Citation Nr: 21029818 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 15-08 974A DATE: May 17, 2021 ORDER New and material evidence (NME) having been received the petition to reopen a claim of service connection for squamous cell carcinoma of the larynx (throat cancer) as due to exposure to herbicide agents is granted. Entitlement to service connection for throat cancer as due to presumed exposure to herbicide agents is granted. FINDINGS OF FACT 1. A March 2013 rating decision denied service connection for throat cancer due to exposure to herbicide agents, and the Veteran appealed the decision. 2. The Agency of Original Jurisdiction (AOJ) issued a Statement of the Case (SOC), but no Substantive Appeal was received by VA to perfect the appeal. Hence, the March 2013 rating decision became final. 3. The evidence added to the record since the March 2013 rating decision triggered additional assistance to the Veteran, which was rendered. 4. The weight of the evidence of record is in equipoise as to whether the Veteran's throat cancer is causally connected to active service, to include as due to presumed exposure to herbicide agents in the Republic of Korea (ROK). CONCLUSIONS OF LAW 1. The March 2013 rating decision denying service connection for throat cancer due to exposure to herbicide agents is final. 38 C.F.R. §§ 19.20, 19.32, 19.52(b), 20.1103. 2. NME to reopen a claim of entitlement to service connection for throat cancer as due to exposure to herbicide agents has been received, and the claim is reopened. 38 C.F.R. § 3.156(a). 3. Resolving all doubt in the Veteran's favor, the criteria for entitlement to service connection for throat cancer as due to presumed exposure to herbicide agents in ROK have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116B, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(3), (6)(iv), 3.309(e). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS On initial review of this case the Board remanded the case to the AOJ for additional development. See 09/20/2018 BVA Decision. As discussed further below, the Board finds substantial compliance with the remand directive. See Stegall v. West, 11 Vet. App. 268, 271. 1. NME to reopen a claim of entitlement to service connection for throat cancer as due to exposure to herbicide agents in ROK has been received. The appeal is granted solely to that extent. 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, 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 may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Background The Veteran was diagnosed with throat cancer in 2007. See 01/05/2007 Third Party Correspondence. VA received the Veteran's initial claim in 2012. See 11/14/2012 VA 21-526. The AOJ determined that the Veteran's dates of service in ROK did not qualify for consideration of presumed exposure to herbicide agents in ROK. See 03/05/2013 Rating Decision Narrative. An AOJ letter dated that same month notified him of the decision. See 03/11/2013 Notification. In his appeal of the decision, the Veteran referenced his Certificate of Release and asserted that he was in fact in ROK during the requisite time period. See 03/20/2013 VA 21-4138. In the SOC, the AOJ determined that the Veteran's dates of service in ROK qualified him, but he was not assigned to a unit located at or near the DMZ. See 03/25/2013 SOC. The Veteran did not perfect his appeal by submitting a Substantive Appeal in response to the SOC, nor did he submit additional evidence within one year of the March 2013 rating decision, of which he also was notified in March 2013. Hence, it became final. VA received his application to reopen the claim in March 2014. See 03/31/2014 Correspondence. The Board notes that the AOJ received the Veteran's informal application 17 days after the elapse of one year after the date he was notified of the 2013 rating decision, March 11, 2013. Id. The postmark of the date on which it was placed in postal channels is not of record. Hence, it is presumed to have been postmarked 5 days earlier. 38 C.F.R. § 20.110(a). Per a March 2014 calendar [calendar matters are properly subject to judicial notice], even after applying the presumed mailing date, more than one year had elapsed. New and Material Evidence When a claim is disallowed and becomes final, the claim will not be reopened except as provided by applicable regulation. If new and material evidence is presented or secured with respect to a claim that has been disallowed the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence means more than evidence that has not previously been included in the claims folder. The evidence, even if new, must be material, in that it is evidence not previously of record that relates to an unestablished fact necessary to establish the claim, and which by itself or in connection with evidence previously assembled raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The standard of whether new and material evidence raises a reasonable possibility of substantiating a claim is a "low threshold." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include 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. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Discussion Evidence added to the record since the March 2013 rating decision includes information the Veteran submitted noting that the camp where he was assigned in ROK was located within 8 miles from the DMZ. He asserted that his unit was very close to the DMZ, and that his duties as a wheeled vehicle mechanic took him to the DMZ on several occasions during field maneuvers. The Veteran asserted that he remembered one occasion in December 1970 when he accompanied a wrecker to the DMZ and crossed the Han River to recover a fire truck. See 04/03/2014 ID Materials; 04/03/2014 Correspondence. He also submitted Buddy Statements from his brother and Mr. W, a person who stated that he served with the Veteran in ROK. His brother stated that the Veteran wrote him about trips to the DMZ, and Mr. W stated that he personally knew that the Veteran made several trips to the DMZ. See 04/03/2014 Buddy/Lay, 1st and 2nd Entries. Also received was an opinion by the Veteran's treating physician, Dr. S. He opined that of the Veteran's risk factors for throat cancer, which included a history of smoking, the one that stood out to him was exposure to chemicals, to include Agent Orange while in ROK. See 08/04/2014 Medical Treatment-Non-Government Facility. The AOJ determined that NME was not received to show that the Veteran's unit was one for which exposure would be conceded, and that his lay and medical evidence did not constitute NME. See 08/18/2014 Rating Decision Narrative. The Board notes that while the SOC characterizes the issue of the claim as entitlement to service connection, it does not specifically note that the claim was reopened and denied on the merits. Nonetheless, the Board, not the AOJ, must make the final determination. