Citation Nr: 21025644 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-28 066 DATE: April 28, 2021 ORDER New and material evidence having been received, the petition to reopen a claim of entitlement to service connection for soft tissue sarcoma, to include as due to herbicide agent exposure, is granted. Service connection for soft tissue sarcoma is granted. FINDINGS OF FACT 1. A May 2012 rating decision denied the claim of entitlement to service connection for soft tissue sarcoma. The Veteran did not appeal the determination and the May 2012 rating decision became final. 2. Additional evidence has since been received which is not cumulative or redundant of the evidence of record at the time of the May 2012 rating decision and relates to an unestablished fact necessary to prove the claim of entitlement to service connection for soft tissue sarcoma. 3. The Veteran was exposed to herbicide agents while on active duty in Vietnam. 4. Resolving reasonable doubt in the Veteran’s favor, the Veteran has soft tissue sarcoma that is at least as likely as not related to service and exposure to herbicide agents. CONCLUSIONS OF LAW 1. The May 2012 rating decision denying service connection for soft tissue sarcoma is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 2. New and material evidence has been received since the May 2012 rating decision to reopen the claim of entitlement to service connection for soft tissue sarcoma, and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for soft tissue sarcoma are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force from April 1954 to November 1978, including in Vietnam. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2017 rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office. In October, the Veteran testified before the undersigned Veteran’s Law Judge at a hearing. A transcript of this hearing is in the record. New and Material Evidence New and material evidence having been received, the petition to reopen a claim of entitlement to service connection for soft tissue sarcoma, to include as due to herbicide agent exposure, is granted. New and material evidence having been received, the petition to reopen a claim of service connection for soft tissue sarcoma is granted. Once the agency makes a final decision, the agency may consider a claim on the merits only if it receives new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is “new” if it was not previously submitted to agency decisionmakers. Evidence is “material” if, whether by itself or when considered with the record evidence from the prior final decision, it relates to an unestablished fact necessary to prove the claim. “New and material evidence” can be neither cumulative nor redundant of the prior final decision’s evidence and must raise a reasonable possibility of proving the claim. 38 C.F.R. § 3.156(a). The credibility of new and material evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding evidence new and material. Evidence raises a reasonable possibility of proving the claim if it would trigger the agency’s duty to provide an examination in deciding a claim that was not final. Shade v. Shinseki, 24 Vet. App. 110 (2010). The May 2012 rating decision denied the Veteran’s claim for service connection for soft tissue sarcoma because the evidence did not show a current diagnosis for soft tissue sarcoma. At the time of that decision, the evidence of record included the VA records from January 1979 to April 2012, including a September 2011 VA examination, post-service military hospital treatment records from January 1995 to June 2011, and private treatment records from December 2010 to May 2011. The evidence received since the May 2012 rating decision includes evidence related to establishing a current diagnosis for soft tissue sarcoma. This evidence included service treatment records from April 1954 to November 1978, post-service military hospital treatment records from July 2010 to April 2012; VA treatment records from April 2012 to February 2017, including an April 2012 VA medical source statement and a March 2016 VA examination and medical opinion; a statement from his private urologist dated March 2019; and lay statements from the Veteran during his appeal, including the Veteran’s October 2019 hearing testimony. For purposes of determining if this evidence is new and material, the credibility of the testimony is assumed. This evidence is new and material because it relates to an unestablished fact that is necessary to prove the claim. The Veteran provided additional medical and lay evidence related to soft tissue sarcoma and its nexus to an in-service event, disease, or injury. The claim is reopened. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection for soft tissue sarcoma, to include as due to herbicide agent exposure, is granted. The Veteran contends that the Veteran has current soft tissue sarcoma that is related to in-service herbicide agent exposure. VA laws and regulations provide that, if a Veteran was exposed to Agent Orange during service, certain listed diseases, to include soft-tissue sarcoma, are presumptively service-connected if they manifest to a compensable degree at any time after service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. §§ 3.307(a), 3.309(e). This presumption is rebuttable by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). A Veteran, who “served in the Republic of Vietnam” between January 9, 1962, and May 7, 1975, is presumed to have been exposed during such service to Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Veterans who served on the ground in Vietnam from January 9, 1962, through May 7, 1975, are presumed to have been exposed to herbicides during such service. Moreover, the Federal Circuit has held that “service in Vietnam” will not be presumed based upon the Veteran’s receipt of a Vietnam Service Medal. See Haas v. Peake, 525 F.3d 1168, 1196 (2008). The Board concludes that the Veteran has a current disability that is related to service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran served in the Republic of Vietnam from December 1964 to December 1965 during active duty service, as noted in a July 2011 VA memorandum and confirmed by a review of the Veteran’s military personnel records. Given that the Veteran’s service warrants the presumption of exposure to Agent Orange, the Board must now determine whether the Veteran’s diagnosis falls under the presumption set forth in 38 C.F.R. § 3.309(e). Thus, the question becomes whether the Veteran has a current diagnosis of soft tissue sarcoma. On this question there are probative opinions in favor of and against the claim. The Board “may favor one medical opinion over another” if it offers an adequate statement of reasons or bases. D’Aries v. Peake, 22 Vet. App. 97, 107 (2008). The evidence against the claim includes a March 2016 VA medical opinion. The March 2016 VA examiner opined that the Veteran’s skin tumor was less likely than not than not (less than 50 percent probability) soft tissue sarcoma. The VA examiner explained that “there was no supporting evidence in the medical records reviewed that this was a soft tissue sarcoma” and cited a September 2010 VA pathology report and an April 2012 VA medical source statement. The VA examiner did not explain how this conclusion was reached or what medical evidence in this case would preclude a soft tissue sarcoma diagnosis. In order to be entitled to probative weight, a medical opinion must contain not only clear conclusions with supporting data, but also a reasoned explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Board gives this opinion no weight since it contains only data and conclusions. The evidence in favor of the claim includes an April 2012 VA medical source statement. In April 2012, the Veteran’s VA surgeon who operated on the Veteran in July and October 2010 assessed that the Veteran was status post “excision of spindle cell neoplasm” and would “speak with the appropriate people to help determine” if the Veteran’s prior operation could be covered under the VA disability insurance. After consulting with another doctor, the VA surgeon wrote that “the chondroid differentiation present in this tumor makes it likely it is a sarcoma. Although it cannot be known with absolute certainty, [the consulting doctor felt] that in this case the benefit of the doubt should be given to the patient and the tumor classified as a sarcoma.” In other words, that the medical evidence both for and against a certain conclusion was so evenly divided that it was as medically sound to find in favor of such a conclusion as it would be to find against it. The Board gives this medical opinion probative weight because the opinion is from the Veteran’s treating surgeon and this familiar with the medical evidence of record and had also consulted another doctor. That an opining physician has a history of treating a veteran does not automatically entitle that physician’s opinion to more probative weight. However, a treating relationship is a factor that may be considered in assigning weight to a physician’s opinion. See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001). A review of the medical evidence of record tends to support the April 2012 VA surgeon’s medical source statement. For example, in August 2011, a VA tumor board note assessed the Veteran’s tumor as a soft tissue sarcoma. The March 2016 VA medical opinion did not address this VA tumor board note. Upon review of the record, the Board finds the evidence to be at least even as to whether the Veteran’s current soft tissue sarcoma is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for soft tissue sarcoma is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. (Continued on the next page)   The claim is granted. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James Hekel 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. § 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. § 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. § 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. § 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. § 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. § 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. § 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED