Citation Nr: 18149556 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 15-21 569 DATE: November 9, 2018 ORDER Whether new and material evidence has been received to reopen a previously denied claim for service connection for bladder cancer, to include as secondary to Agent Orange exposure is reopened; to that extent only, the appeal is granted. Whether new and material evidence has been received to reopen a previously denied claim for service connection for prostate cancer, to include as due to Agent Orange exposure; to that extent only, the appeal is granted. Whether new and material has been received to reopen a previously denied claim for service connection for a respiratory disability, to include asbestosis, chronic obstructive pulmonary disease, and emphysema, claimed as due to asbestos and/or pesticide exposure; to that extent only, the appeal is granted. REMANDED Entitlement to service connection for bladder cancer, to include as secondary to Agent Orange exposure is remanded. Entitlement to service connection for prostate cancer, to include as due to Agent Orange exposure is remanded. Entitlement to service connection for a respiratory disability, to include asbestosis, chronic obstructive pulmonary disease, and emphysema, claimed as secondary to asbestos and/or pesticide exposure is remanded. FINDINGS OF FACT 1. In a June 2011 final unappealed rating decision, the RO denied service connection claim for bladder and prostate cancers and respiratory disability (claimed as chronic obstructive pulmonary disease (COPD)) and bronchitis, each to include as secondary to Agent Orange exposure; the Veteran did not perfect an appeal of that rating decision, and did not submit new and material evidence within a year of notice of the decision, and it became final based on the evidence of record at the time. 2. Evidence received since the June 2011 rating decision relates to unestablished facts necessary to substantiate the claims for service connection for bladder and prostate cancers and respiratory disability, claimed as COPD and bronchitis, and raises a reasonable possibility of substantiating these claims. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for bladder cancer, to include as secondary to Agent Orange exposure is reopened. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. § 3.156 (2018). 2. New and material evidence has been received, and the claim of service connection for prostate cancer, to include as secondary to Agent Orange exposure is reopened. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. § 3.156 (2018). 3. New and material evidence has been received, and the claim of service connection for a respiratory disability, to include as secondary to asbestos and pesticide exposure is reopened. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from April 1960 to May 1962, to include service in Korea from February 13, 1961 to April 21, 1962. These matters are before the Board of Veterans’ Appeals (Board) from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. By that rating action, the RO, in part, declined to reopen previously denied claims for service connection for bladder and prostate cancer, to include as due to Agent Orange exposure and respiratory disability, to include as due to asbestos exposure. The Veteran appealed the RO’s determinations and the April 2013 rating decision to the Board. In his June 2014 and June 2015 Notice of Disagreement and Substantive Appeal, respectively, the Veteran maintained that his respiratory disability was secondary to asbestos and pesticide exposures from having been transported on United States Navy ships to and from Korea, and that his bladder and prostate cancers were the result of having been exposed to Agent Orange during his service in Korea from 1961 to 1962. (See Veteran’s 21-0958, Notice of Disagreement, and VA Form 9, received by VA in June 2014 and June 2015, respectively). Thus, the Board has characterized the claims on appeal to reflect the Veteran’s various theories of causation. In August 2018, the Veteran testified before the undersigned at a videoconference hearing before the undersigned. A copy of the hearing transcript has been associate with the record. The Veteran seeks to reopen previously denied claims for service connection for bladder and prostate cancers, claimed as secondary to Agent Orange (bladder and prostate cancers) and respiratory disability, claimed as secondary to asbestos and pesticide exposures. As the law is the same with respect to each of the claims, the Board will discuss them collectively in its new and material analysis below. In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2018). A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108 (2012). Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (2017). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 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 or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). A claim is not reconsidered, however, where VA could not have obtained the records when it initially decided the claim because the records did not exist at that time, or because the claimant failed to provide sufficient information to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or any other official source. 