Citation Nr: 18128212 Decision Date: 08/21/18 Archive Date: 08/21/18 DOCKET NO. 17-51 223 DATE: August 21, 2018 ORDER New and material evidence having been received, the appeal as to the issue of service connection for prostate cancer is reopened. New and material evidence having been received, the appeal as to the issue of service connection for bone cancer is reopened. Service connection for prostate cancer as due to presumed in-service Agent Orange exposure is granted. Service connection for bone cancer as secondary to now service-connected prostate cancer is granted. FINDINGS OF FACT 1. In an October 2014 rating decision, the RO denied service connection for prostate cancer and bone cancer; the Veteran did not appeal this decision nor did he submit new and material evidence within the one-year period. 2. New evidence submitted since the October 2014 rating decision goes to the basis of the prior final denial. 3. The Veteran is currently diagnosed with prostate cancer. 4. The Veteran’s duties while serving in Thailand during the Vietnam era required his presence near the perimeters of Ubon air base on which he was stationed, and Agent Orange was used to defoliate the air base perimeters during the Veteran’s period of service. 5. The Veteran’s bone cancer is caused by his prostate cancer. CONCLUSIONS OF LAW 1. The October 2014 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. 2. New and material evidence has been received to reopen the previously denied claims of entitlement to service connection for prostate cancer and bone cancer. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for prostate cancer have been met. 38 U.S.C. §§ 1110, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. The criteria for service connection for bone cancer have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1961 to July 1969. 1. New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is 38 U.S.C. § 5108, which provides that, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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 this case, the RO denied service connection for prostate cancer in October 2014 on the basis that there was no in-service incurrence or nexus, considering both theories of direct and presumptive service connection. The RO denied service connection for bone cancer on the basis that there was no current disability. The evidence considered at the time included service treatment and service personnel records, post-service VA treatment records, and formal findings. The Veteran did not appeal the decision, and new and material evidence was not received within one year of the decision. Thus, the October 2014 decision became final. See 38 U.S.C. § 7105(d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Pertinent evidence received since the October 2014 denial of the claims includes a diagnosis of bone cancer and lay evidence containing specific details about the Veteran’s duties and location in Thailand that likely would have exposed him to Agent Orange. This evidence relates to the bases for the prior denial, as current disability and in-service incurrence were elements previously unestablished for the respective claims. The additional evidence received since the October 2014 previous denial is thus new and material. The criteria for reopening the claims for service connection for prostate cancer and bone cancer are met. 2. Service connection for prostate cancer The Veteran is seeking service connection for his prostate cancer on a presumptive basis, based on the nature of his active duty in Thailand’s Ubon Air Force Base. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Prostate cancer is listed among the diseases presumed to be associated with herbicides agent exposure (such as to Agent Orange), and the Veteran is currently diagnosed with prostate cancer, which the record reflects has manifested to a disabling degree. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). VA procedures for verifying exposure to herbicide agents in Thailand during the Vietnam Era are detailed in the VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H. VA has determined that 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 a declassified report entitled, “Project CHECO Southeast Asia Report: Base Defense in Thailand.” Special consideration of herbicide agent exposure on a facts-found or direct basis is extended to those Veterans whose duties placed them on or near the perimeters of Thailand military bases – i.e., allowing 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 Royal Thai Air Force Bases of 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 base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. See M21-1, Part IV, Subpart ii, Chapter 1, Section H.5.b. The Veteran reports that he was stationed at the Ubon Air Force Base from about January 1968 to July 1969. Service personnel records confirm that the Veteran was stationed at the Ubon Air Force Base during this time and that the Veteran’s military occupational specialty (MOS) was educational specialist. The crux of the matter here is whether the Veteran’s service in Thailand meets the requirement of a job “otherwise near the air base perimeter as shown by the evidence of daily work duties, performance evaluations reports, or other credible evidence[.]” VBA Manual M21-1, IV.ii.1.H.5. In support of his claim, the Veteran submitted very detailed written descriptions of his barracks, Ubon Air Force Base, his office and work area, and his duties and observations. See 2016 and 2017 Statements, Notice of Disagreement, and Form 9. He also submitted maps and photographs. For example, he described the open air construction and location of the barracks and observed wind drift particles of the herbicide sprays; he lived was less than 500 feet from the perimeter of the base. He identified the location of his work in Education Services, located approximately 700-800 feet of the base of the perimeter (also depicted this location on the map). The Veteran also submitted a picture of himself in his work area where white dusty residue is apparent in a screen behind him; he explains that residue is from herbicide sprays. He described the relatively small area of the operations zone (described as in a wind drift zone) where Agent Orange was used along the perimeter. Further, the Veteran’s reports of living and working in an area near the perimeter, particularly given the credible statements of the wind drift zone and likely exposure based on the construction and location of the barracks, work area, and perimeter establish that it is as likely as not that the Veteran had Agent Orange exposure, and the Board finds that these specific details and photograph lends further credence to the Veteran’s reports. Given that official records establish the use of herbicide agents on the perimeters of the Ubon air base, and given the Veteran’s competent and credible report of his presence near the Ubon air base perimeter while on active duty, the Board concludes that the evidence of record is sufficient to establish the Veteran’s exposure to herbicide agents during his Vietnam era service in Thailand on a facts-found basis. The Board acknowledges the negative formal finding made by the Joint Services Records Research Center (JSRRC) coordinator at the Agency of Original Jurisdiction (AOJ), including that there is insufficient information required to corroborate exposure to Agent Orange to make the necessary inquiry; the Veteran did not have a military occupation to put him near the perimeter of the base. However, on review of the complete evidence of record, the Board determines that affording the Veteran the benefit of the doubt results in a determination that he was exposed to herbicides during service. The Board has considered the places, types, and circumstances of this specific Veteran’s service to place him near the air base perimeter. He is competent to discuss what he has personally observed and his detailed descriptions, maps, photograph, and arguments are credible and uncontroverted by the record. With these facts established, it is VA’s policy to presume exposure to herbicides as there is no affirmative evidence to the contrary. See VBA Manual M21-1, IV.ii.1.H.5. Because it is presumed that prostate cancer results from Agent Orange exposure, a nexus to service is established under 38 C.F.R. §§ 3.307, 3.309. For these reasons the appeal must be granted. 3. Service connection for bone cancer as secondary to prostate cancer The Veteran claims that his bone cancer is the result of his prostate cancer, for which he has been awarded service connection herein. Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). In this case, the Veteran has a diagnosis of bone cancer since 2012, which has been medically confirmed as the result of his metastatic prostate cancer. See April 2017 Medical Note from Vanderbilt University Medical Center. Specifically, two private health care providers have noted that the Veteran’s bone scans, and a bone biopsy, reflect metastasis of his prostate cancer. There is no competent evidence of record that contradicts this finding. As such, all materials elements of the claim have been met by preponderance of the evidence. Secondary service connection for bone cancer is warranted. JEBBY RASPUTNIS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Nichols, Counsel