Citation Nr: 18146953 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 15-10 478A DATE: November 2, 2018 ORDER New and material evidence having been received, the previously denied claim for service connection for prostate cancer is reopened. New and material evidence having been received, the previously denied claim for service connection for erectile dysfunction, to include as secondary to prostate cancer, is reopened. Entitlement to service connection for prostate cancer, to include as due to herbicide exposure, is granted. REMANDED Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected prostate cancer, is remanded. FINDINGS OF FACT 1. In a January 2010 rating decision, the RO denied service connection for prostate cancer and erectile dysfunction. The Veteran was notified of that decision and of his appellate rights, but he did not appeal or submit new and material evidence within the one-year period thereafter. 2. The evidence received since the January 2010 rating decision relates to unestablished facts necessary to substantiate the claims for service connection for prostate cancer and for erectile dysfunction secondary to prostate cancer. 3. The evidence is at least in equipoise to show that the Veteran was exposed to herbicides while serving at the U-Tapao Royal Thai Air Force Base in Thailand. 4. The Veteran was diagnosed with prostate cancer during his lifetime that had manifested to a compensable degree, and there is no evidence to rebut the presumption that the disorder was related to his herbicide exposure during active service. CONCLUSIONS OF LAW 1. The January 2010 rating decision that denied the Veteran’s claims for service connection for prostate cancer and erectile dysfunction is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. The evidence received since the January 2010 rating decision is new and material, and the claims for service connection for prostate cancer and erectile dysfunction are reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. Resolving all reasonable doubt in favor of the Veteran, prostate cancer is presumed to have been incurred in active service. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1960 to March 1981. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified at a hearing before the undersigned Veterans Law Judge in June 2018. A transcript of that proceeding is associated with the record. Neither the Veteran nor his representative has raised any issues with aspects of 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 a duty to assist argument). New and Material Evidence In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that 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, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist. Id. at 118. The Veteran’s claims for service connection for prostate cancer and erectile dysfunction were previously considered and denied in a January 2010 rating decision. The RO specifically denied the claims because there was no evidence that the conditions occurred in or were caused by service. The RO noted that service treatment records did not show any complaints of or treatment for prostate cancer or erectile dysfunction. The Veteran was notified of the January 2010 rating decision and of his appellate rights; however, he did not file an appeal. In general, rating decisions that are not timely appealed are final. See 38 U.S.C § 7105; 38 C.F.R. § 20.1103. There was also no new and material evidence received within one year of the issuance of the decision. Therefore, the January 2010 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b), 20.200, 20.201, 20.302, 20.1103. The evidence received since the January 2010 rating decision includes evidence that is both new and material to the claims. Specifically, the Veteran submitted a statement indicating that he had been exposed to herbicides during his service at the U-Tapao Royal Thai Air Force Base in Thailand. This evidence relates to a previously unestablished fact necessary to substantiate the claims. Thus, the Board finds that the evidence is both new and material, and the claims for service connection for prostate cancer and erectile dysfunction, are reopened. See 38 C.F.R. § 3.156 (a). Service Connection Service connection may be granted for a disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In addition, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that such veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iii). VA regulations further provide that, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307 are also satisfied. 38 C.F.R. § 3.309 (e). To warrant service connection based on herbicide exposure, prostate cancer must have manifested to a degree of at least 10 percent at any time after service. 38 C.F.R. §§ 3.307 (a)(6)(ii), 3.309(e). VA has determined that special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of certain Thailand military bases. As such, herbicide exposure should be conceded on a facts found or direct basis if a veteran served in the Air Force in Thailand during the Vietnam era at one of the listed bases, including the U-Tapao Royal Thai Air Force Base, as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty, performance evaluations, or other credible evidence. