Citation Nr: 21005015 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 19-08 836A DATE: January 28, 2021 ORDER New and material evidence has been added to the claims file and the claim for service connection for invasive ductal carcinoma, right breast to include as due to exposure to certain herbicides is reopened. Entitlement to service connection for invasive ductal carcinoma, right breast to include as due to exposure to certain herbicides is granted. FINDINGS OF FACT 1. In an unappealed March 2004 rating decision, the RO denied service connection for invasive ductal carcinoma, right breast based on a finding that there was no evidence of in a relationship between the Veteran’s disability and his exposure to certain herbicides. 2. The evidence added to the record since the March 2004 rating decision, when viewed by itself or in the context of the entire record, relates to an unestablished fact that is necessary to substantiate the claim of service connection for invasive ductal carcinoma, right breast. 3. The Veteran’s invasive ductal carcinoma, right breast is at least as likely as not related to his presumed exposure to certain herbicides. CONCLUSIONS OF LAW 1. The March 2004 rating decision that denied service connection for invasive ductal carcinoma, right breast is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. 2. With respect to the Veteran’s claim for service connection for invasive ductal carcinoma, right breast, new and material evidence has been received since the March 2004 denial. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for an invasive ductal carcinoma, right breast due to certain herbicide exposure have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1968 to September 1970. 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). 1. New and material evidence has been added to the claims file and the claim for service connection for invasive ductal carcinoma, right breast to include as due to exposure to certain herbicides The Veteran was denied service connection for invasive ductal carcinoma, right breast in a March 2004 rating decision because there was no evidence a relationship between the disability and his presumed exposure to certain herbicides. 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 March 2019 correspondence from his treating oncologist that his cancer is at least as likely as not related to his presumed exposure to certain herbicides is new in that it was not previously of record. It is also material because it relates to unestablished facts necessary to substantiate the Veteran’s claim for service connection for an invasive ductal carcinoma, right breast. Specifically, due to the prior lack of evidence showing a nexus to the Veteran’s service, this new evidence is material because it relates to an element that was previously not shown. See Shade, supra. Accordingly, the Board finds that new and material evidence has been submitted, and the claim for service connection for an invasive ductal carcinoma, right breast is reopened. 38 U.S.C. § 5108. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110 ; 38 C.F.R. § 3.303 (a). “To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service’-the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Furthermore, service connection can be established through application of statutory presumptions, to include those diseases associated with exposure to certain herbicide agents like Agent Orange. While the record indicates that the Veteran served in Vietnam during his active duty service, the Veteran’s invasive ductal carcinoma, right breast has not been associated with exposure to herbicides for the purpose of presumptive service connection and it is not among the diseases listed in 38 C.F.R. § 3.309(e). Nonetheless, the Veteran is presumed to have been exposed to herbicides, including Agent Orange, while stationed in Vietnam. Thus, he is not precluded from showing that his military service caused his current disability on a direct basis because the Board must consider entitlement to service connection on alternative bases. See Combee, 34 F.3d at 1043. When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 ; 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for invasive ductal carcinoma, right breast to include as due to exposure to certain herbicides. The Board notes at the onset that there is no dispute that the Veteran is presumed to have been exposed to certain herbicides while serving in Vietnam as his military record indicates he served in Vietnam from at least October 1969 to January 1970. Turning to the question of a current disability there is no dispute that the Veteran has a diagnosis of invasive ductal carcinoma, right breast as noted in a July 2015 private treatment record. Thus, the only remaining issue is whether the Veteran’s invasive ductal carcinoma, right breast is associated with his exposure to certain herbicides in Vietnam. On this issue, the Board finds the May 2019 correspondence and attached opinion from the Veteran’s treating oncologist to be the most probative opinion of record. In this report, the Veteran’s physician wrote that the Veteran’s invasive ductal carcinoma, right breast was a result of exposure to Agent Orange. The Board in weighing the probative value of this opinion recognizes the inherent and unique position the Veteran’s treating oncologist has in relation to the history and details of the Veteran’s disease. It is with this understanding that the Board finds that the Veteran’s treating oncologist’s opinion has the most probative value in the claims file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As such, the Board finds that all the components of service connection have been met and service connection for invasive ductal carcinoma, right breast, is warranted. GAYLE E. STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Acosta, Counsel 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.