Citation Nr: 21041821 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 18-40 791 DATE: July 10, 2021 ORDER New and material evidence having been received, the application to reopen the claim of service connection for prostate cancer is granted. Entitlement to service connection for prostate cancer is granted. FINDINGS OF FACT 1. A December 2012 rating decision denied service connection for prostate cancer; the Veteran did not appeal, and VA did not receive new and material evidence within one year after notice of the decision. 2. Since the last final denial in December 2012, new and material evidence related to the issue of service connection for prostate cancer has been received. 3. Resolving reasonable doubt in the Veteran's favor, the Veteran served within the Korean DMZ and is therefore presumed to have been exposed to herbicide agents during his active military service. 4. The Veteran's diagnosed prostate cancer is presumed to be due to herbicide agent exposure at the Korean DMZ during his service. CONCLUSIONS OF LAW 1. The December 2012 denial of service connection for prostate cancer became final. 38 U.S.C. § 7105; 38 C.F.R. § 3.104. 2. New and material evidence has been received to reopen the previously denied claim of service connection for prostate cancer. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The criteria for service connection for prostate cancer have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1970 to March 1972, to include service in South Korea from February 1971 to March 1972. This matter is on appeal to the Board of Veterans' Appeals (Board) from a November 2017 rating decision. A hearing was held by the undersigned Veterans Law Judge in May 2021. 1. New and material evidence Regardless of the RO's actions, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 to address the question of whether new and material evidence has been received to reopen the claims for service connection. This matter goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Where a claim has been finally adjudicated, a claimant must present new and material to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); see also Wakeford v. Brown, 8 Vet. App. 239 -40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA's duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Id. at 117-20. The December 2012 rating decision denied the claim because there was no evidence the Veteran served within the Korean DMZ as his assignment with the 125th Medical Detachment, located at Camp Red Cloud in Uijongbu, was not on the VA or Department of Defense (DoD) approved list of units operating in an area in or near the Korean DMZ. When the Veteran filed a claim to reopen in March 2017, he included several new pieces of evidence not previously of record, including a map index of VA and DoD unit listings admitted to being in exposure areas (which included Camp Red Cloud where 125th Medical Detachment was located), and lay statements from the Veteran and his wife, who was also in Korea at the time, recalling the Veteran's participation in a field exercise at or near the DMZ. This evidence is both new and material, as it raises a reasonable possibility of substantiating the Veteran's claim that he served in the Korean DMZ so as to warrant service connection on a presumptive basis through herbicide agent exposure. Thus, new and material evidence having been submitted, the claim is reopened. 2. Service connection As stated above, the Veteran contends that he was exposed to herbicide agents, namely Agent Orange, while serving at or near the Korean DMZ, which caused his subsequent diagnosis of prostate cancer in 2008. Specifically, his duties as an ambulance driver for the 125th Medical Detachment required him to routinely transport patients in the surrounding area of Camp Red Cloud, which is approximately 15-20 miles from the DMZ. Additionally, he contends he participated in a field exercise setting up field medical tents in the DMZ, during which he slept on the ground and would have had direct contact with Agent Orange. Presumptive service connection on the basis of exposure to certain herbicide agents is warranted where a veteran sustained exposure to such herbicide agents during active military, naval, or air service, and subsequently manifested a specific disease, including prostate cancer, to a degree of 10 percent within a specified period. See 38 U.S.C. § 1116 (a); 38 C.F.R. §§ 3.307 (a)(6), 3.309 (e). 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 DoD, operated in or near the Korean 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. See 38 C.F.R. § 3.307 (a)(6)(iv); 38 C.F.R. § 3.814 (c)(2). The DoD has provided VA with a list of the military units currently known to have operated in the affected DMZ area during the period that herbicide agents were applied, between April 1, 1968 and August 31, 1971. If the veteran is found to have experienced herbicide agent exposure during active military service, then certain diseases, including prostate cancer, shall be service-connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307 (a)(6)(iv) are met, provided the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307 (d) are also satisfied. See 38 C.F.R. § 3.309 (e). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall afford the claimant the benefit of the doubt. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.102, 4.3. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence weighs against the claim, in which case the claim must be denied. See 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). In the Veteran's case, service records confirm he was assigned to the 125th Medical Dispensary/Detachment, Eighth Army and stationed in Korea. A DPRIS search found that the 1971 unit records submitted by the 125th Medical Detachment were unable to be located; however, the 125th Medical Detachment was located at Uijongbu, South Korea at that time. There was no record of use, storage, spraying, or transportation of herbicides, and the records did not document any specific duties performed by the 125th Medical Detachment unit members on or near the DMZ. The 125th Medical Detachment is not on the DoD's list of units known to have operated in the affected DMZ area during the applicable time, though the Veteran points out in his VA Form 9 that the headquarters of the Second Infantry was also at Camp Red Cloud where he was located. In August 2019 correspondence, the Veteran explained that the 125th Medical Dispensary, Eighth Army, included the Seventh and Second Infantry divisions, which are both listed to be presumed exposed to Agent Orange. In an April 2017 VA examination for the Agent Orange registry, the staff physician noted that Uijongbu was 15 miles from the DMZ, and, thus, found that the Veteran was "at the DMZ properly." As stated above, the Veteran has explained in his hearing and previous correspondence that he was an ambulance driver while assigned to the 125th Medical Dispensary. He explained that in performing his duties, he would routinely drive to different areas in the region transporting sick or injured patients. He also recalled participating in a field exercise setting up medical tents near the border of North Korea in Spring of 1971 for one to two weeks. While the field exercise is not reflected in the available service records, the Veteran's wife submitted a statement corroborating his recollection. The available evidence establishes that the Veteran was assigned to the 125th Medical Dispensary/Detachment, stationed at Camp Red Cloud in Uijongbu, between April 1, 1968, and August 31, 1971 which is located approximately 15-20 miles from the DMZ. The Board finds the Veteran's lay statements reporting his travel at and near the Korean DMZ to be both competent and credible, because they convey matters within his personal knowledge and are otherwise consistent with the nature and circumstances of his service. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). As a member of a medical unit, it is reasonable to presume that his duties might include transporting sick or injured soldiers in the area or setting up medical tents in nearby locations, and the Board has no reason to question the veracity of his statements. Further, as Camp Red Cloud is only approximately 15 miles from the DMZ, it would be reasonable to presume that these duties brought him into, or in very close proximity to, the DMZ. Thus, the evidence does not expressly confirm that the Veteran set foot on the ground at the Korean DMZ, and it is unclear whether his unit was a part of the Second Infantry as suggested by the Veteran. However, when considering the totality of the circumstances surrounding the nature of the Veteran's service and resolving all reasonable doubt in his favor, the Board finds that the evidence is in relative equipoise as to whether it is at least as likely as not that the Veteran was present at the Korean DMZ during the course of his active military service. See 38 C.F.R. § 3.102. Therefore, the Board finds that a presumption of herbicide agent exposure is warranted in this case. See 38 C.F.R. § 3.307 (a)(6)(iii). Accordingly, in light of the Veteran's diagnosis of prostate cancer, as well as his presumed exposure to herbicide agents during service, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence of record is at least in relative equipoise regarding whether presumptive service connection as incident to herbicide agent exposure for prostate cancer is warranted in this case. See 38 C.F.R. §§ 3.307 (a)(6), 3.309 (e). The Veteran's claim is granted. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Carroll, Associate 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.