Citation Nr: 20021159 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 17-17 161A DATE: March 24, 2020 ORDER New and material evidence is received to reopen the claim of service connection for ankylosing spondylitis; to this extent only the claim is granted. Service connection for myeloma, stage IV is denied. Service connection for prostate cancer, status post prostatectomy is granted. REMANDED Service connection for ankylosing spondylitis. FINDINGS OF FACT 1. An August 1981 rating decision denied the Veteran’s claim for service connection for ankylosing spondylitis. 2. The evidence received since the final August 1981 rating decision is not cumulative or redundant of the evidence of record and raises a reasonable possibility of substantiating the Veteran’s claim for service connection for ankylosing spondylitis. 3. The Veteran does not have a current disability of myeloma. 4. Resolving all doubt in the Veteran’s favor, the Veteran served in active duty in close proximity to the perimeter of Korat Royal Thai Air Force Base, Thailand during the Vietnam era, and as such, service connection for prostate cancer, status post prostatectomy on a presumptive basis is warranted. CONCLUSIONS OF LAW 1. The August 1981 rating decision denying service connection for ankylosing spondylitis is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. 2. New and material evidence has been received to reopen the service connection claim for ankylosing spondylitis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for myeloma, stage IV have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for prostate cancer, status-post prostatectomy have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 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 October 1968 to October 1971. In February 2020, he had a hearing before the undersigned; a transcript is of record. Review the record indicates there has been confusion regarding the claim of service connection for melanoma, a type of skin cancer. In February 2012, the Veteran called to submit a claim of service connection for which the Agency of Original Jurisdiction (AOJ) took down as being myeloma, stage IV, a cancer affecting plasma cells. Subsequently, in April 2012, the Veteran submitted a claim for service connection for melanoma; a claim which the AOJ has not adjudicated. The Board will only adjudicate those issues properly in appellate status at this time. The AOJ has not certified the appeal for service connection for melanoma; rather, the AOJ has certified service connection for myeloma. New and Material Evidence 1. ANKYLOSING SPONDYLITIS The Veteran seeks to reopen his claim for service connection for ankylosing spondylitis. A rating decision is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error where a notice of disagreement or material evidence was not received within one year of notification of the decision. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.300, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 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 Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board must consider the question of whether new and material evidence has been received because it goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no new and material evidence has been offered, that is where the analysis must end. Butler v. Brown, 9 Vet. App. 167 (1996). Thus, the Board’s task is to first decide whether new and material evidence has been received, as opposed to whether or not the evidence actually substantiates the Veteran’s claim. An August 1981 rating decision denied the Veteran’s claim for service connection for ankylosing spondylitis due to a spine disorder pre-existing service that was not shown to be aggravated by active military service. The Veteran was informed of the decision in writing and did not appeal the decision or submit pertinent evidence during the appeal period. Therefore, this rating decision is final. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Since, the August 1981 final rating decision, the Veteran’s wife submitted a lay statement indicating that within one year after military discharge the Veteran experienced extreme back pain that subsequently led to a diagnosis of ankylosing spondylitis. The Board notes that the standard of whether new and material evidence raises a reasonable possibility of substantiating a claim is a “low threshold.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus, 3 Vet. App. at 513. Consequently, new evidence associated with the claims file of the Veteran experiencing an aggravation of back pain within one year of discharge raises a reasonable possibility of substantiating the Veteran’s prior claim. Accordingly, this evidence is also material. As new and material evidence has been received, the claim for service connection for ankylosing spondylitis is reopened. However, the Board finds that additional evidentiary development is required, as discussed in the Remand portion of the decision below. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). For veterans presumed to have been exposed to herbicide agents, certain enumerated diseases, to include multiple myeloma and prostate cancer, shall be service connected even though there is no record of such disease during service, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). 2. MYELOMA, STAGE IV The issue of service connection for myeloma, stage IV was certified to the Board. The question for the Board is whether the Veteran has a current disability. The Board concludes that the Veteran does not have a current diagnosis of myeloma and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). VA treatment records associated with the claims file were reviewed and were absent for any diagnosis of myeloma. The Veteran was sent a duty to assist letter in March 2012, which contained VA Form 21-4142 to provide a release of any private treatment records supporting this claim. Neither the Veteran nor his representative returned this release form for private records. VA does not have access to private records and cannot obtain any without an appropriate release from the Veteran due to healthcare privacy laws. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Review of the claims file indicates that the Veteran has not specifically identified any private provider treating him for myeloma. In an April 2012 statement, he reported that he had received healthcare from the VA since 1976 and they had been treating him for the disabilities he was claiming for the “entire time.” He again reiterated that VA was his main medical provider in a July 2013 telephone call. Consequently, there is no indication that there are outstanding private treatment records pertaining to myeloma. Even though multiple myeloma is a presumptive disease under 38 C.F.R. § 3.309(e), without a current disability there can be no grant of benefits. There is no probative or competent medical evidence indicating that the Veteran has a current diagnosis of myeloma. Without a current disability, there can be no claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (“Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In absence of proof of a present disability there can be no valid claim.”). In sum, the Board finds that the preponderance of the evidence is against this service connection claim, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. PROSTATE CANCER The Veteran contends he was exposed to herbicides while stationed at Korat Royal Thai Air Force Base. Military personnel records reflect service in Thailand from April 1969 to May 1970. VA policy gives special consideration of herbicide exposure on a factual basis to veterans whose duties placed them on or near the perimeters of Thailand military bases during the Vietnam era, to include U-Tapao Royal Thai Air Force Base, Ubon Royal Thai Air Force Base, Nakhon Phanom Royal Thai Air Force Base, Udorn Royal Thai Air Force Base, Takhli Royal Thai Air Force Base, Korat Royal Thai Air Force Base, and Don Muang Royal Thai Air Force Base. 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, performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. VA treatment records show a history of prostate cancer that was treated with a radical prostatectomy. In this case, at the February 2020 Board hearing, the Veteran competently and credibly testified that he was stationed at Korat Royal Thai Air Force Base during the Vietnam era and that he performed duties that took him near the base perimeter. Considering the evidence of record, to include the Veteran’s credible testimony at the Board hearing, the Board finds that the Veteran’s service qualifies for presumed exposure to herbicide agents on a facts-found basis. As prostate cancer is among the disabilities presumed to be etiologically related with herbicide agents, service connection for prostate cancer status post prostatectomy is warranted. See 38 C.F.R. § 3.309(e). REASONS FOR REMAND 4. ANKYLOSING SPONDYLITIS The Board cannot make a fully-informed decision on the issue of ankylosing spondylitis because no VA examiner has opined whether such disorder preexisted service, and if so, whether it was an aggravation of the Veteran’s pre-existing lumbosacral spine disorders during service noted in the June 1968 letter from Dr RWB. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of ankylosing spondylitis. The examiner must opine whether it clearly and unmistakably (undebatable) preexisted the Veteran’s service. If the examiner finds ankylosing spondylitis did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably not aggravated by service. If the examiner finds that ankylosing spondylitis either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner should address the June 1968 letter from Dr RWB in rendering an opinion. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board AD The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.