Citation Nr: 21066767 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 19-37 949 DATE: November 2, 2021 ORDER New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for prostate cancer. Entitlement to service connection for prostate cancer is granted. FINDINGS OF FACT 1. A July 2013 rating decision denied entitlement to service connection for prostate cancer; the Veteran did not appeal this decision, and new and material evidence was not received within one year of the issuance of this decision. 2. More than one year after the issuance of the July 2013 rating decision, new evidence was received that relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for prostate cancer. 3. Prior to his death, the Veteran had a current diagnosis of prostate cancer that had manifested to a degree of at least 10 percent disabling. 4. The Veteran was exposed to herbicide agents during active service in Thailand. 5. The presumption that the Veteran's prostate cancer was incurred by in-service exposure to herbicide agents is not rebutted. CONCLUSIONS OF LAW 1. The July 2013 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received and the criteria for reopening the previously-denied claim for service connection for prostate cancer are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for prostate cancer prior to the Veteran's death are met. 38 U.S.C. §§ 1110, 1113, 1116, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from July 1952 to July 1972, including service in Thailand. He died in March 2017. The appellant is his surviving spouse, and she has been substituted for the Veteran for purposes of processing his claim of entitlement to service connection for prostate cancer to completion. See January 2019 Appeal Notification Letter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In October 2021, the appellant and her daughter testified at a virtual hearing before the undersigned. 1. New and material evidence has been received and the petition to reopen the previously denied claim of entitlement to service connection for prostate cancer is granted. In July 2013, the AOJ denied the claim of entitlement to service connection for prostate cancer. The AOJ explained that the Veteran's prostate cancer could not be directly or presumptively associated with his service, as the evidence did not show and the Veteran was not presumed to have been exposed to herbicide agents (such as those found in Agent Orange) in service. The Veteran did not appeal this determination, and new and material evidence was not received within one year of its issuance. Thus, the July 2013 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final claim may be reopened if new and material evidence is submitted or received. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 U.S.C. § 5108 (as in effect prior to February 19, 2019); 38 C.F.R. § 3.156. In September 2015, the Veteran sought to reopen his claim. In January 2016, he reported that his work as a vehicle operator brought him near the perimeter of Ubon Royal Thai Air Force Base and at times involved working with personnel who serviced aircraft, including the C-123. See January 2016 Correspondence. Moreover, he reported occasional participating in patrolling the perimeter when there was a shortage of personnel. See id.; see also February 2016 Notice of Disagreement. The appellant and her daughter provided additional testimony material this point at the October 2021 Board hearing. Here, the Veteran's statements and the Board hearing testimony are new and material evidence, as they relate to whether the Veteran was exposed to herbicide agents in service. Accordingly, the criteria for reopening are met, Board will consider the merits of the reopened claim. 2. Entitlement to service connection for prostate cancer is granted. The appellant asserts that service connection for prostate cancer is warranted because the Veteran was exposed to herbicide agents during his active service in Thailand. The Board agrees. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection generally requires evidence showing (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Prostate cancer is listed among the diseases presumed to be associated with exposure to herbicide agents (such as those that were found in Agent Orange). 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Thus, if the Board determines that the Veteran was actually or presumptively exposed to herbicide agents in service, and if prostate cancer has manifested to a degree of at least 10 percent disabling, then service connection may be granted based on the presumption that prostate cancer is the result of that in-service herbicide agent exposure. See 38 C.F.R. §§ 3.307, 3.309. However, this presumption of service incurrence may be rebutted by competent medical evidence that a claimed condition is due to an intercurrent injury or disease. 