Citation Nr: 18148766 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-45 393 DATE: November 8, 2018 ORDER The request to reopen the claim for service connection for prostate cancer, to include as a result of exposure to herbicides, is granted. REMANDED Entitlement to service connection for prostate cancer, to include as a result of exposure to herbicides, is remanded. Entitlement to service connection for a left leg disability, to include arthritis and peripheral neuropathy, is remanded. Entitlement to service connection for a right leg disability, to include arthritis and peripheral neuropathy, is remanded. FINDINGS OF FACT 1. Service connection for, inter alia, prostate cancer was denied by the RO in a May 2011 rating decision. The Veteran was informed of the decision and he did not appeal. 2. The evidence submitted since the RO’s May 2011 decision is relevant and probative of the issue of service connection for prostate cancer. CONCLUSIONS OF LAW 1. The May 2011 decision, which denied service connection for, inter alia, prostate cancer, is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. The evidence received since the May 2011 decision is new and material, and the issue of entitlement to service connection for prostate cancer is reopened. 38 U.S.C. §§ 5103A, 5107, 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1966 to February 1968. The Board notes that a records request was received in December 2016 from the Veteran’s then-attorney, M.A.S., requesting that he, the attorney, be sent the entire claim file. However, subsequent to the request, a new VA Form 21-22 was submitted, naming a new representative. See VA Form 21-22, March 2017. Accordingly, the Board views the December 2016 records request as moot. Further, the Board has added to the appeal the issues of entitlement to service connection for a left and right leg disability, expanded pursuant to the Federal Circuit’s decision in Clemmons v. West, 206 F.3d 1401, 1403 (Fed. Cir. 2000). The RO adjudicated the issues of entitlement to service connection for left and right leg conditions in the August 2016 statement of the case (SOC). In his VA Form 9, the Veteran identified an appeal of “nevro-arthritus” [sic]. See VA Form 9, September 2016. The Board liberally construes this statement as referring to a bilateral leg disability. Accordingly, the issues have been added to the appeal. New and Material Evidence A prior final decision will be reopened if new and material evidence is submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). If the Board determines that the evidence is new and material, the case is reopened and evaluated in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). In making this determination, the Board must look at all of the evidence submitted since the time that the claim was finally disallowed on any basis, not only since the time the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273 (1996). The Board notes that the applicable regulation requires that new and material evidence is evidence which has not been previously submitted to agency decision makers which relates to an unestablished fact necessary to substantiate the claim, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled, must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The request to reopen the claim for service connection for prostate cancer, to include as a result of exposure to herbicides, is granted. In May 2011, the RO denied the Veteran’s claim for service connection for, inter alia, prostate cancer. The Veteran did not appeal within one-year and the decision became final. The RO found that evidence submitted did not show that the Veteran’s condition existed or is the result of his military service. The Board has made a careful review of the record, and concludes that since the prior denial, material evidence has been associated with the file, affording sufficient grounds to reopen the Veteran’s claim. Specifically, the Board points to a nexus opinion from October 2012, from physician, Dr. R. S., which appears to state that the Veteran’s prostate cancer is due in some way to service or Agent Orange exposure in service. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As such, this cures an evidentiary defect which existed at the time of the prior denial and the Board will reopen the issue. As new and material evidence has been received, the Board concludes that the claim for entitlement to service connection for prostate cancer, is reopened and, in this regard, the Veteran’s appeal is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS FOR REMAND 1. Entitlement to service connection for prostate cancer, to include as a result of exposure to herbicides, is remanded. The Veteran claims exposure to Agent Orange while stationed at U-Tapao, Thailand. See Notice of Disagreement, August 2013. The Veteran has documented service in Thailand during the Vietnam Era, at U-Tapao AF, as a Tanker Ground Crew Member. Claims involving alleged exposure at such an installation are to be analyzed under the appropriate administrative guidelines given the absence of pertinent statutory and regulatory provisions. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). According to these guidelines, exposure will be conceded for certain veterans whose duties placed them on or near the perimeters of Thailand military bases during the Vietnam era. Such veterans include those who were stationed at the Royal Thai Air Force bases in U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, and who served in a position or MOS that required duty on the base perimeter, such as security police or dog handler, etc. The Veteran does not have the requisite MOS or unit assignment to concede herbicide exposure based on these provisions. Accordingly, the Board will remand for further development, to include referring the matter to the JSRRC coordinator to make a formal finding. The Board is aware of the October 2012 private nexus opinion; however, the Board finds this opinion to be inadequate. First, the physician did not indicate review of the Veteran’s service or post-service treatment records. Second, no rationale for the opinion is given. Further, several disabilities are listed, and it is unclear which opinion relates to which disability. Finally, the opinion presumes Agent Orange exposure, which has not been determined. Accordingly, the Board cannot use this opinion to grant the benefit sought. 2. Entitlement to service connection for a left leg disability, to include arthritis and peripheral neuropathy, is remanded. 3. Entitlement to service connection for a right leg disability, to include arthritis and peripheral neuropathy, is remanded. In addition, the Board finds that an examination is needed regarding the Veteran’s claimed leg disability. In particular, the Board seeks clarification of the Veteran’s diagnosis, and an opinion addressing whether his disability is due to service. The Board is aware of the October 2012 nexus opinion from the private physician, which appears to suggest that the Veteran’s arthritis may be due to military service. However, as described above, this opinion is unclear and provides no rationale for its conclusions. Accordingly, the Board finds it to be inadequate. In addition, the Board notes that early-onset peripheral neuropathy is a disability recognized as associated with exposure to certain herbicide agents. See 38 C.F.R. § 3.309(e). To the extent that the Veteran is claiming that he has peripheral neuropathy in his lower extremities due to herbicide exposure, the issues are inextricably intertwined with the development outlined above. Accordingly, these issues must be remanded. The matter is REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issues on appeal. All efforts to obtain these records should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Obtain from the Veteran the approximate dates, location, and nature of his alleged exposure to herbicides in Thailand. Then refer the case the JSRRC coordinator to make a formal finding. If the Veteran does not respond to the initial request, a request should be made to the JSRRC based on the evidence of record. All documentation of these efforts and responses must be added to the claim file and any recommendations made by the JSRRC to obtain relevant records from alternative sources must be attempted. All requests and responses to these directives, both positive and negative, must be documented in the record. 3. Upon completion of the above, schedule the Veteran for a VA examination to clarify the diagnosis of his left and right leg disability and to address the etiology of any diagnosed disability(ies). For each disability diagnosed, the examiner is asked to address whether it is at least as likely as not (i.e., a 50 percent or greater probability) that it was caused by the Veteran’s active duty service or, if preexisting service, was aggravated therein. The examiner is asked to specifically address any diagnosis of peripheral neuropathy, including early-onset peripheral neuropathy, or arthritis. For all examinations, all necessary development should be taken. The VA examiner should be given access to the claim file. The examiner should state that a review of the claim file was completed. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. A detailed rationale is requested for all opinions provided. 4. If upon completion of the above action the issues are denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Foster, Associate Counsel