Citation Nr: 21041523 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 20-11 144 DATE: July 9, 2021 ORDER As new and material evidence has been received with regard to the previously denied claim for entitlement to service connection for prostate cancer with residuals of leakage, erectile dysfunction, and loose bowels, the claim is reopened. Entitlement to service connection for prostate cancer, with residuals of leakage, erectile dysfunction, and loose bowels, to include as due to herbicide exposure, is granted. Entitlement to service connection for coronary artery disease (CAD), to include as due to herbicide exposure, is granted. FINDINGS OF FACT 1. By a decision entered in January 2003, the Veteran's claim for service connection for prostate cancer was denied; he was advised of the RO's decision and of his appellate rights. 2. The Veteran did not perfect an appeal of the RO's January 2003 decision, nor was any new and material evidence received within a year. 3. New evidence received since the time of the RO's January 2003 decision, when considered with the evidence previously of record, relates to an unestablished fact necessary to substantiate the Veteran's claim for service connection for prostate cancer and raises a reasonable possibility of substantiating that claim. 4. The Veteran was stationed in Thailand, at Nakhon Phanom Royal Thai Air Force Base (RTAFB), during his period of Vietnam Era service. 5. The evidence is at least evenly balanced as to whether the Veteran was exposed to herbicides during his service in Thailand. 6. The Veteran's diagnosed prostate cancer can be presumed to be related to his exposure to herbicides. 7. The Veteran's diagnosed CAD can be presumed to be related to his exposure to herbicides. CONCLUSIONS OF LAW 1. The January 2003 rating decision is final; new and material evidence has been received to reopen the claim for service connection for prostate cancer with residuals. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for prostate cancer are met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for CAD are met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from October 1966 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) from the August 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). SERVICE CONNECTION 1. Whether new and material evidence has been received to reopen the previously denied claim for service connection for prostate cancer Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. See 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. See 38 U.S.C. § 5108. "New" evidence means 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 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. See 38 C.F.R. § 3.156 (a). Service connection for prostate cancer was denied in a January 2003 rating decision. The RO determined that the Veteran had not served in the Republic of Vietnam during the applicable time period such that service connection could be granted based on presumed exposure to herbicides. The Veteran did not perfect an appeal, and new and material evidence was not submitted with respect to the claim within the appeal period. Accordingly, the January 2003 rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. Evidence received since the January 2003 rating decision includes VA treatment records and further details from the Veteran regarding the manner in which he was exposed to herbicides during service. Some of this new evidence is neither cumulative nor redundant of the evidence previously of record, relates to an unestablished fact necessary to substantiate service connection, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). This evidence satisfies the low threshold requirement for new and material evidence and the claim for service connection for prostate cancer is reopened. 2. Entitlement to service connection for prostate cancer, with residuals of leakage, erectile dysfunction, and loose bowels 3. Entitlement to service connection for CAD The Veteran contends that his prostate cancer and CAD are related to his military service. The Board finds that service connection is warranted for both conditions. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. However, service connection may also be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962, and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(c), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. The following diseases are deemed associated with herbicide exposure under VA law: AL amyloidosis, Chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), Multiple myeloma, Non-Hodgkin's lymphoma, Parkinson's disease, early onset peripheral neuropathy, Porphyria cutanea tarda, Prostate cancer, Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(c). The foregoing statutory and regulatory provisions do not establish a presumption of exposure to herbicide agents based on service in Thailand. However, VA has acknowledged that special consideration of herbicide exposure on a factual basis for veterans whose duties placed them on or near the perimeters of certain Thai military bases during the Vietnam Era is required. Specifically, if a veteran served in the U.S. Air Force in Thailand during the Vietnam era at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat or Don Muang RTAFBs as an Air Force security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by the Veteran's military occupational specialty (MOS), performance evaluations, or other credible evidence, herbicide agent exposure should be conceded on a facts-found or direct basis. This allows for presumptive service connection of the diseases associated with herbicide exposure. See 38 C.F.R. § 3.309(e). Throughout the record, and specifically in a May 2018 statement, the Veteran has stated that while he was stationed in Thailand, he spent a significant amount of time along the perimeter of his base, Nakhon Phanom RTAFB. Specifically, the Veteran stated, and his personnel records verify, that he was an aircraft mechanic (crew chief) and spent five to six days per week working on the flight line, which was located approximately 500 feet from the perimeter of the base. The Veteran also stated that he frequently jogged around the perimeter of the base. Additionally, the Veteran stated that his living quarters were only 300 feet from the base perimeter and the aircraft propellers blew dust and debris everywhere. The Veteran also reported that the entire base, including the perimeter, was brown and consisted of dead vegetation. He stated that he witnessed men spraying a substance onto the area around the base. In addition to his statements, the Veteran provided photographic evidence of the Nakhon Phanom RTAFB and the locations where he spent the majority of his time. The Board finds the Veteran's testimony regarding his time spent near the base perimeter credible. Therefore, resolving reasonable doubt in his favor, exposure to herbicide agents at Nakhon Phanom RTFAB on a facts-found basis is established. As the Veteran's exposure to herbicide agents during the Vietnam Era is established on a facts-found basis, and as prostate cancer and CAD are diseases presumptively associated with such exposure, service connection for prostate cancer and CAD is warranted, and the claims are granted. 38 U.S.C. §§ 1110, 1116, 5107(b); 38 C.F.R. §§ 3.307, 3.309. L. STEPANICK Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mountford, Counsel 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.