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran has contended that he developed prostate cancer as a result of herbicide exposure during service while stationed at the U-Tapao Royal Thai Air Force Base. The Veteran has also reported that he had service in Okinawa, Japan, where he may have been exposed to herbicides. June 2011 private treatment records from Dr. M.H. (initials used to protect privacy) noted that the Veteran underwent a radical prostatectomy for stage TII B prostate cancer in 2002. Thus, the dispositive issue is whether the Veteran was exposed to herbicides during his military service. The Veteran’s service personnel records reflect that, from August 1972 to July 1973, while stationed at U-Tapao, he served as a Master Sergeant Airman and responsible for supervision of the entire manning spectrum. The Veteran was responsible for coordinating manning actions of different Major Commands, assuring squadrons were properly notified of incoming gains, and providing timely and accurate updates of duty assignments into the personnel data system. Although the Veteran’s military occupational specialty does not establish exposure to herbicides, the Veteran has consistently and competently reported that he routinely was near the perimeter of the base. See Layno v. Brown, 6 Vet. App. at 469; 38 C.F.R. § 3.159 (a)(2). In a December 2012 statement, the Veteran reported that he used to ride his bicycle along the perimeter road at least twice a week. During the June 2018 hearing, the Veteran also reported that his barracks were located near the perimeter fence and that he came into contact with the perimeter when traveling to and from work. The Board finds no reason to doubt the credibility of the Veteran’s statements. In this regard, the Veteran’s reported duties are consistent with the circumstances of his service, and there is nothing in the record that contradicts his statements that he performed duties near the perimeter of the air force base. The Board acknowledges that, in a September 2011 Joint Services Records Research Center (JSRRC) memorandum, the JSSRC coordinator found no evidence that indicated that the Veteran was exposed to herbicides. The rationale referenced the Veteran’s military occupational specialty, noting that it would not put him near the base perimeter. It was also noted that the Veteran did not provide the approximate dates or nature of his exposure. However, as was noted in the Veteran’s hearing testimony, he does not believe that his occupational duties placed him in contact with the base perimeter, but other recreational activities that did. Thus, the September 2011 memorandum has limited probative value. Similarly, in an April 2015 JSRRC memorandum, the coordinator noted that a response had not been received from the Veteran and that herbicide exposure could not be conceded. However, as previously noted, the Veteran provided testimony during the June 2018 hearing regarding the nature and extent of his contact with the base perimeter. Thus, the April 2015 JSRRC memorandum also has limited probative value. Based on the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran was exposed to herbicides while stationed at the U-Tapao Air Base in Thailand. Accordingly, resolving all reasonable doubt in favor of the Veteran, service connection for prostate cancer on a presumptive basis is warranted. 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). As the benefit sought on appeal has been granted in full, there is no need to address whether the Veteran was exposed to herbicides as a result of his reported service in Okinawa, Japan. REASONS FOR REMAND The Veteran has contended that his erectile dysfunction developed as a result of his prostate cancer. His service treatment records do not document any complaints, treatment, or diagnosis erectile dysfunction; however, the Board has granted service connection for prostate cancer in the decision above. Private medical records also document the Veteran’s diagnosis of erectile dysfunction, but there is no medical evidence of record which shows that his erectile dysfunction resulted from his prostate cancer. He has not yet been provided with a VA examination in connection with the claim. Accordingly, a remand is necessary to obtain a medical opinion which addresses the nature and etiology of the Veteran’s erectile dysfunction. Moreover, during the June 2018 hearing, the Veteran reported that he received treatment for his prostate from Dr. K (initials used to protect privacy). It does not appear that those records have been associated with the claims file. Accordingly, the Agency of Original Jurisdiction (AOJ) should attempt to obtain such records. The matter is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for erectile dysfunction. A specific request should be made for information regarding any treatment that he received from Dr. K. (initials used to protect privacy; identified during June 2018 hearing). After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. After completing the foregoing development, the AOJ should refer the Veteran’s claims file to a suitably qualified VA examiner to obtain a VA examination and medical opinion to determine the nature and etiology of the Veteran’s erectile dysfunction. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and lay statements. It should be noted that the Veteran is considered competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should address whether it is at least as likely as not that the Veteran’s erectile dysfunction is causally or etiologically related to his military service, to include any herbicide exposure therein (regardless of the fact that such an association may not be presumed). The examiner should also opine as to whether it is at least as likely as not that the Veteran’s erectile dysfunction is either caused by or aggravated by his service-connected prostate cancer. In rendering this opinion, the examiner should consider the April 1980 service records indicating that the Veteran had prostatitis and an enlarged prostate, and a November 1980 report of medical history which noted frequent or painful urination. (The term “at least as likely as not “does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]”38 C.F.R. § 4.1, copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Saikh, Associate Counsel