Citation Nr: 21007358 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-19 805A DATE: February 9, 2021 ORDER The petition to reopen the previously denied claim for service connection for prostate cancer is granted. REMANDED Entitlement to service connection for prostate cancer is remanded. FINDING OF FACT An unappealed September 2013 rating decision denied service connection for prostate cancer; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. CONCLUSION OF LAW The September 2013 rating decision denying the claim for service connection for prostate cancer is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.156 (a), 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1966 to February 1970. This case comes before the Board of Veteran’s Appeals (Board) on appeal of a March 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a September 2020 Board hearing before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. Reopening Previously Denied Claims A claim that has been denied in an unappealed Regional Office (RO) decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). In establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of whether the RO found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Whether new and material evidence has been received to reopen the previously denied claim for service connection for prostate cancer. The Veteran seeks service connection for prostate cancer. The Board concludes that a September 2013 rating decision denying the claim for service connection for prostate cancer is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103. The September 2013 rating decision denied the claim for service connection for prostate cancer due to exposure to Agent Orange because the evidence did not show the condition was incurred in or aggravated by military service, and the evidence did not show complaints, treatment, or diagnosis for prostate cancer in service. It noted that the required service in Vietnam was not shown, nor was there evidence of exposure to herbicides during military service. A September 2013 letter notified the Veteran of this decision and how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, this decision became final. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.201, 20.302, 20.1103. In August 2014, VA new evidence regarding the Veteran’s claim for service connection for prostate cancer. See VA 21-4138 (August 2014). VA construed this as a request to reopen the claim for service connection for prostate cancer. Evidentiary submissions received since that prior final disallowance includes new and material evidence. Specifically, the Veteran’s sworn September 2020 testimony coupled with the article, “Occupational Pesticide Exposures and Cancer Risk, a Review,” received by VA in July 2020 satisfies the requirement for new and material evidence. It is new because this evidence was not previously before adjudicators. It is material because the article suggests a relationship between chemicals in every major functional class of pesticides including insecticides, herbicides, fungicides, and fumigants, with an array of cancer sites. The recent evidence cures a prior evidentiary defect. Therefore, new and material evidence has been received. 38 C.F.R. § 3.156(a). Accordingly, the petition to reopen is granted. REASONS FOR REMAND In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. Entitlement to service connection for prostate cancer The Veteran contends that prostate cancer is due to exposure to herbicide agents while he was stationed at Clark Air Force Base (Clark AFB). He argues that he “know[s] for a fact that Agent Orange was used” at this location and therefore, his exposure to herbicide agents should be conceded by VA. See VA 21-4138 (March 2015); see also Hearing Transcript (September 2020). He testified that he patrolled or secured areas where he believes herbicide agents were used; he saw vegetation sprayed with a substance, and that it was alive one day and dead another day; he denied specific knowledge of the substance sprayed, but reported seeing 55 gallon drums; he could not recall the color of the barrel and denied knowledge of their specific contents; he reported working on the flight line near C-123 aircraft and indicated that he guarded the aircraft at a distance of about 20 feet. Id. At his hearing, the Veteran confirmed his contention was that developed prostate cancer many years after service due herbicide agent exposure while he was at Clark AFB given his belief of herbicide agent exposure at Clark AFB and because he was diagnosed earlier than most folks who are diagnosed with prostate cancer. See Hearing Transcript. Following the hearing, the Veteran’s representative submitted a written brief asking that the Board consider the Veteran reports of exposure to herbicide agents in service and specifically that: (1) The Veteran served as a Military Policeman at Clark Air Base in the Philippines where his main duty guarding the flight line; (2) His particular area of responsibility was near the Petroleum Storage Area where there were hundreds of barrels stored although the Veteran did not know their contents; and (3) C-123 aircraft were present and these were the aircraft used to spray Agent Orange and other chemical defoliants in Vietnam. Although the Veteran has submitted evidence in support of his appeal, it is inadequate to decide this matter. The article provided by the Veteran, obtained from an internet website, indicates that hazardous chemicals were stored on Clark AFB and that occupational exposure to certain pesticides pose a cancer risk. See Correspondence (March 2015) and Medical Treatment Record (July 2020). However, this does not indicate whether the Veteran had actual exposure to herbicide agents or other toxins while at Clark AFB. Further, although the record contains a favorable medical opinion, it is inadequate to decide the appeal. The statement from Dr. T.G. indicating that “[i]t is possible that [the Veteran] was exposed to Agent Orange during his military career and has contributed to his prostate cancer diagnosis and ongoing treatment.” See Medical Treatment Record (September 2020). The Board finds this statement is inadequate for adjudicative purposes as it is speculative in nature, employing the language “possible,” and relies entirely on history reported by the Veteran. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (holding that there was a plausible basis for the Board’s decision that a disability was not incurred in service where even the medical evidence favorable to the appellant’s claim did little more than suggest the possibility that the veteran’s condition might have been caused by an in-service event); see also Swann v. Brown, 5 Vet. App. 229, 233 (1993) (observing that a medical opinion premised upon an unsubstantiated account is of no probative value and does not serve to verify the occurrence(s) described). In this case, the seminal question that must be answered, as a threshold matter, is whether the Veteran had herbicide agent exposure while on active duty at Clark AFB as alleged here. To answer, this question the Board finds that remand is necessary to attempt to verify the report through official sources. The record does not reflect that VA has fully attempted to verify the presence of herbicide agents, including Agent Orange, at Clark AFB during the time period that the Veteran was assigned there. While a memorandum of record (See VA Memo (July 2013)) indicates that efforts were undertaken to verify the alleged exposure, this memorandum does not indicate any inquiry with Defense Personnel Records Information Retrieval System (DPRIS) or the Joint Services Records Research Center (JSRRC) to research whether Agent Orange was stored at the site as alleged. Therefore, to ensure that VA has met its duty assist, remand is necessary. The matters are REMANDED for the following action: Attempt to verify the Veteran’s asserted in-service exposure to herbicide agents and/or other chemical agents at Clark AFB, to include whether herbicide agents were stored at that location, between August 1966 and March 1968. If more details are needed, contact the Veteran to request the information. If there is still insufficient information to verify exposure to herbicide agents, issue a formal finding memorandum outlining the steps taken to assist the Veteran and notify the Veteran of VA’s inability to verify the reported in-service exposure. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Edwards 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.