Citation Nr: 21068671 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 18-45 917A DATE: November 12, 2021 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for bladder cancer. REMANDED Entitlement to service connection for bladder cancer, to include as secondary to herbicide exposure is remanded. FINDINGS OF FACT 1. An unappealed November 2014 rating decision denied service connection for bladder cancer. 2. The evidence received since the November 2014 rating decision is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the Veteran's bladder cancer claim. CONCLUSION OF LAW 1. The November 2014 rating decision denied service connection for bladder cancer is final. 38 U.S.C.§ 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103. 2. The evidence received since the November 2014 rating decision is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the Veteran's bladder cancer claim. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from July 1969 to April 1973, including service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a September 2021 virtual hearing. 1. Whether new and material evidence has been received to reopen service connection for bladder cancer. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 C.F.R. § 5108. "New" evidence means existing evidence not previously submitted to agency decisionmakers. "Material" evidence means existing 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 prior 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). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The provisions of 38 U.S.C. § 5108 require a review of 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. See Evans v. Brown, 9 Vet. App. 273 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). Moreover, 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 one should ask whether the evidence could reasonably substantiate the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Historically, a November 2014 rating decision denied service connection for bladder based on findings it was not shown to have occurred in or caused by service. No additional evidence pertinent to this issue was associated with the claims file within the one-year appeal period. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Accordingly, the November 2014 rating decision is final. The instant claim for service connection for bladder cancer was received in March 2018. The Board acknowledges that the Veteran has presented a new theory of entitlement for his bladder cancer. In particular, he now contends that his bladder cancer is due to his conceded herbicide exposure in Vietnam. The Board notes that a claim based on a new theory of entitlement is not a new claim but constitutes an application to reopen the previously denied claim, and a final denial on one theory is a final denial on all theories. In other words, a new theory of entitlement in and of itself is not new and material evidence. See Boggs v. Peake, 520 F.3d 1330, 1336 (Fed. Cir. 2008) ("[A] new theory of causation for the same disease or injury that was subject of a previously denied claim cannot be the basis of a new claim..."); Robinson v. Peake, 21 Vet. App. 545, 550 (2008); Untalan v. Nicholson, 20 Vet. App. 467, 470 (2006) (holding that a new theory based on evidence of record is not new and material evidence); Perry v. West, 12 Vet. App. 365 (1999); Ashford v. Brown, 10 Vet. App. 120 (1997). Since the November 2014 rating decision, the Veteran has submitted additional evidence. The Veteran testified at the September 2021 virtual hearing that a doctor has informed him his bladder cancer might be related to his herbicide exposure in service. The Veteran is competent to report what his physician reportedly told him. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, as provided above, in determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). This evidence is new, in that it was not previously of record at the time of the November 2014 rating decision. Additionally, the newly submitted evidence is not cumulative or redundant of evidence already of record. Given the standards set forth above in Shade, the Board finds that the additional evidence new and material within the meaning of 38 C.F.R. § 3.156, warranting reopening of the claim of service connection for bladder cancer. REASONS FOR REMAND 2. Entitlement to service connection for bladder cancer, to include as secondary to herbicide exposure is remanded. At the September 2021 hearing, the Veteran testified that a doctor has informed him that his cancer might be related to his herbicide exposure in service. As noted above, the Veteran's service included service in the Republic of Vietnam, and hence exposure to herbicides is conceded. The Veteran is competent to report what a physician reportedly told him. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In light of the evidence presented, the Board finds that the "low threshold" requirement under McLendon v. Nicholson, 20 Vet. App. 79 (2006) is met, and the Veteran should be afforded a VA examination to determine the nature and etiology of his bladder cancer. In addition, the Veteran has established service connection for posttraumatic stress disorder (PTSD) with alcohol dependence, narcotic dependence in sustained remission, and cannabis abuse. It is unclear if there is an etiological relationship between the Veteran's PTSD and his bladder cancer, to include whether the Veteran's bladder cancer was caused or aggravated by his service-connected PTSD with alcohol dependence, narcotic dependence in sustained remission, and cannabis abuse. 38 C.F.R. § 3.310; El-Amin v. Shinseki, 26 Vet. App. 136 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). Such theory of entitlement should be addressed on remand. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Invite the Veteran to submit any medical opinions from his treating physician as to the etiology of his bladder cancer, and particularly the relationship between his bladder cancer and his conceded herbicide exposure and or nicotine dependence. 3. Schedule a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and etiology of the Veteran's bladder cancer. All indicated tests and studies should be conducted, and all findings reported in detail. The examiner is asked to address the following: (a) Whether it is at least as likely as not that the Veteran's diagnosed bladder cancer had its onset in service, or is otherwise related to service, to include his conceded exposure to herbicide agents in Vietnam? (b) Whether it is at least as likely as not that the Veteran's bladder cancer is proximately due to his service-connected PTSD with alcohol dependence, narcotic dependence in sustained remission, and cannabis abuse? (c) Whether it is at least as likely as not that the Veteran's bladder cancer has been aggravated by his service-connected PTSD with alcohol dependence, narcotic dependence in sustained remission, and cannabis abuse? A complete rationale should be given for all opinions and conclusions expressed. The examiner should be advised that using the fact that a given condition is not a disease eligible for presumptive service connection as the rationale for an opinion will render the opinion inadequate. Please note that it is not necessary that the service-connected disability be diagnosed or even service-connected at the time the bladder cancer was incurred to establish service connection, and reliance on this fact will render any secondary opinion inadequate. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Marley, 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.