Citation Nr: 21005571 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 15-37 463 DATE: February 2, 2021 ORDER New and material evidence having been received, a claim of entitlement to service connection for prostate cancer due to herbicide exposure is reopened. Entitlement to service connection for prostate cancer due to herbicide exposure is granted. REMANDED Entitlement to service connection for skin cancer due to herbicide exposure is remanded. FINDINGS OF FACT 1. An unappealed March 2009 rating decision declined to reopen a claim of entitlement to service connection for prostate cancer due to herbicide exposure. 2. Evidence regarding the Veteran’s prostate cancer claim received since the March 2009 rating decision is new and material in that it is not cumulative, was not previously considered by decision makers, and raises a reasonable possibility of substantiating the claim. 3. Military personnel records reflect that the Veteran served in the United States Air Force in Thailand from May 1970 to November 1971 as a Freight Traffic Specialist at Takhli Royal Thai Air Force Base and Nakhon Phanom Royal Thai Air Force Base. 4. The evidence, including credible lay statements consistent with the facts and circumstances of the Veteran’s service, persuasively suggests that his duties took him near the base perimeter at facilities where herbicides were sprayed in Thailand. 5. The record reflects that the Veteran has a diagnosis of prostate cancer. CONCLUSIONS OF LAW 1. The March 2009 rating decision that declined to reopen a claim of entitlement to service connection for prostate cancer due to herbicide exposure is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been presented to reopen the claim of entitlement to service connection for prostate cancer due to herbicide exposure. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for prostate cancer due to herbicide exposure in service are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Air Force from June 1968 to June 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran submitted a notice of disagreement (NOD) in March 2015. A statement of the case (SOC) was issued in August 2015. The Veteran perfected a timely substantive appeal via VA Form 9 in September 2015. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in December 2020. A transcript of the hearing is of record. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for prostate cancer due to herbicide exposure. The claim of entitlement to service connection for prostate cancer was previously denied, and the Veteran seeks to reopen this claim. In general, RO rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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(a). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The credibility of the evidence is presumed for the purpose of reopening, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). 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, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. With respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the service connection claim. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. The Veteran’s original claim for service connection for prostate cancer was denied in a June 2004 rating decision, on the basis that the condition did not have its onset in service and was not shown to be directly linked to service. Presumptive service connection was denied because the Veteran did not serve in Vietnam. Service in Thailand was noted. The Veteran did not appeal that decision. Accordingly, the denial is final. 38 U.S.C. § 7105(c). In October 2006, the Veteran requested to reopen the claim. He maintained that he was exposed to herbicides during his service in Thailand. A March 2009 rating decision continued the denial. The Veteran did not appeal that decision. Accordingly, the denial is final. 38 U.S.C. § 7105(c). The evidence of record at the time of the March 2009 rating decision included the Veteran’s service treatment records (STRs), post-service private medical records, military personnel records, statements from the Veteran, and a May 2004 VA examination. Evidence received since the March 2009 rating decision includes additional private medical treatment records, VA examination reports, photographs, and statements from the Veteran, including his testimony at the December 2020 Board hearing. This evidence was not previously on file at the time of the March 2009 decision; thus, it is new. The Veteran’s statements are material because they bear directly on the issue of exposure to herbicide agents, which is one of the reasons that the claim was previously denied. At his December 2020 hearing, he provided further details on his duties taking him near the perimeter of Thailand bases where herbicide agents were deployed. Thus, the new evidence relates to an unestablished fact necessary to substantiate a claim of entitlement to service connection for prostate cancer, and it raises a reasonable possibility of substantiating the claim, particularly when considering the low threshold for reopening a claim as set forth in Shade, supra. Accordingly, the claim of entitlement to service connection for prostate cancer is reopened. See 38 U.S.C.§ 5108; 38 C.F.R. § 3.156(a). 2. Entitlement to service connection for prostate cancer due to herbicide exposure. The Veteran claims entitlement to service connection for prostate cancer due to in-service herbicide exposure while serving in Thailand. Service personnel records indicate that he served in Thailand from May 1970 to November 1971 at Takhli Royal Thai Air Force Base and Nakhon Phanom Royal Thai Air Force Base as a Freight Traffic Specialist. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a). A veteran who is exposed to Agent Orange or other herbicides during service and develops certain diseases, such as prostate cancer, will be service connected for such disorder. 38 C.F.R. § 3.309(e). In this case, the diagnosis of prostate cancer is not in dispute. Thus, if exposure to herbicides is established, service connection would be warranted. VA has determined that special consideration of herbicide exposure on a factual basis should be extended to Veterans whose duties placed them on or near the perimeters of Thailand military bases. In his written statements and testimony at a Board hearing, the Veteran described his job classification of Freight Traffic Specialist with daily duties including driving to all areas of the base and working on the flight line loading and unloading aircraft in close proximity of the base perimeter. This is consistent with performance reports in his military personnel records describing his duties as “loading/unloading vehicles; prepares shipping documents; types transportation control and movement documents; checks inbound and outbound shipments to insure quantity received.” The RO was unable to verify the Veteran’s alleged herbicide exposure. However, the Veteran has provided personal testimony and photographic evidence that he was stationed at Takhli and Nakhon Phanom Royal Thai Air Force Bases in Thailand. He has labelled photographs showing himself and aircraft at these bases, consistent with his military personnel records. The Board finds no reason to doubt that these photographs are genuine. Likewise, the Veteran’s statements and description of his duties to include working near the perimeter of the bases are consistent with his military personnel records. Therefore, after resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran was exposed to herbicides during his service. As the Veteran was exposed to herbicides during service and now has prostate cancer, service connection for this condition is warranted. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); 38 C.F.R. § 3.309(e). REASONS FOR REMAND 1. Entitlement to service connection for skin cancer due to herbicide exposure is remanded. Private treatment records document a history of basal cell carcinoma. As explained above, the Board finds that he was exposed to herbicides during his service at Takhli and Nakhon Phanom Royal Thai Air Force Bases in Thailand. Therefore, exposure to herbicides in service is conceded. However, the Board cannot make a fully-informed decision on this issue because no VA examiner has opined whether the Veteran has a current diagnosis that is etiologically related to his service. According, the claim is remanded for a VA examination to obtain a medical opinion as to the etiology of any skin cancer. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination and obtain an opinion from an appropriate clinician regarding whether any skin cancer is at least as likely as not (50 percent or greater probability) etiologically related to his service, to include conceded herbicide exposure. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jamison, E. 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.