Citation Nr: A21000711 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 200313-70118 DATE: January 12, 2021 ORDER New and relevant evidence has been submitted; thus, readjudication of the claim of service connection for male breast cancer, to include as due to agent orange exposure, is warranted. Entitlement to service connection for male breast cancer, to include as due to agent orange exposure, is granted. REMANDED Whether new and relevant evidence has been submitted to readjudicate the claim of service connection for skin cancer, to include as due to agent orange exposure, is remanded. FINDINGS OF FACT 1. A January 2019 rating decision denied the Veteran’s claim of entitlement to service connection for male breast cancer due to agent orange exposure; and, a February 2020 decision declined to readjudicate the claim based on new and relevant evidence. 2. The evidence associated with the file since the January 2019 decision is new and relevant and tends to prove or disprove the matter at issue. 3. The Veteran’s male breast cancer is etiologically related to his exposure to agent orange while in service. CONCLUSIONS OF LAW 1. The criteria for readjudicating the claim of service connection for male breast cancer have been met. 38 C.F.R. §§ 3.156 (d). 2. The criteria for service connection for male breast cancer, to include as due to agent orange exposure, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1968 to March 1972. The Appeals Modernization Act (AMA) creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. The AMA became effective on February 19, 2019 and applies to all claims for which VA issues a notice of an initial decision on or after the effective date. 38 C.F.R. § 3.2400(a)(1). The AMA may also apply to claims where the claimant has elected review of a legacy claim under the modernized review system. 38 C.F.R. §§ 3.2400, 19.2. A legacy claim is a claim for which VA provided notice of an initial decision prior to the February 19, 2019 effective date of the AMA modernized review system. 38 C.F.R. §§ 3.2400, 19.2. A claimant with a legacy claim may elect to participate in the AMA modernized review system in one of two ways: First, a claimant with a legacy claim could elect to opt-in to the modernized review system on or after November 1, 2017 as part of the rapid appeals modernization program (RAMP) pursuant to section 4 of Public Law 115-55. 38 C.F.R. §§ 3.2400; 19.2. Second, a claimant with a legacy claim may elect to opt-in to the AMA modernized review system following issuance, on or after the effective date of the AMA, of a VA Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC). 38 C.F.R. §§ 3.2400, 3.2500, 19.2. Thus, an AMA appeal can come before the Board in one of three ways: 1) an appeal of a Rapid Appeals Modernization Program rating decision; 2) an appeal of a rating decision with a notification letter dated on or after February 19, 2019; or 3) a timely appeal of a statement of the case or supplemental statement of the case issued on or after February 19, 2019. 38 C.F.R. § 19.2(d); 38 C.F.R. § 3.2400. In the present case, the Veteran’s claims of service connection for breast cancer and skin cancer originated as legacy claims; however, in August 2018, the Veteran opted into the AMA by filing a RAMP opt-in election form and choosing to have his claims reviewed under the Supplemental Claim lane. The agency of original jurisdiction (AOJ) denied the Veteran’s claims under the AMA in a January 2019 rating decision. However, in January 2020, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of his claims. In February 2020, the AOJ issued the rating decision on appeal, which found that new and relevant evidence had not been received to readjudicate the claims. The Veteran appealed the decision in March 2020 by submitting a VA Form 10182, Decision Review Request, (Notice of Disagreement) (NOD), and by requesting the Direct Review option by the Board. Therefore, the Board must determine whether new and relevant evidence has been received based only on the evidence of record at the time of the January 2019 denial. The Board notes, however, that in his VA Form 10182, the Veteran indicated that he was also appealing the May 2016 decision that denied entitlement to service connection for male breast cancer and skin cancer; however, this decision is not before the Board. This decision was issued prior to the Veteran opting into the AMA. The Veteran timely appealed the decision by filing a notice of disagreement (NOD) on VA Form 21-0958, which is required under the legacy system; however, he did not perfect his appeal which would give the Board jurisdiction over the legacy claim. See 38 C.F.R. §§ 20.201, 3.2400, 19.2 (2018). Rather, the Veteran opted into the AMA as part of the rapid appeals modernization program. The Veteran was notified that his legacy appeal would be withdrawn, and a new decision was issued in January 2019 under the AMA pursuant to his request for the Supplemental Claim lane. Therefore, the May 2016 decision was incorrectly processed under the AMA and is not before the Board. 1. Whether new and relevant evidence has been submitted to readjudicate the claim of service connection for male breast cancer, to include as due to agent orange exposure? Pursuant to the AMA, the provision (38 U.S.C. § 5108) pertaining to readjudicating previously denied claims was amended, and the new regulation went into effect on August 23, 2017. See 131 Stat. 1105 (2017). This provision replaces the new and material standard for reopening claims and applies to supplemental claims. “If new and relevant evidence is presented or secured with respect to a supplemental claim, the Secretary shall readjudicate the claim taking into consideration all of the evidence of record.” 38 U.S.C. § 5108 (a). VA will readjudicate a claim if new and relevant evidence is presented or secured. 38 C.F.R. § 3.156 (d). In this regard, “new evidence” is existing evidence not previously submitted to agency decisionmakers, while “relevant evidence” is evidence that tends to prove or disprove the matter at issue. 38 C.F.R. § 3.2501 (a)(1). The evidentiary record for a supplemental claim includes all evidence received by VA before VA issues notice of a decision on the supplemental claim. For VA to readjudicate the claim, the evidentiary record must include new and relevant evidence that was not of record as of the date of notice of the prior decision. 