Citation Nr: 18148094 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-35 637A DATE: November 6, 2018 ORDER As new and material evidence was received, the request to reopen a claim for entitlement to service connection for prostate cancer is granted Entitlement to service connection for prostate cancer, to include as a result of in-service exposure to herbicide agents, is granted. FINDINGS OF FACT 1. In a final September 2013 rating decision, the Regional Office denied the Veteran’s claim of entitlement to service connection for prostate cancer. 2. The evidence received since the September 2013 rating decision is not cumulative or redundant of the evidence of record and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for prostate cancer. 3. Resolving all reasonable doubt in favor of the Veteran, exposure to herbicide agents at U-Tapao Royal Thai Navy Airfield (RTNA) has been established. 4. The Veteran has a diagnosis of prostate cancer, which is presumed related to his in-service herbicide agent exposure. CONCLUSIONS OF LAW 1. The September 2013 rating decision denying the Veteran’s claim for entitlement to service connection for prostate cancer is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1100. 2. New and material evidence has been received to reopen the claim for entitlement to service connection for prostate cancer. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for prostate cancer, to include as a result of in-service exposure to herbicide agents, have been met. 38 U.S.C. §§ 1110, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from September 1968 to March 1972. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran requested reconsideration of the rating decision; however, the Agency of Original Jurisdiction (AOJ) maintained its denial in an April 2016 rating decision. After the statement of the case was issued in June 2016, the Veteran submitted numerous statements and photographs in support of his appeal in July 2016 and January 2017. No waiver of RO consideration of this evidence is necessary, as the Veteran’s substantive appeal was received after February 2, 2013. See 38 U.S.C. § 7105(e). The Veteran is seeking service connection for prostate cancer, which he contends is due to herbicide agent exposure. He alleges that while he was stationed at U-Tapao RTNA his daily duties required him to be in close proximity to the perimeters of the base. New and Material Evidence Entitlement to service connection for prostate cancer was denied in a September 2013 rating decision on the basis that there was no evidence of exposure to herbicide agents either in-service in Republic of Vietnam during the Vietnam Era or through some other military experience. The Veteran did not appeal the decision or submit any pertinent/relevant evidence within one year of notice of this rating decision, and it is therefore found to be a final decision. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Evidence is new if it has not been previously submitted to agency decision makers. Id. Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or 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. Id. The phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Board notes that its first task is to first decide whether new and material evidence has been received, as opposed to whether or not the evidence actually substantiates the Veteran’s claim. The pertinent evidence added to the record since the final September 2013 rating decision includes: (1) medical treatment records; (2) photographs of the airfield and base perimeter at U-Tapao RTNA; and (3) the Veteran’s numerous statements regarding herbicide agent exposure. The Veteran has submitted several statements reporting that his daily duties required him to be near the base perimeter. The Veteran also submitted photographs of the airfield and base perimeter to back up this assertion. While the RO’s prior denial determined that there was no documentation that the Veteran was exposed to herbicide agents during active military service, the Board finds that the Veteran’s lay statements and photographs support his contentions. Thus, the Board finds that the Veteran’s claim for entitlement to service connection for prostate cancer is reopened, as the submitted statements and photographs from the Veteran are new and material evidence that relate directly to an unestablished fact necessary to substantiate the Veteran’s claim. Service Connection Service connection will be granted if it is shown that the Veteran has a disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a casual relationship between the present disability and the disease or injury incurred or aggravated during service. The Veteran contends that service connection for prostate cancer is warranted based upon herbicide agent exposure while stationed at U-Tapao RTNA. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including prostate cancer, may be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service. 38 C.F.R. §§ 3.307(d), 3.309(e). Veterans who, during active military, naval, or air service, served in the Republic of Vietnam from February 28, 1961 to May 7, 1975, shall be presumed to have been exposed to an herbicide agent, including Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). VA has determined that during the Vietnam Era there was significant use of herbicide agents 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 declassified Department of Defense (DOD) Report titled “Project CHECO Southeast Asia Report: Base Defense in Thailand.” Thus, VA has determined that Vietnam Era veterans whose service involved duty on or near the perimeters of military bases in Thailand anytime between February 28, 1961, and May 7, 1975, may have been exposed to herbicide agents and may qualify for VA benefits. Due to this, special consideration of herbicide agent exposure on a facts-found or direct basis has been extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. The Veteran’s medical records reflect that he was diagnosed with prostate cancer in 2011. Thus, the first element for establishing service connection, a current disability, has been met. The question becomes whether the condition is related to service. The Veteran’s service treatment records are negative for pertinent abnormalities. The Veteran’s service personnel records reflect that he was a vehicle operator dispatcher and that he was stationed at U-Tapao RTNA in 1969 and 1970. After review of the record, the Board finds that the Veteran has presented competent and credible evidence showing that his work duties at U-Tapao RTNA frequently placed him at the perimeter. Exposure to herbicide agents is therefore presumed. (CONTINUED ON NEXT PAGE) As the Board has conceded exposure to herbicide agents, the Veteran’s prostate cancer is presumed to be associated with his in-service herbicide agent exposure. See 38 C.F.R. § 3.309(e). There is no clear and convincing evidence to rebut this presumption. As a result, the Board finds that the evidence supports a grant of service connection for prostate cancer. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Robinson, Associate Counsel