Citation Nr: 1802280 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-23 586 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for diabetes mellitus, type II (DM). 2. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for prostate cancer. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Moore, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from June 1955 to June 1959 and September 1965 to August 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In October 2017, the Veteran presented sworn during a video conference hearing in Cheyenne, Wyoming, which was chaired by the undersigned. A transcript of the hearing has been associated with the Veteran's claims file. The Veteran's claims for service connection for DM and prostate cancer were originally denied in an October 2005 rating decision. The RO determined there was no evidence of an in-service event or injury and no evidence of service in the Republic of Vietnam for presumptive service connection purposes. The Veteran did not file a notice of disagreement or submit new evidence within one year of the October 2005 rating decision. The Veteran attempted to reopen these claims in August 2011. A November 2011 rating decision declined to reopen the claims as he had not provided any new or material evidence of an in-service event or injury or herbicide exposure. The Veteran did not file a notice of disagreement or submit new evidence within one year of the November 2011 rating decision. The November 2011 rating decision became final and is the last prior denial of these claims. Since the November 2011 final decision, the Board finds that the Veteran submitted new and material evidence for the DM and prostate cancer claims. Specifically, he submitted new evidence showing that he served on the U.S.S. Valley Forge during its time in the inland waterways of Vietnam, presumptively exposing him to herbicides. The Board finds that the newly submitted evidence reasonably raises the possibility that the Veteran was exposed to herbicides in service. The Board will reopen both claims. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant the claim). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. In a rating decision dated in November 2011, the RO declined to reopen a previously denied claim for service connection for DM on the basis that there was no evidence of an in-service event or injury or herbicide exposure; the Veteran did not file a notice of disagreement or submit new evidence within one year of this denial. 2. Evidence submitted subsequent to the November 2011 rating decision bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and in connection with evidence previously assembled raises a reasonable possibility of substantiating the claim of entitlement to service connection for DM. 3. In a rating decision dated in November 2011, the RO declined to reopen a previously denied claim for service connection for prostate cancer on the basis that there was no evidence of an in-service event or injury or herbicide exposure; the Veteran did not file a notice of disagreement or submit new evidence within one year of this denial. 4. Evidence submitted subsequent to the November 2011 rating decision bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and in connection with evidence previously assembled raises a reasonable possibility of substantiating the claim of entitlement to service connection for prostate cancer. 5. The Veteran was exposed to an herbicide while serving aboard the U.S.S. Valley Forge in the inland waterways of Vietnam between October 1965 and January 1967. 6. The competent evidence establishes a current diagnosis of DM. 7. The competent evidence establishes a current diagnosis of prostate cancer. CONCLUSIONS OF LAW 1. The November 2011 rating decision declining to reopen the previously denied claim for service connection for DM is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 20.1103 (2017). 2. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for DM has been submitted. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The November 2011 rating decision declining to reopen the previously denied claim for service connection for prostate cancer is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 20.1103 (2017). 4. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for prostate cancer has been submitted. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 5. DM is presumed to have been incurred in service. 38 U.S.C. §§ 1110, 1131, 1116 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 6. Prostate cancer is presumed to have been incurred in service. 38 U.S.C. §§ 1110, 1131, 1116 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As the Veteran's claims are granted herein, any error related to the duties to notify and assist is moot. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran claims that he has DM and prostate cancer that are due to his service in the inland waterways of Vietnam. He, therefore, believes service connection is warranted. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). The Veteran served in the inland waterways of the Republic of Vietnam between October 1965 and January 1967 and is, therefore, presumed to have been exposed to herbicide agents. 38 U.S.C. § 1116(f) (2012); 38 C.F.R. § 3.307(a)(6)(iii) (2017) (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 that service."). The Board has reviewed the medical evidence and notes that the Veteran has been diagnosed with and treated for DM and prostate cancer. See, e.g., VA treatment record, March 2013. These are conditions that are considered presumptively service connected for veterans who have been exposed to herbicides. 38 U.S.C. § 1116 (2012); 38 C.F.R. § 3.307(a)(6)(iii) (2017). As the Veteran is presumed to have been exposed to herbicides in service and has current diagnoses of DM and prostate cancer, service connection is warranted for these claims. The claims of entitlement to service connection for DM and prostate cancer are granted. ORDER As new and material evidence sufficient to reopen the previously denied claim for service connection for DM has been received, the application to reopen is granted. As new and material evidence sufficient to reopen the previously denied claim for service connection for prostate cancer has been received, the application to reopen is granted. Entitlement to service connection for DM is granted. Entitlement to service connection for prostate cancer is granted. ____________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs