Citation Nr: 19123533 Decision Date: 03/28/19 Archive Date: 03/28/19 DOCKET NO. 15-11 109 DATE: March 28, 2019 ORDER The request to reopen a claim of entitlement to service connection for rhinitis is dismissed. The request to reopen a claim of entitlement to service connection claim for peripheral neuropathy of the bilateral lower extremities is dismissed. Entitlement to service connection for a cervical disability to include pain and numbness is dismissed. Entitlement to service connection for a lumbar disability is dismissed. Entitlement to service connection for sleep apnea is dismissed. Whether new and material evidence has been submitted to reopen a service connection claim for prostate cancer to include as due to certain herbicide exposure is granted. Entitlement to service connection for prostate cancer to include as due to certain herbicide exposure is granted. Entitlement to an effective date of March 10, 2003, for service connection for post-traumatic stress disorder (PTSD) on the basis of clear and unmistakable error (CUE) in the May 2003 rating decision that initially denied service connection for this disability is granted. FINDINGS OF FACT 1. On May 1, 2013, at the Travel Board hearing, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through his authorized representative, that a withdrawal of his appeals for entitlement to service connection for a back disability, a neck disability, sleep apnea, and his requests to reopen claims of entitlement to service connection for rhinitis and peripheral neuropathy of the bilateral lower extremities was requested. 2. The Veteran served in the U.S. Air Force at the Royal Thai Air Base in Takhli, Thailand, during the Vietnam Era, and, as mobile control officer, traveled the perimeter. 3. The Veteran’s claim for entitlement to service connection for prostate cancer was denied in a final May 2013 decision. 4. Evidence received since the May 2013 decision is new and material and relates to an element needed to substantiate the Veteran’s claim. 5. The Veteran has a diagnosis of prostate cancer 6. The May 2003 rating decision, which denied service connection for posttraumatic stress disorder (PTSD), erroneously applied a prior version of a regulation concerning PTSD which had been substantively revised, and it is undebatable that but for that error, service connection for PTSD would have been granted. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeals with respect to the issues of entitlement to service connection for a back disability, a neck disability, sleep apnea, and his requests to reopen claims of entitlement to service connection for rhinitis and peripheral neuropathy of the bilateral lower extremities by the Veteran (or his authorized representative) have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The May 2013 rating decision that denied the Veteran’s claim for service connection for prostate cancer was final. 38 C.F.R. § 3.105 (2018). 3. New and material evidence having been received, the Veteran’s claim of entitlement to service connection for prostate cancer is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (2018). 4. The criteria for service connection for prostate cancer are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 5. The criteria for an effective date of March 10, 2003 for service connection for PTSD have been met on the basis of clear and unmistakable error. 38 U.S.C. § 7111; 38 C.F.R. § 3.302(f) (2003); 38 C.F.R. §§ 3.303(d), 20.1400, 20.1403, 20.1404; 38 U.S.C. §§ 7105(c); 38 C.F.R. §§ 3.105, 3.155(b), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Air Force from June 1957 to June 1967. Withdrawal An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his authorized representative. 1. Entitlement to service connection for rhinitis; whether new and material evidence has been submitted to reopen a service connection claim for peripheral neuropathy of the bilateral lower extremities; entitlement to service connection for a cervical disability to include pain and numbness; entitlement to service connection for a lumbar disability; and entitlement to service connection for sleep apnea. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 20.204. In the present case, at the October 2018 hearing, the Veteran, through his authorized representative, has withdrawn his appeal for service connection for service connection for rhinitis, whether new and material evidence has been submitted to reopen a service connection claim for peripheral neuropathy of the bilateral lower extremities; service connection for a cervical disability to include pain and numbness; service connection for a lumbar disability and service connection for sleep apnea, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of service connection for these issues and the appeals as to these issues are therefore dismissed. New and Material Evidence Initially, the Board notes that whenever a claim to reopen is filed, regardless of how it was characterized by the agency of original jurisdiction, the Board must make a de novo determination as to whether new and material evidence has been received. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996) (whether new and material evidence has been submitted must be asked and answered by the Board de novo whenever a claim to reopen is filed). New evidence is defined as existing evidence not previously submitted to agency decision makers. 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Whether new and material evidence has been submitted to reopen a service connection claim for prostate cancer to include as due to certain herbicide exposure The Veteran was denied service connection for a prostate cancer disability in a May 2003 rating decision because there was no evidence that the Veteran’s disability was incurred in service. 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, consideration need not be limited to consideration of 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, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. 38 C.F.R. § 3.156(a); Shade v. Shinseki, supra. The Veteran’s testimony in October 2018 testimony concerning his travel at the perimeter of the Takhli Royal Air Force Base in Thailand is new. It is also material because it relates to unestablished facts necessary to substantiate the Veteran’s claim for service connection for a prostate cancer disability. Specifically, due to the prior lack of evidence showing of treatment during the Veteran’s service, this new evidence is material because it relates to an element that was previously not shown, an in-service incurrence. See Shade, supra. Accordingly, the Board finds that new and material evidence has been submitted, and the claim for service connection for prostate cancer is reopened. 38 U.S.C. § 5108. Thailand – Herbicide Certain diseases, to include prostate cancer, may be service-connected if the Veteran was exposed to an herbicide agent during active service even though there is no record of such disease during service, provided that the requirements of 38 C.F.R. § 3.307(a)(6) are satisfied. 