38 C.F.R. § 3.2501 (b). In this case, a January 2019 rating decision denied service connection for male breast cancer, secondary to agent orange exposure, on the basis that breast cancer was not a disability recognized by VA as being associated with agent orange exposure. A February 2020 rating decision declined to readjudicate the claim for lack of new and relevant evidence. Thus, the question before the Board is whether new and relevant evidence has been submitted since the January 2019 denial that is sufficient to readjudicate the claim? A review of the record shows that new evidence has been submitted since the January 2019 denial. Specifically, the Veteran submitted private treatment records in January 2020. Within those records is a December 2016 treatment record which shows the Veteran was diagnosed with carcinoma of the right breast, and a notation that states “Agent orange exposure with attributed disability.” The Board notes that service connection may be granted on a presumptive basis for certain diseases as due to herbicide exposure for Veterans who served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. 38 U.S.C. § 1116 (a); 38 C.F.R. §§ 3.307 (a)(6)(ii), 3.309(e). Here, the record shows that the Veteran had active duty service in the Republic of Vietnam from July 1969 to July 1970; therefore, he is presumed to have been exposed to agent orange. See 38 C.F.R. § 3.307 (a)(6)(iii) (2018). In addition, although the Veteran’s diagnosed breast cancer is not a disability attributed to herbicide exposure, the claim must nevertheless be reviewed to determine whether service connection can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Considering the above, the Board finds new and relevant evidence has been submitted. The evidence is new since it has not been previously considered by decision makers. The evidence is also relevant as it tends to prove or disprove the matter at issue by suggesting a correlation between the Veteran’s diagnosed breast cancer and his exposure to agent orange. Therefore, readjudication of the claim is warranted. 2. Entitlement to service connection for breast cancer, to include as due to agent orange exposure. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a) (2018). 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. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted on a presumptive basis for certain specified diseases as due to herbicide exposure, provided the disease manifests to a compensable degree within a specified period in a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 U.S.C. § 1116 (a); 38 C.F.R. §§ 3.307 (a)(6)(ii), 3.309(e). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (b). As noted above, the Veteran has a current diagnosis for breast cancer, and he is presumed to have been exposed to agent orange. Thus, the question before the Board is whether the Veteran’s breast cancer is etiologically related to agent orange exposure in service. The AOJ initially denied service connection on the basis that the Veteran’s diagnosed breast cancer was not in the list of diseases under 38 C.F.R. § 3.309 (e) that would warrant service connection on a presumptive basis. However, notwithstanding the presumptive provisions, service connection may still be granted on a direct basis if the evidence shows that the claimed disability was caused by the Veteran’s herbicide exposure. See Combee v. Brown, 34 F.3d at 1043-1044. Notably, agent orange is generally considered a herbicide agent. Here, the record shows the Veteran submitted medical literature in February 2016 which cites studies from the International Agency for Research on Cancer and the journal Occupational and Environmental Medicine that suggests the dioxin in agent orange might be related to male breast cancer. In addition, the Veteran’s private oncologist found that the Veteran’s breast cancer is “more likely to be an ‘exposure cancer,’ not genetic, with Agent Orange being more likely than not a causative agent of exposure.” The oncologist explained that male breast cancer is rare, occurring in only 1 in 100 breast cancers diagnoses, and that many male breast cancers have familial genetic associations with BRCA 1/2 mutations as a causative factor; however, the oncologist noted that the Veteran does not have either of these. Given these findings, the Board concludes that service connection is warranted. The Board finds the medical opinion from the Veteran’s oncologist is probative since it is based on his treatment of the Veteran and it contains clear conclusions supported by a reasoned medical explanation. In addition, the opinion is consistent with the medical literature submitted by the Veteran and there is no other conflicting evidence of record that suggests otherwise. Therefore, the Board finds the preponderance of the evidence weighs in favor of granting the claim, and service connection for male breast cancer is granted. REASONS FOR REMAND 1. Whether new and relevant evidence has been submitted to readjudicate the claim of service connection for skin cancer, to include as due to agent orange exposure? The Veteran’s claim of service connection for skin cancer was denied in January 2019. However, when filing his Supplemental Claim in January 2020, the Veteran also submitted a Statement in Support of Claim where he stated that he was ordering private medical records related to this condition. The Board notes that upon receipt of a substantially complete supplemental claim, VA’s duty to assist in the gathering of evidence is triggered and includes any such assistance that may help secure new and relevant evidence to complete the supplemental claim application. 38 C.F.R. § 3.2501 (c). However, prior to adjudicating the claim in February 2020, VA did not assist the Veteran in the gathering of these records. Therefore, the Board finds a pre-decisional duty to assist error occurred and the matter must be remanded to assist the Veteran in obtaining these records. The matter is REMANDED for the following action: 1. The AOJ should undertake appropriate development to obtain any outstanding private treatment records related to the Veteran’s skin cancer. The Veteran’s assistance should be requested as needed. All obtained records should be associated with the evidentiary record. If the AOJ cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. The AOJ should further develop the claim as necessary, then readjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Laffitte, Associate 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.