Citation Nr: 18150028 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-41 835 DATE: November 14, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for prostate cancer, to include as secondary to herbicide exposure, is reopened. Service connection for prostate cancer, to include as secondary to herbicide exposure, is granted. FINDINGS OF FACT 1. Service connection for prostate cancer, to include as secondary to herbicide exposure, was denied in a February 2012 rating decision; new and material evidence was received within one year of the notice of the rating being mailed. The claim was then re-adjudicated and denied in an August 2012 statement of the case; neither a Form 9 nor new and material evidence was received within sixty days of the notice of the statement of the case being mailed. 2. Additional evidence received since the February 2012 decision is new, relates to an unestablished fact necessary to substantiate the claim of service connection for prostate cancer, to include as secondary to herbicide exposure, and raises a reasonable possibility of substantiating the claim. 3. Resolving all reasonable doubt in favor of the Veteran, exposure to herbicide agents at U-Tapao Royal Thai Air Force Base (RTAFB) in Thailand has been established based on the competent and credible evidence of record in this case. 4. The Veteran has a diagnosis of prostate cancer, which is presumed related to his in-service herbicide exposure during his active service in Thailand. CONCLUSIONS OF LAW 1. The February 2012 rating decision that reopened the claim, but denied service connection for prostate cancer, to include as secondary to herbicide exposure, became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.1103 (2012). 2. New and material evidence has been received since the February 2012 decision to reopen the claim of entitlement to service connection for prostate cancer, to include as secondary to exposure to herbicide agents. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for prostate cancer, as due to exposure to herbicides, have been met. 38 U.S.C. §§ 1110, 1131, 1116, 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 August 1971 to September 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In its December 2015 rating decision, the AOJ did not reopen the Veteran’s claim of service connection for prostate cancer, to include as secondary to herbicide exposure. Nevertheless, the issues of whether new and material evidence has been presented must be determined by the Board de novo, as the matter is a jurisdictional issue that the Board must address. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). New and Material Evidence Whether new and material evidence has been received with respect to the claim of entitlement to service connection for prostate cancer, to include secondary to herbicide exposure. After reviewing the record, the Board finds that new and material evidence has been received for the claim of service connection for prostate cancer, to include as secondary to herbicide exposure, and as such the claim is reopened. Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. §3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA’s duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. The Veteran’s claim for service connection for prostate cancer, to include as secondary to herbicide exposure, was originally denied by a September 2006 rating decision. The Veteran failed to file a timely notice of disagreement, and no new and material evidence was received within the appeal period after the decision. The Veteran’s claim was later reopened by a February 2012 rating decision, but was denied on the merits. New and material evidence was received within the appeal period after the decision, and the claim was denied in an August 2012 statement of the case. The Veteran failed to file a timely Form 9, and no new and material evidence was received within the appeal period after the decision. As such, the decision became final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 3.156(b) (2017) (stating that new and material evidence received within the appeal period after a decision is considered as having been received in conjunction with the prior claim); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (finding that VA must determine whether evidence received during the appeal period after a decision contains new and material evidence per section 3.156(b) and failure to readjudicate the appeal after receipt of such evidence renders the decision non-final). The claim of service connection for prostate cancer, to include as secondary to herbicide exposure, is reopened because since the final February 2012 rating decision denying service connection, new and material evidence has been received. In the February 2012 determination, the RO found that the evidence does not support the concession of herbicide exposure in service, and that the evidence does not show that the claimed prostate cancer was incurred in or aggravated by service. The February 2012 rating decision considered, in relevant part: private and VA medical records regarding the diagnosis and treatment of the Veteran’s prostate cancer; a memorandum on herbicide use in Thailand; and a VA Form 21-0820, Report of General Information dated August 9, 2018. Notably, the Report of General Information included the Veteran’s lay statements alleging that the Veteran regularly walk around the U-Tapao RTAFB, and also occasionally leaving the base. Likewise, in the August 2012 Statement of the Case, the Decision Review Office (DRO) noted that a statement received from the Veteran on April 11, 2012, was also considered in denying the claim. The Veteran’s statement included a description of regularly working near and around the flight line at the U-Tapao RTAFB. Since the February 2012 rating decision, the Veteran submitted additional medical records, military records, military reports, a map of U-Tapao RTAFB, and an affidavit. Most notably, the affidavit includes statements from the Veteran that, while stationed at the U-Tapao RTAFB in 1974, the Veteran often walked close to the perimeter of the base while attending his duties as an Air Crew Life Support Specialist, and that the perimeter of the base was a frequent location for jogging and smoke breaks. 