38 C.F.R. § 3.309(e). Specifically, VA’s Compensation & Pension Service (C&P) has issued information concerning the use of herbicides in Thailand during the Vietnam War. See VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (M21-1MR). In a May 2010 bulletin, C&P indicated 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 such, C&P stated that 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. Significantly, C&P stated, “[t]his 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 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. This applies only during the Vietnam Era from February 28, 1961 to May 7, 1975. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10(q). 2. Entitlement to service connection for prostate cancer to include as due to certain herbicide exposure The Veteran contends in his October 2018 testimony to the Board that his duties as a tactical fighter pilot included, at times, to act as a mobile control officer which placed him near or at the perimeter of the among other bases the Royal Thailand Air Bases in Takhli during his time in service. The Veteran’s August 2012 VA treatment record provides evidence that the Veteran is diagnosed with prostate cancer. The Board acknowledges that the Veteran did not serve in a position which VA has conceded as being exposed to herbicides on the base; however, the Board finds that the Veteran’s October 2018 testimony that he would travel to the perimeter as a mobile control officer to be competent and credible evidence of his being near the perimeter. The Board reasons that the Veteran’s knowledge of the base as a tactical fighter pilot provide a particularly specific familiarity with the airbases that he was assigned to, and as such, his testimony on where he was in relation to the perimeter are deemed to be competent. Therefore, the Board finds that based on the Veteran’s competent and credible lay statement regarding his travel around the perimeter of the Takhli Royal Thailand Air Base he meets the criteria for presumption of exposure to an herbicide agent during active military service in Thailand. M21-1MR, Part IV.ii.2.C.10.q. Given that herbicide exposure is now presumed, and prostate cancer is a disease that is presumed related to herbicide exposure under 38 C.F.R. § 3.307 and 3.309(e), service connection is warranted on this basis. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to an earlier effective date prior to September 21, 2010 for the initial grant of service connection for PTSD, to include whether a May 2003 rating decision which denied service connection for PTSD is clearly and unmistakably erroneous (CUE). The issue of CUE is inextricably intertwined with the Veteran’s claim for an earlier effective prior to September 21, 2010 for PTSD as addressed in the Statement of the Case. As such, the Board has appropriately recharacterized the claim to include the CUE allegation. CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. 38 C.F.R. § 20.1403(a). A three-pronged test is used to determine whether CUE was present: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied, (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made, and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). In this matter, the Veteran’s representative asserts that the RO’s May 2003 decision erroneously failed to apply the version of 38 C.F.R. § 3.304(f) that was in effect at that time. Specifically, the regulation governing the award of service connection for PTSD, 38 C.F.R. § 3.304(f), was substantively amended in June 1999. The amended 38 C.F.R. § 3.304(f) no longer required evidence of a “clear diagnosis” of PTSD and replaced it with the criteria that required only “medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) [and] a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred.” See Murray v. Prinicipi, 15 Vet. App. 31, 32 (2001). After reviewing the Veteran’s argument and his claims folder, the Board agrees that the amended version of 38 C.F.R. § 3.304(f), in effect at the time of the May 2003 rating decision, was not applied, and that this error is undebatable. Therefore, the Veteran’s motion for CUE will be granted if it is found that the error is of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. To determine whether the error would have manifestly changed the outcome of the decision, a review of appropriate regulations that were in effect in May 2003 and the contemporary medical evidence in hand at that time is required. At the time of the May 16, 2003 rating decision, service connection for PTSD required medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an inservice stressor; and credible supporting evidence that the claimed inservice stressor occurred. 38 C.F.R. § 3.304(f). At the time of the Veteran’s denial the AOJ had determined that the evidence had established that he Veteran was engaged in combat with the enemy as it was noted his MOS was tactical fighter pilot. Additionally, the Veteran’s service treatment record contains evidence that the Veteran had sought mental health treatment since December 23, 1966 for symptoms of anxiety related to concerns over flying and combat. He was diagnosed at the time with “Adult situational reaction, acute, moderate, manifested by fear of death, […] Stress: Severe. The patient was in a combat area and was flying low level bombing flights over heavily defended territory.” In an April 2003 treatment note from the Veteran’s treating psychiatrist noted that the Veteran had been diagnosed with posttraumatic stress disorder. Considering the foregoing, the Board finds but for the error in applying the no longer applicable "clear diagnosis" element, service connection for PTSD would have been warranted. The inservice stressor concerning the Veteran’s engagement in combat with the enemy is verified based on his combat service. Moreover, the Veteran is shown to have been diagnosed with PTSD in April 2003, and a history of PTSD is noted in his medical records. Finally, the evidence establishes a link between the Veteran's stressor and his PTSD diagnosis. Accordingly, the Board finds had the correct version of 38 C.F.R. 3.304(f) been applied in the May 2003 decision, the outcome of the decision would have been manifestly different. As noted above, the Board determined that there was CUE in a May 2003 rating decision. As such, the Veteran’s claim of service connection is entitled to an earlier effective date than the application date of his later claim to reopen. In the instant case, because of a showing of CUE, the effective date of the Veteran’s service connection for major depressive disorder should be the original date of the receipt of the Veteran’s claim for PTSD, which is March 10, 2003. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Accordingly, an effective date of March 10, 2003, is granted for the award of service connection for PTSD. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Acosta, Counsel