Aberdeen Proving Ground is not new evidence in and of itself as the service records showing such service were of record at the time of the November 2013 rating decision. However, the Veteran's written statements as to exposure to Agent Orange while serving at these bases are new. The Board, however, does not find these statements to be material because the Veteran is not competent to testify that what he sprayed was actually Agent Orange. He is competent to testify that there were drums with orange bands around them, but not that this meant there was Agent Orange in those drums. The Board notes that, even without reopening the Veteran's claim, the RO is required by the duty to assist to seek documentary evidence relating to the Veteran's contentions, which it did by seeking verification of the Veteran's claims of Agent Orange with the JSRRC. However, the JSRRC responded by stating it was unable to specifically verify the Veteran's alleged exposure to herbicides at either of these bases or to generally verify that tactical herbicides were sprayed, tested, transported, stored or used at either of these bases. Consequently, the new evidence of record consisting of the Veteran's statements since January 2015 and the JSRRC's responses to requests for verification fail to raise a reasonable possibility of establishing at least one aspect of the Veteran's claim, which is that he was exposed to herbicide agents during service. Furthermore, as submitted by the Veteran's attorney in his January 2015 letter, the Board acknowledges that the DoD list shows testing was done with Agent Orange for a week in July 1969 on Poole's Island at Aberdeen Proving Ground in Maryland. However, the Board does not find this evidence to be material. The Veteran was not even in service at the time of the testing in 1969 and thus could not have been exposed at the time of the testing. Moreover, although stationed at Aberdeen Proving Ground in 1973, he was assigned to Edgewood Arsenal at the "Technical Chemical Unit located in the middle of the base." There is no indication beyond the attorney's mere allegation that the Veteran was ever on Poole's Island during his service. The Veteran himself has said he was at Edgewood Arsenal in the "middle of the base." Consequently, the Board does not find this evidence to be material reopen the Veteran's claim for service connection for lung cancer. Finally, as for the allegation raised at the February 2017 Board hearing that the Veteran's lung cancer is due to exposure to toxic chemicals in service, the Board acknowledges its finding in this decision conceding that the Veteran was exposed to toxic chemicals during his active military service. However, for purposes of opening his claim for service connection for lung cancer, the Board does not find such concession of in-service exposure material to reopen the Veteran's claim because it still fails to raise a reasonable possibility of substantiating the claim because the evidence of record still fails to demonstrate the Veteran, in fact, has or has had lung cancer. Although not specifically considered by the RO, the evidence of record at the time of the November 2013 demonstrated that the Veteran did not have lung cancer. As discussed above, the evidence from July 2013 shows that pathology on the resected lung mass determined that it was benign granulomatous inflammation with caseating granulomas. There are post-procedures follow-up notes indicating that this mass was "negative for malignancy" and "benign," and that there was "no cancer." Subsequent treatment records continue to show no development for lung cancer. See e.g., March 2, 2015 Urology Clinic Note and September 16, 2016 Addendum (showing treatment records uploaded from private medical care provider, Upstate Lung, demonstrate problem list does not include a diagnosis of lung cancer, only prostate cancer and bladder cancer). Therefore, the Board's concession of an in-service event that may cause lung cancer is essentially moot because there is no evidence of a current disability upon which to base a grant of service connection. Consequently, the Board finds that new and material evidence has not been received to reopen the Veteran's claim for service connection for lung cancer. Therefore, the Veteran's claim to reopen must be denied. The Board has considered the doctrine of reasonable doubt to the extent available. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for prostate cancer is granted. There was no CUE in that part of a November 2013 rating decision that denied service connection for lung cancer. New and material evidence has not been received to reopen a claim for service connection for lung cancer. ____________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs