Citation Nr: 18128605 Decision Date: 08/23/18 Archive Date: 08/22/18 DOCKET NO. 17-55 828 DATE: August 23, 2018 ORDER New and material evidence has been received sufficient to reopen the claim for service connection for cancer of the larynx. New and material evidence has been received sufficient to reopen the claim for service connection for lung cancer. Entitlement to service connection for cancer of the larynx is granted. Entitlement to service connection for lung cancer is granted. FINDINGS OF FACT 1. In a final April 2010 rating decision, the RO denied entitlement to service connection for cancer of the larynx; the Veteran did not submit a Notice of Disagreement, no new and material evidence was submitted within one year of the decision, and the decision became final. 2. The evidence received since the final April 2010 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for cancer of the larynx. 3. In a final April 2010 rating decision, the RO denied entitlement to service connection for lung cancer; the Veteran did not submit a Notice of Disagreement, no new and material evidence was submitted within one year of the decision, and the decision became final. 4. The evidence received since the final April 2010 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for lung cancer. 5. The Veteran has been diagnosed with cancer of the larynx and lung cancer. 6. The evidence is at least in equipoise as to whether the Veteran was exposed to herbicide agents while serving in Thailand. CONCLUSIONS OF LAW 1. The April 2010 rating decision that denied the claim for service connection for cancer of the larynx is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the claim for entitlement to service connection for cancer of the larynx. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The April 2010 rating decision that denied the claim for service connection for lung cancer is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 4. New and material evidence has been received to reopen the claim for entitlement to service connection for lung cancer. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 5. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for cancer of the larynx are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for lung cancer are met. 38 U.S.C. §§ 1110, 5107(b); 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 from September 1965 to August 1967. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Jurisdiction is now with the RO in Houston, Texas. Service Connection 1. Whether new and material evidence has been received sufficient to reopen the claims for service connection for cancer of the larynx and lung cancer New evidence means existing evidence not previously submitted to agency decisionmakers. 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 (a). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. Additionally, 38 C.F.R. § 3.156 (b) provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal. See also Bond v. Shinseki, 659 F.3d. 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161 - 62 (1999). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). His claims for service connection for cancer of the larynx and lung cancer had previously been denied in an April 2010 rating decision because the evidence did not show that that either disability was incurred in or due to service, or that he had in-service exposure to Agent Orange. The Veteran did not file a NOD to the April 2010 rating decision and that decision became final. In a November 2012 rating decision, the RO reopened the claims and again denied them on the merits. The Veteran did not appeal that decision. However, new and material evidence pertaining to the Veteran’s claim was received within one year of the November 2012 rating decision. In this regard, in March 2013, the Veteran submitted a statement from his spouse as to the Veteran’s cancer and how his exposure to herbicides in Thailand contributed to his disability. The Board finds that this evidence is new as it was not previously of record and tends to relate to a previously unestablished fact necessary to substantiate the underlying claim of service connection. Moreover, because the evidence was submitted during the pendency of appeal of the November 2012 decision, the Board considers the evidence to be filed in connection with the claim pending at the beginning of the November 2012 appeal period. See 38 C.F.R. § 3.156(b). 2. Entitlement to service connection for cancer of the larynx and lung cancer The Veteran contends that his cancer of the larynx and lung cancer are related to service, specifically as due to in-service exposure to Agent Orange. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2017). Service connection may be granted on a presumptive basis for certain diseases associated with exposure to herbicide agents. 38 C.F.R. § 3.307 (a)(6). If a veteran was exposed to an herbicide agent during active military, naval, or air service, and develops certain diseases to a compensable degree any time after such service, the disease shall be service-connected even though there is no record of such disease during service, provided that the rebuttable presumption provisions of § 3.307(d) are also satisfied. 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). These diseases include respiratory cancers, such as cancer of the larynx and lung cancer. 38 C.F.R. § 3.309 (e). The presumptive provisions of 38 U.S.C. § 1116 have been extended to encompass veterans shown to have been otherwise exposed to tactical herbicides in service, including while serving in Thailand, or on the DMZ in Korea. VA has established a procedure for verifying exposure to herbicides in Thailand during the Vietnam era. VA 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 evidenced in a declassified Vietnam era Department of Defense document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." 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 and presumptive service connection allowed for the diseases associated with herbicide exposure. VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H, Paragraph 5. The majority of veterans 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 those air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter (during the Vietnam Era) as shown by MOS (military occupational specialty) or other credible evidence, herbicide exposure should be acknowledged on a facts-found basis. M21-1, IV.ii.1.H.5. The evidence of record shows that the Veteran has been diagnosed with cancer of the larynx and lung cancer. The record shows that the Veteran served in Korat, Thailand from March 1967 to August 1967. The Veteran's service personnel records reflect he was a cargo handler while in Thailand, but are otherwise silent for duties that would place him near the perimeter. The Veteran has submitted several statements that while in Korat,Thailand at Camp Friendship, part of his duties required him to be a driver for a Major Brown and a civilian security man. This required him to drive a jeep all over the base, along the fence lines and the perimeter of the base near the 501st field depot looking for missing supplies. He also helped build a softball field and other projects where he had to dig in the ground. The Veteran described being very observant of the dead vegetation around and outside the post which he believed was sprayed by some type of herbicide. He also stated that he used swimming pools and athletic facilities near the perimeter. The Veteran submitted a January 2017 buddy statement from P.F. in support of his claim. P.F. stated he walked guard duty at Camp Friendship, Korat, on the perimeter of the base and met the Veteran. The Veteran would be driving on the perimeter with a Senior Officer and civilian personnel. He stated that herbicides were sprayed on the perimeter to kill all vegetation to better secure the base from enemy forces. He further stated that they worked and lived on and near the perimeter everyday while stationed at Korat, Thailand. (Continued on the next page)   The Veteran's service personnel records clearly indicate that he was stationed at Korat from March 1967 to August 1967. In addition, the Veteran underwent training on Thai driving laws and international road signs. He has also provided lay evidence regarding the circumstances of his service indicating that he worked at or near the base perimeter as part of his regular duties driving officers around the base and other areas of Thailand, which he is competent to report. It is acknowledged that an October 2012 DPRIS response indicates that there was no evidence to confirm tactical herbicide exposure. It did not, however, address exposure to commercial herbicides. The Board finds no reason to find that the Veteran's accounts not credible. His descriptions are consistent with the circumstances of his service. The record shows that the Veteran served in Thailand during the Vietnam Era. Based on the finding above, the Board finds the evidence at least in equipoise regarding whether he was exposed to herbicide agents in service. Further, as he is presumed to have been exposed to herbicide agents, the presumption of service connection for cancer of the larynx and lung cancer attaches. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Therefore, service connection for cancer of the larynx and lung cancer is warranted. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Ko, Associate Counsel