38 C.F.R. § 3.156(c)(2). To establish service connection, a Veteran 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 - the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In a June 2011 rating decision, the RO denied service connection for bladder and prostate cancers and respiratory disability because there was no evidence of a nexus between these disabilities and the Veteran’s period of military service, notably his claimed Agent Orange and asbestos exposure. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The Board finds that new and material evidence has been received to reopen the claims. Evidence received since the June 2011 final rating decision includes, but is not limited to, the Veteran’s August 2018 hearing testimony. During the hearing, the Veteran provided copious additional details as to his reported in-service Agent Orange and asbestos exposures. The Veteran’s testimony is presumed credible per Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The evidence, is new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claims- evidence of nexuses between the Veteran’s prostate and bladder cancers and respiratory disability and his claimed Agent Orange and asbestos exposures. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claims. Shade, 24 Vet. App. at 117. Accordingly, for the above reasons, the Veteran’s claims are reopened. REASONS FOR REMAND The Board finds that prior to appellate consideration of the claims for service connection for bladder and prostate cancers and respiratory disability, to include as secondary to Agent Orange and asbestos and pesticides exposures, additional development is required. Regarding the Veteran’s claims for service connection for bladder and prostate cancers, he contends that they are the result of herbicide exposure which took place when he was stationed in Korea near the demilitarized zone (DMZ) from 1961 to 1962. In order to benefit from the presumption of service connection for diseases associated with herbicide exposure, the Veteran must have one of the diseases enumerated in 38 C.F.R § 3.309 (e), such as prostate cancer. 38 C.F.R. § 3.309(e)(2018). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans’ Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The United States Court of Appeals for Veterans Claims (Court) has specifically held that the provisions of Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). If a veteran had active service between April 1, 1968, and August 31, 1971, in a unit that, as determined by the DOD, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, the veteran shall be presumed to have been exposed during such service to an herbicide agent, such as Agent Orange. 38 C.F.R. § 3.307 (a)(6)(iv). The Veteran’s service personnel records demonstrate that he had service in Korea, from February 13, 1961 to April 21, 1962, a period that is outside the specific time period for presumed herbicide exposure near the Korean DMZ. As noted above, the Veteran, however, is not precluded from establishing service connection for bladder and prostate cancers with proof of actual direct causation. Combee, supra. In an August 2013 Memorandum to the File, the RO noted that the Veteran had provided insufficient information surrounding his exposure to herbicides in Korea near the DMZ to send to the United States. Army and Joint Services Records Research Center (JSRRC) for verification. (See RO’s August 2013 VA Memorandum to the File). In January 2017, the Veteran submitted a newspaper article titled, “Agent Orange: U.S. Veterans Asked To Help Korean Government. Investigation,” wherein it was noted that the JSRRC had verified the use of Agent Orange in Korea from 1962 to 1970 for a different military unit. (See newspaper article titled, “Agent Orange Agent Orange: U.S. Veterans Asked To Help Korean Government. Investigation,” labeled as “Third Party Correspondence” and received into the Veterans Benefits Management System (VBMS) electronic record on January 9, 2017)). Thus, the Board finds that that additional development action is warranted to send a request to the JSRRC for verification of exposure to herbicides when a Veteran claims exposure in Korea, and the service was (1) not between April 1, 1968, and August 31, 1971. Specifically, the RO must send a request to JSRRC for verification of exposure to herbicides. Accordingly, on remand, the AOJ should seek confirmation from the JSRRC for verification of the Veteran’s exposure to herbicides, to include his proximity to the DMZ while stationed in Korea. Regarding the claim for service connection for a respiratory disability, the only evidence of record regarding asbestos exposure is the Veteran’s statements of his in-service exposure to asbestos and testimony during the undersigned in August 2018. Specifically, the Veteran maintains that he was exposed to asbestos while being transported to and from Korea in 1961 and 1962 aboard United States Navy ships, notably the USS General J C Breckenridge (AP-176) and the USNS General Hugh J Gaffney (T-AP-121). (See VA Form 21-0958, Notice of Disagreement, and VA Form 9, received into the Veteran’s VBMS electronic record in June 2014 and June 2015, respectively). However, the RO has not corroborated the Veteran’s exposure to asbestos or pesticides. On