38 C.F.R. § 3.307(d). Veterans who served in the Republic of Vietnam are presumed to have been exposed to herbicide agents in service. Moreover, individuals who served in the Air Force or Air Force Reserve and regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray herbicide agents during the Vietnam era shall be presumed to have been exposed to herbicide agents. See 38 C.F.R. § 3.307(a)(6). The record shows that the AOJ considered direct service connection for prostate cancer, but denied the claim based on a May 2012 VA examiner's opinion that prostate cancer was less likely than not related to the Veteran's suppurative prostatitis in service. See May 2012 VA Examination Report. The appellant does not challenge this determination, and thus the Board will focus on the question of whether prostate cancer is presumptively related to herbicide agent exposure. The appellant does not assert, and the record does not show, that the Veteran had service in the Republic of Vietnam. However, the Veteran reported that his duties included loading, transporting, and unloading personnel from aircraft, to include the C-123, and the Board concedes that this activity is consistent with the places and circumstances of the Veteran's service. See 38 U.S.C. § 1154. However, while the Board is able to verify through the Veteran's personal records that he was a vehicle operator, there is insufficient evidence of record to find that he "regularly and repeatedly operated, maintained, or served onboard C-123 aircraft" to presume that the Veteran was exposed to herbicide agents. However, as discussed below, the evidence shows that the Veteran was actually exposed to herbicide agents. A VA memorandum of record regarding herbicides in Thailand discusses, among other primary sources, a declassified report entitled "Project CHECO Southeast Asia Report: Base Defense in Thailand." See September 2012 VA Memo. The Board takes notice of the full text of this document. See also Euzebio v. McDonough, 989 F.3d 1305 (Fed. Cir. 2021) (holding that the VA is in constructive possession of documents that are relevant and reasonably connected to the claim). The report shows 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. Thus, herbicide agent exposure may be consistent with the places and circumstances of the Veteran's service. See 38 U.S.C. § 1154. The Veteran's service records show that he served as a Vehicle Operator at Ubon Royal Thai Air Force Base in 1970 and 1971. See Personnel Records; Service Treatment Records. He submitted a statement that he transported troops near and across the base perimeter, and occasionally would be assigned to work patrols when others were unavailable. See January 2016 Correspondence. At the Board hearing, the appellant testified that the Veteran sent paintings to her that were commissioned off base as further proof of his regular travel to the base perimeter. Here, the probative evidence establishes that the Veteran was at least as likely as not exposed to herbicide agents during his service. His regular presence at the perimeter of the Ubon Royal Thai Air Force Base is consistent with the circumstances of his service, as reflected in official service records, his lay testimony, and the lay testimony at the Board hearing. In this regard, the Veteran's competent and credible statements of the places and circumstances of his service establish that his duties regularly put him near or at the base perimeter, such as when driving troops across the perimeter and assisting in patrol duties. The Board emphasizes that there is no contradictory evidence of record, and thus the evidence is in favor of the claim. Thus, as official records establish the use of herbicide agents on the perimeters of the Ubon Royal Thai Air Force Base, and given the competent and credible reports of his frequent presence at the perimeter of that base during a period when herbicide agents were used, it is at least as likely as not that the Veteran was exposed to herbicide agents during his Vietnam-era service in Thailand. Additionally, the evidence does not show that the Veteran's prostate cancer was due to an intercurrent injury. While the May 2012 VA examiner opined that the Veteran's prostate cancer was less likely than not due to prostatitis in service, the examiner did not establish or suggest any etiology or intercurrent cause or risk factor. Moreover, the May 2012 VA examination report establishes that the Veteran's prostate cancer required hormonal therapy, and thus prostate cancer manifested to 100 percent disabling under 38 C.F.R. § 4.115b, Diagnostic Code 7528. Thus, as the Veteran's in-service exposure to herbicide agents has been established, and there is no affirmative evidence of record showing an intercurrent etiology for his prostate cancer, and prostate cancer manifested to a degree of at least 10 percent disabling, the Board concludes that the criteria for service connection for prostate cancer prior to the Veteran's death are met. Accordingly, the appeal is granted. The appellant is advised that the AOJ will issue a rating decision assigning the effective date of service connection and initial rating. If she disagrees with the rating or effective date assigned, she should consult with her representative about seeking review of that decision by filing the appropriate VA form. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.M. Badaczewski, 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.