Citation Nr: 20021606 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 14-22 729 DATE: March 26, 2020 ORDER New and material evidence having been received, the claim of service connection for colon cancer is reopened; the appeal is granted to this extent only. New and material evidence having been received, the claim of service connection for liver cancer is reopened; the appeal is granted to this extent only. REMANDED Service connection for colon cancer is remanded. Service connection for liver cancer is remanded. FINDINGS OF FACT 1. In final decisions issued in September 2010 and April 2011, the regional office (RO) denied service connection for colon cancer and liver cancer. 2. The Veteran’s November 2012 statement that he repaired the airplanes that sprayed Agent Orange over Vietnam when stationed in Thailand, that spray from the Agent Orange got on those airplanes, and that he was exposed when repairing those airplanes is new and material evidence regarding his exposure to Agent Orange. CONCLUSIONS OF LAW 1. The September 2010 and April 2011 rating decisions denying service connection for colon cancer and liver cancer are final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received to reopen a claim of service connection for colon cancer. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence has been received to reopen a claim of service connection for liver cancer. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to May 1969. He died in September 2013. The appellant is the Veteran’s surviving spouse who has been named as substitute claimant. This case comes before the Board on appeal from a January 2013 rating decision. The Board previously remanded the claims to reopen in February 2016 to obtain records from the Social Security Administration and from private clinicians. After the available records were obtained, the RO issued a supplemental statement of the case in November 2016. Therein, the RO implicitly found that new and material evidence had been submitted by denying the service connection claims on the merits. New and Material Evidence 1. Whether new and material evidence has been received to reopen a claim of service connection for colon cancer 2. Whether new and material evidence has been received to reopen a claim of service connection for liver cancer By a September 2010 rating decision, claims of service connection for colon cancer and liver cancer were denied. The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. While the Veteran did file petitions to reopen in February 2011, no new evidence or notice of disagreement was received by VA within one year of the issuance of the September 2010 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. By an April 2011 rating decision, petitions to reopen claims of service connection for colon cancer and liver cancer were denied. The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. Nothing further regarding the claim was received until the present claims to reopen in November 2012. No new evidence or notice of disagreement was received by VA within one year of the issuance of the April 2011 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board finds that new and material evidence has been submitted so that the previously denied claims of service connection for colon cancer and liver cancer are reopened. Specifically, in November 2012, the Veteran submitted a statement that, while stationed at Korat Air Force Base in Thailand, he was in daily contact with the perimeter and around the flight line and that he was exposed on a regular basis to the Agent Orange that covered the airframes of plane spraying Agent Orange in Vietnam and elsewhere. The Veteran also stated in December 2012 that he would have skin contact with the aircraft. The Board finds that the Veteran’s November and December 2012 statements constitute new and material evidence as the statements raise possible exposures to Agent Orange that were not previously considered. While the statements themselves may not raise to the level of substantiating exposure to tactical herbicides, the November and December 2012 statements meet the low threshold required to reopen a claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (holding that, for the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed). Therefore, claims of service connection for colon cancer and liver cancer are reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Service connection for colon cancer 2. Service connection for liver cancer Based on the new and material evidence received by VA, an additional medical opinion is needed before adjudicating the merits of the service connection claims. The Veteran’s military occupation specialty included working as an airframe technician, mechanic. See DD 214. Before his death, the Veteran maintained that he serviced aircraft that flew over the Republic of Vietnam and that likely sprayed tactical herbicides. He maintained that he was exposed to Agent Orange through this manner. He also maintained that he worked near the perimeter while stationed at the Korat Air Force Base. The Board notes that an August 2010 medical opinion has already addressed the Veteran’s claim as to a relationship between asbestos exposure and his colon and liver cancers. Further, the RO has already determined that the Veteran did not serve on the perimeter or on the flight line while stationed at Korat Air Force Base. Nonetheless, a medical opinion addressing the Veteran’s potential exposure to tactical herbicides on airplane frames is needed. The Board does not have the expertise to determine in the first instance whether, given the Veteran’s medical history, it is at least as likely that such exposure is related to the Veteran’s colon and liver cancer. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The matters are REMANDED for the following action: Obtain a medical opinion regarding the etiology of the Veteran’s colon and liver cancers. Specifically, the examiner should opine as to whether: (A) It is at least as likely as not that the Veteran’s colon cancer is related to service, to include Agent Orange exposure. (B) It is at least as likely as not that the Veteran’s liver cancer is related to service, to include Agent Orange exposure. A complete rationale should be provided for any opinion rendered. The examiner should specifically address the Veteran’s claimed exposure to Agent Orange from repairing airplane frames that sprayed Agent Orange over the Republic of Vietnam. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. George 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.