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Board finds that NME was in fact received, as all new evidence is presumed credible. 2. Entitlement to service connection for throat cancer as due to presumed exposure to herbicide agents is granted. Although cancer is a chronic disease for which presumptive service connection is available if it manifests within one year, 38 C.F.R. § 3.307(a)(3), 3.309(a), as noted above, the Veteran does not assert entitlement on that basis, as his cancer did not manifest until decades after his active service. Instead, he asserts that he meets the criteria for presumed exposure to herbicide agents while serving in ROK. Regarding service connection due to AO exposure, VA laws and regulations provide that if a Veteran was exposed to AO during service, certain listed diseases are presumptively service connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). The presumption is rebuttable. 38 U.S.C. § 1113. A veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DoD), operated in or near the DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iv). The DMZ cuts the Korean Peninsula roughly in half, following the geographic 38th parallel north latitude and is approximately 155 miles long and 2.5 miles wide. The DoD has advised that herbicides were not applied within the DMZ but were applied in some adjacent areas. Specifically, DoD has reported that herbicides were applied between April 1968 and July 1969 along a strip of land 151 miles long and up to 350 yards wide along the southern edge of the DMZ north of the civilian control line. The herbicide agents were applied through hand spraying and hand distribution of pelletized herbicides; there was no aerial spraying. DoD also has provided VA a list of the military units that are currently known to have operated in that area during the period that herbicides were applied. See 74 Fed. Reg. 36640, 36641. Discussion As already noted, the Veteran has a currently diagnosed disease that is deemed to be associated with exposure to herbicide agents. See 38 C.F.R. § 3.309(e). Hence, the primary issue for the Board to decide is whether he more likely than not was exposed to herbicide agents. Further, at this stage all evidence must be tested for weight, credibility, and reliability. At his Board hearing before the undersigned, the Veteran's testimony reiterated the assertions presented in his written submissions. He was assigned to the 2nd Infantry Division, 2nd Aviation Battalion, based at Camp Stanton. His MOS was mechanic, and there were times that he was told to go to the DMZ to repair or retrieve a vehicle. His representative asserted that it is plausible that the Veteran went to the DMZ. See 04/20/2018 Hearing Transcript. VA's Adjudication Procedure Manual (M21-1MR) contains a list of service units that have been recognized by the DoD as having served in areas along the Korean DMZ. Exposure to herbicides is to be conceded for Veterans who allege service along the DMZ in Korea and were assigned to certain units between April 1968 and July 1969. See VA Adjudication Procedures Manual "Live Manual" (M21-1) part IV, subpt. ii, ch. 1, sec. H.4. Recognition of being exposed to herbicides "in or near" the DMZ, for an individual veteran, is based on service in one of the particular units acknowledged by DoD and VA as having performed missions near the DMZ during the period herbicides were used. These units were assigned or rotated to areas near the DMZ during that time period. These included infantry, armor, and artillery units. Per 38 C.F.R. § 3.307(a)(6)(iv), a regulatory presumptive period of April 1, 1968, to August 31, 1971, is in effect to account for residual exposure of herbicide agents. See 76 Fed. Reg. 4245 (Jan. 25, 2011). The Veteran served in ROK from June 1970 to July 1971. See 12/14/2012 Military Personnel Record, P. 3. Hence, he meets the dates-of-service part of the criteria. On initial review of this case, the Board noted that a December 2017 deferred rating decision reflected that, based on the Veteran's evidence, a request for verification was to be sent to the JSRRC. See 12/17/2014 Deferred Rating Decision. As there was no indication in the claims file that such a request was sent; or, if so, there was no JSRRC response, the Board remanded with instructions that the AOJ make the inquiry. The AOJ did as directed. The JSRRC report, in part, notes that the unit histories, etc., reviewed reflected that the 2nd Aviation Battalion was tasked in 1970 to provide the Division with aircraft to be used in command and control, air mobility training, reconnaissance and administrative flights. The types of missions varied from short haul flights in the Division Area, to longer flights to such places as Taegu and P'yong Taek, to very demanding and difficult flights into the vicinity of the DMZ. However, the records do not document the use, storage, spraying, or transporting of tactical herbicides to include Agent Orange. See 02/05/2020 Identification Materials. It is evident from the JSRRC report that the mission of the 2nd Aviation Battalion, as its designation suggests, was aviation-centered, perhaps in support of ground troops. The JSRRC report contains no historical evidence related to how the ground elements of the Veteran's unit supported the designated flying mission. The Board has already noted evidence that Camp Stanton was 8 miles from the DMZ. Hence, the Board finds that the evidence of record shows that, solely from the unit's geographical location in ROK, it is not at least as likely as not that the Veteran's place of assignment in ROK entitles him to a presumption of exposure. However, service connection may still be established with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). This is where the Veteran's lay evidence is material on the issue. The Board acknowledges that it must accord full consideration to all competent lay evidence of record, 38 U.S.C. § 5107(b), and that if reliable and accurate, lay evidence may prove a claim. The content of the Buddy Statements was set forth earlier. The Veteran, his brother, and Mr. W. are fully competent to report or testify to what they may have observed or otherwise have personal knowledge of. See 38 C.F.R. § 3.159(a)(2). Although Camp Stanton is not located at the DMZ, there is no evidence of record that contradicts the lay evidence of record that the Veteran's duties placed him at the DMZ, at least occasionally. Hence, the Board finds that the evidence of record is in equipoise. A tie goes to the claimant. See Gilbert, 1 Vet. App. 49, 53-56; see also 38 C.F.R. § 3.102. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. T. Snyder 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.