Citation Nr: 21070489 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-51 366 DATE: November 24, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for prostate cancer, claimed as due to Agent Orange exposure, is granted. New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for hypertension, claimed as due to Agent Orange exposure, is granted. Entitlement to service connection for prostate cancer, claimed as due to Agent Orange exposure, is denied. Entitlement to service connection for hypertension, claimed as due to Agent Orange exposure, is denied. Entitlement to service connection for diabetes mellitus II (DMII), claimed as due to Agent Orange exposure, is denied. FINDINGS OF FACT 1. The claims of entitlement to service connection for a prostate cancer and hypertension were previously denied in a June 2010 rating decision. The Veteran did not perfect an appeal nor submit new and material evidence within one year, and that decision became final. 2. Evidence received since the June 2010 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim for service connection. 3. The Veteran was not exposed to herbicides while in service. 4. The Veteran's prostate cancer was not shown in service or for many years thereafter, and the preponderance of the evidence fails to establish that the condition is etiologically related to service. 5. The Veteran's hypertension was not shown in service or for many years thereafter, and the preponderance of the evidence fails to establish that the condition is etiologically related to service. 6. The Veteran's DMII was not shown in service or for many years thereafter, and the preponderance of the evidence fails to establish that the condition is etiologically related to service. CONCLUSIONS OF LAW 1. As new and material evidence has been received since the issuance of the June 2010 final rating decision, the criteria for reopening the claim for service connection for prostate cancer are met. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. 2. As new and material evidence has been received since the issuance of the June 2010 final rating decision, the criteria for reopening the claim for service connection for hypertension are met. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for prostate cancer, to include as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 4. The criteria for entitlement to service connection for hypertension, to include as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 5. The criteria for entitlement to service connection for DMII, to include as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1968 to February 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). New evidence means existing evidence not previously submitted to agency decision makers. 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. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole, and the Justus presumption of credibility no longer attaches. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Thus, evidence that is sufficient to reopen a claim may not be sufficient to grant the benefit being sought. See generally Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). 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, VA should not limit its consideration to 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, to include by triggering the Secretary's duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). A claim is not reconsidered, however, where VA could not have obtained the records when it initially decided the claim because the records did not exist at that time, or because the claimant failed to provide sufficient information to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or any other official source. 38 C.F.R. § 3.156(c)(2). To establish service connection, 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, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In a June 2010 rating decision, the RO denied service connection for prostate cancer and hypertension because there was no evidence of any complaints of or treatment for these issues while in service, and because the evidence did not show that the Veteran was exposed to Agent Orange during service. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the June 2010 rating decision includes service treatment records (STRs), military personnel records, and private treatment records (PTRs) noting diagnoses of prostate cancer and hypertension. Evidence submitted after the June 2010 rating decision includes an amended DD-214 showing service in Thailand, and lay statements from the Veteran and fellow service members asserting Agent Orange exposure related to their Military Occupational Specialty (MOS). The Board finds that new and material evidence has been presented. The evidence is new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, for all of the above reasons, the Veteran's claims of entitlement to service connection for a prostate cancer and hypertension are reopened. Service Connection 1. Entitlement to service connection for prostate cancer 2. Entitlement to service connection for hypertension 3. Entitlement to service connection for DMII The Veteran alleges that the prostate cancer, hypertension, and DMII are due to exposure to Agent Orange while on active-duty service in Thailand. 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). 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, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A Veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). The Vietnam era is the period beginning on February 28, 1961 and ending on May 7, 1975 for veterans who served in the Republic of Vietnam, and the period beginning on February 28, 1961 and ending on May 7, 1975, in all other cases. 38 U.S.C. § 101(29)(A). Service in the Republic of Vietnam is "service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam." 38 C.F.R. § 3.307(a)(6)(iii). The U.S. Court of Appeals for the Federal Circuit issued an en banc decision in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), which held that the phrase "service in the Republic of Vietnam" includes the 12-nautical-mile territorial waters of the Republic of Vietnam and is not limited to the landmass or inland waterways of that nation, overturning its prior decision in Haas v. Peake, 525 F.3d 1168 (2008); 38 U.S.C. § 116A(d). VA has extended the presumption of service connection for diseases listed under 3.309(e) to Veterans who served in Korea in or near the demilitarized zone (DMZ) between April 1, 1968, and August 31, 1971, or in Thailand at certain designated bases and whose duties placed them on or near the perimeter of the base, where Agent Orange was sprayed. 38 C.F.R. § 3.307(a)(6)(iv); see also Compensation and Pension Bulletin, New Procedures for Claims Based on Herbicide Exposure in Thailand and Korea, 3 (May 2010). The relevant Royal Thai Air Force Bases (RTAFBs) include U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. Herbicide exposure may be conceded on a facts-found basis if a Veteran served on one of the listed RTAFBs during the Vietnam Era if the Veteran served as a security policeman, security dog handler, member of the security police squadron, or otherwise served near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. For Veterans presumed to have been exposed to herbicides, certain enumerated diseases shall be service connected even though there is no record of such disease during service, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The enumerated diseases which are deemed to be associated with herbicide exposure include prostate cancer, hypertension, and DMII. 38 C.F.R. § 3.309(e). First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). May 2017 VA treatment records confirm diagnoses of carcinoma of the prostate, status post radical prostatectomy with partial reconstruction of the proximal urethra, hypertension, and DMII. Accordingly, the first element of service connection is met. Second, the Board finds that there was not an in-service event, injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). A review of the Veteran's STRs does not reveal any complaints of or treatment for the prostate, hypertension, or DMII. As noted above, the Veteran asserts that they were exposed to Agent Orange while on active-duty service in Thailand. In a January 2010 statement, the Veteran asserted that Agent Orange was used around their barracks at Camp Samae San in Thailand. In June 2010, a formal finding of lack of information required to corroborate the Veteran's exposure to Agent Orange was issued as the record at that time did not confirm the Veteran's presence in Southeast Asia. In June 2012, the Veteran's DD-214 was amended to indicate that they served in Thailand. In October 2011, the Veteran submitted lay statements from fellow servicemembers who served together in Thailand. The first servicemember indicated that herbicides were sprayed periodically around the base, the company, and both inside and outside the barracks. They also stated that they were near the U-Tapao RTAFB, worked night shift, and they would see the perimeters being sprayed when returning to the barracks in the morning. The second servicemember also stated that they were near the U-Tapao RTAFB, and that the perimeter of the base was sprayed with defoliant. They also stated that the barracks were fogged on a regular basis for insects. In a September 2017 statement, the Veteran explained that while in Thailand they were a logistics warehouse supervisor, and part of their duties included leaving the base everyday to pick up Thai warehouse workers, passing through the gate on the perimeter of the base. The Veteran asserted that this was the same gate that the Military Police went through, and that they saw Agent Orange being sprayed daily. The Veteran claimed that Agent Orange blows in the wind, exposing everyone, and submitted a photo of a recreational area on the base claiming there was no vegetation there as supporting evidence. The Veteran referred to statements from the Human Resources specialist at their place of employment, and family members who all feel that the Veteran's health issues are due to Agent Orange exposure. The Veteran's DD-214 shows a MOS of Subs Storage Specialist. And a careful review of the claims file finds a June 1969 Letter of Commendation for the Veteran's work supervising other enlisted men and Thai warehousemen laborers in the Cold Storage Plant in Thailand. A May 2010 Memorandum confirms that the Veteran served as a storage specialist at Camp Samae San in Thailand from February 1969 to July 1969. The Board finds the Veteran's statements regarding their duties in Thailand to be competent as they are capable of lay observation. 38 U.S.C. § 1154(a) (2012); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge). However, the Board does not find the statements that the Veteran was exposed to Agent Orange to be supported by the record. Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). There is no evidence of record to support a finding that the Veteran's duties placed them on or near the perimeter of the base where Agent Orange was sprayed. The Veteran has made no assertions that they were near the perimeter, nor is there any evident reason why a Subs Storage Specialist would be working near the perimeter of the base. As noted above, the Veteran has asserted that they left through the gate daily to bring Thai warehousemen to work. While VA does recognize that herbicide agents were used in base perimeter areas, VA does not recognize the use of such herbicides at the entrance to the bases, and neither the Veteran nor their representative have adduced any evidence that herbicide agents were used at the base entrance. In short, there is no indication beyond speculation by the Veteran that herbicide agents were used at the base entrance. Moreover, as noted above, the presumption to herbicide exposure in Thailand is restricted to specific RTAFBs: U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. The record does not indicate that the Veteran was stationed at any of these bases, and the Veteran does not report that they were. Rather, they were at Camp Samae San, which they report was near U-Tapao. Given this, as well as the lack of an explanation as to how the Veteran was at the perimeter of the base, and the unlikelihood that their occupational specialty would involve visitation to the base perimeter, the Board finds that the Veteran was not exposed to herbicide agents at the Thailand base. Accordingly, the Board finds that the second element of service connection is not met, and service connection on a presumptive basis due to herbicide exposure is not warranted. While the Veteran has not established presumptive service connection based upon herbicide exposure, the Board must still consider whether any of the Veteran's prostate cancer, hypertension, or DMII are directly related to service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, the Board finds there is no probative evidence of a nexus between the Veteran's military service and the development of prostate cancer, hypertension, or DMII. The evidence indicates that these conditions did not manifest during service, and the earliest point at which prostate cancer and hypertension appear in the record is 2009, nearly 40 years following service. December 2009 PTRs indicate that the Veteran denied having diabetes. The Veteran's service treatment records do not reference complaints, treatments, or diagnoses of these conditions, and in fact, the report of medical examination at separation in January 1967 listed the Veteran's health as normal except for scars. Significantly, neither the Veteran nor their representative have made any arguments, or presented or identified any medical opinions that support a direct service connection claim. Accordingly, service connection is not warranted for prostate cancer, hypertension, or DMII on a direct basis. The Board has also considered whether the Veteran is entitled to presumptive service connection based on chronic disease or service connection based on continuity of symptomatology. As indicated above, these conditions were not evident in the record until nearly 40 years following separation from service, and the Veteran has not asserted an earlier time of development. As such, there is no evidence, lay or medical, that the disease began in service and continued or that it was diagnosed within the first year following separation from service. See 38 C.F.R. §§ 3.303(b), 3.309. Therefore, the Veteran is not entitled to service connection based on the presumptions in favor of chronic diseases or on the basis of continuity of symptomatology. Accordingly, entitlement to service connection for prostate cancer, hypertension, and DMII is not warranted, and the claims are denied. (Continued on the next page) In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rogos 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.