9/26/2016, Affidavit. Furthermore, the map of U-Tapao RTAFB demonstrates that the flight line was on the perimeter of the base. 08/12/2017, Third Party Correspondence, page 12. The Board finds that this evidence is new and that it directly pertains the basis of the final denial, by addressing whether the Veteran was exposed to herbicide agents, to include his whereabouts at the U-Tapao RTAFB. Therefore, the claim of service connection for prostate cancer, to include as secondary to herbicide agent exposure, is reopened. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). In order to establish entitlement to service connection, there must be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain specified chronic diseases, including malignant tumors, may be presumed to have been incurred in or aggravated by service if manifested to a compensable degree within one year of discharge from active service. See 38 U.S.C. §§ 101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Veterans who, during active 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 to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. Service incurrence for certain diseases, including prostate cancer, will be presumed on the basis of association with certain herbicide agents (e.g., Agent Orange). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Such presumption, however, requires evidence of actual or presumed exposure to herbicides. Id. VA procedures for verifying exposure to herbicides in Thailand during the Vietnam Era and other VA guidance has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as evidence in the Project CHECO Southeast Asia Report: Base Defense in Thailand (CHECO Report). Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. This allows for presumptive service connection of the diseases associated with herbicide exposure. The majority of troops in Thailand during the Vietnam Era were stationed at the RTAFB at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air bases perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then VA guidance indicates that herbicide exposure should be acknowledged on a facts-found or direct basis. Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection with proof of direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection from some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, presumption is not the sole method for showing causation. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). 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. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). Entitlement to service connection for prostate cancer, to include as secondary to exposure to herbicide agents. The Veteran contends that his prostate cancer developed due to exposure to herbicide agents while stationed at the U-Tapao RTAFB in 1974. The Veteran has a diagnosis of prostate cancer (adenocarcinoma). See 08/10/2011, Medical Treatment Record – Non-Government Facility, at 3. The Veteran’s contention that he was stationed at U-Tapao RTAFB from June 1974 to July 1974 is corroborated by the Veteran’s DD-214, which reflects that he was stationed in Thailand on temporary duty orders (TDY) for 21 days, as well as his military personnel records, which reflect that the Veteran was recommended for promotion due, in part, to his dedicated efforts while on TDY in South East Asia. See 03/07/2014, Military Personnel Records, at 4. The Veteran’s military occupational specialty was a squadron life support specialist. 03/07/2014, Military Personnel Records, at 3. In an affidavit, the Veteran explained that, due to his MOS, the Veteran’s primary work station was in a building very close to the flight line at U-Tapao RTAFB; likewise, the Veteran would often work near or around the perimeter of the base, would cross the perimeter when leaving the base, and the perimeter was a common location for smoke breaks or jogging. 09/26/2016, Affidavit. Furthermore, the map of U-Tapao RTAFB indicates that the flight line was near the perimeter of the base. See 08/12/2017, Third Party Correspondence, at 12. The Board finds the Veteran to be both competent and credible in detailing his duties as a squadron life support specialist, as well as other activities, that occurred near and around the perimeter of U-Tapao RTAFB, and how he may have been exposed to herbicide agents. In particular, the Board places much weight on the Veteran’s duties taking him to the flight line near the base’s perimeter. 38 U.S.C. § 1154(a). The Board is persuaded by the Veteran’s competent and credible statements describing his in-service experiences. Even though there is no clear evidence of exposure to herbicide agents due to his Thailand service shown in the record, the Veteran has been consistent in his reported work obligations, which required him to be exposed to the perimeter during his service at the base. As alluded to above, the Board finds that the Veteran’s statements are consistent with the circumstances and conditions of his service at the U-Tapao RTAFB in Thailand during the Vietnam era. 38 U.S.C. § 1154(a). The evidence of record clearly establishes that the Veteran had service at one of the designated Thailand military bases. He also served on active duty for a period of the Vietnam era during which VA has acknowledged that herbicides were used near those air base perimeters in Thailand. Furthermore, he has provided competent statement, through affidavit, that establishes service near the base perimeter, and the Board finds such testimony to be consistent with the circumstances, places, and types of his service. There is no evidence in the file to doubt these statements and so the Board finds the Veteran’s account of herbicide exposure during service to be credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Resolving doubt in the Veteran’s favor, this evidence establishes on a facts-found basis that this Veteran was exposed to herbicide agents while serving at U-Tapao RTAFB. Given the above, the Board concludes that the Veteran is entitled to presumptions based on exposure to herbicide agents. See 38 C.F.R. §§ 3.307, 3.309 (2017). Because prostate cancer is a condition for which service connection can be granted on a presumptive basis when exposure to herbicides is established, entitlement to service connection for prostate cancer is granted. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert, 1 Vet. App. at 53. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Han, Associate Counsel