remand, additional efforts should be made to determine whether there is any objective evidence that the Veteran was exposed to asbestos and/or pesticides during military service. In addition, VA should schedule the Veteran for a VA examination with an opinion to determine the nature and etiology of all diagnosed respiratory disabilities. The Board notes that VA examined the Veteran in connection with his claim for service connection for a respiratory disability in February 2016. After a physical evaluation of the Veteran, a recitation of his history of having been exposed to asbestos for six (6) weeks while serving aboard ships that transported him to and from Korea, as well as a 50-year history of having smoked one (1) to two (2) packs of cigarettes a day, the VA examiner concluded that it was less likely than not that his diagnosed severe COPD with emphysema was the result of asbestos exposure, but was secondary to heavy smoking. (See February 2016 VA respiratory Disability Benefits Questionnaire at page (pg.) 11)). The Board finds that the February 2016 VA examiner’s opinion to be of reduced probative value in evaluating the claim because it was not supported with any rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Veteran also submitted an opinion, authored by T. T., M. D., dated in October 2011, in support of his claim for service connection for a respiratory disability. Dr. T. T. noted that he had treated the Veteran in the past for emphysema and that he had a history of Agent Orange exposure. Dr. T. T. opined that in current medical literature, the full extent of damage that Agent Orange could do to the lungs was unclear. In the Veteran’s case, according to Dr. T. T., Agent Orange may (italics added for emphasis) have been a contributing factor to the severity of his lung disease. (See October 2011 report, authored by Dr. T. T., received into the Veteran’s VBMS electronic record on January 30, 2017). The Board finds Dr. T. T.’s October 2011 opinion to be of reduced probative value in evaluating the claim because it is equivocal and was provided without any rationale. The Board finds the above-cited VA and private opinions to be of minimal probative value in evaluating the Veteran’s claim for service connection for a respiratory disability because they are equivocal and provide any reasoning for their blanket conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes to the probative value to a medical opinion). Thus, the Board finds that the Veteran should be afforded another VA examination with an opinion prior to further appellate consideration of the claim for service connection for a respiratory disability, to include as due to asbestos and pesticide exposures. The matters are REMANDED for the following action: 1. Contact the JSRRC for verification of the Veteran’s exposure to herbicides, to include his proximity to the DMZ while stationed in Korea from February 13, 1961 to April 21, 1962. The JSRRC is also requested to verify the Veteran’s statements of having been exposed to asbestos and pesticides during his service the USS General J C Breckenridge (AP-176) and the USNS General Hugh J Gaffney (T-AP-121) from February 13, 1961 to April 21, 1962. 2. If unable to verify the Veteran’s statements, the RO must prepare a formal memorandum to this effect, which outlines the steps they took to verify the alleged visit and responses received, to specifically include responses from VA Personnel Information Exchange System (PIES) and JSRRC. The Veteran and his representative must be notified of this finding and be given an opportunity to respond. 3. If and only if the above-cited development reflects that the Veteran has been exposed to Agent Orange or other herbicide agents during service, should he be provided with an appropriate examination to determine the etiology of his diagnosed bladder cancer. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bladder cancer had onset in, or is otherwise related to, active military service, to include the now-confirmed Agent Orange exposure. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of each respiratory disability diagnosed one examination. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (Continued on the next page)   For each respiratory disability diagnosed on examination, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that it had onset in, or is otherwise related to, active military service, to include the Veteran’s claimed asbestos and pesticide exposure. In answering the above questions, the VA examiner should consider and comment upon the following evidence: (i) March 1962 Report of Medical History, reflecting that the Veteran had complained of having had pain or pressure in his chest, and notation of occasional shortness of breath following exercise by the examining clinician; (ii) October 2011 opinion, authored by T. T, M. D, who opined that Agent Orange may (italics added for emphasis) have been a contributing factor to the severity of his lung disease; (iv) February 2016 VA examiner’s opinion that the Veteran’s diagnosed COPD with emphysema was secondary to heavy smoking; and, (v) Veteran’s lay statements in the claims file as well as his August 2018 testimony. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Carole Kammel, Counsel