Citation Nr: 18139643
Decision Date: 09/28/18	Archive Date: 09/28/18

DOCKET NO. 14-25 007A
DATE:	September 28, 2018
ORDER
New and material evidence having been submitted, the petition to reopen the claim for service connection for prostate cancer, to include as due to herbicide agent exposure, is granted.
Entitlement to service connection for prostate cancer, to include as due to herbicide agent exposure, is granted.
REMANDED
Entitlement to service connection for a heart condition, to include as due to herbicide agent exposure, is remanded.
FINDING OF FACT
1. A March 2009 rating decision denied the Veteran’s claim for service connection for prostate cancer; he was advised of the RO’s decision, and his appellate rights.
2. The Veteran did not initiate an appeal of the RO’s decision within one year; nor was new and material evidence received within in a year.
3. Additional evidence received since the RO’s March 2009 decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for the prostate cancer disability, and raises a reasonable possibility of substantiating the claim.
4. The Veteran’s ship was anchored in Vietnam’s close coastal waters for extended periods, and he has submitted a statement indicating that he went ashore; because there is evidence that members of the crew went ashore regularly, he is presumed to have been exposed to herbicides in service.
5. The Veteran has been diagnosed with prostate cancer.
CONCLUSION OF LAW
1. The RO’s March 2009 rating decision denying service connection for prostate cancer is final. 38 U.S.C. §§ 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103.
2. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for prostate cancer. 38 U.S.C. § 5108; 38 C.F.R. § 3.156.
3. The criteria for service connection for prostate cancer have been met. 38 U.S.C. §§ 1101, 1110, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309(e).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from July 1968 to May 1972. The Veteran testified before the undersigned Veterans Law Judge during a June 2018 hearing. This matter is on appeal from a December 2012 rating decision.
New and Material Evidence
Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. 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 decisionmakers. 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). 
For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 
Regardless of the AOJ’s actions, given the previous unappealed denial of the claims on appeal, 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, 1383 (Fed. Cir. 1996).
Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for prostate cancer, to include as due to herbicide agent exposure.
In the present case, the RO, by a decision entered in March 2009, denied the Veteran’s claim for service connection for prostate cancer on grounds that the evidence failed to show that the condition was incurred or caused by active duty service, including herbicide agent exposure. The Veteran did not file a notice of disagreement. As a result, the decision became final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 
In October 2012, the Veteran submitted a new claim for entitlement to service connection. Also, in June 2018 he provided testimony before the undersigned Veterans’ Law Judge and provided an article addressing “Blue Water Vietnam Veterans” and Agent Orange exposure. 
The above evidence was not before adjudicators when the Veteran’s claim was last denied in March 2009, and it is not cumulative or redundant of the evidence of record at the time of that decision. It also relates to an unestablished fact necessary to substantiate the claim for service connection and raises a reasonable possibility of substantiating the claim. Accordingly, the prostate cancer claim is reopened.
Prostate Cancer
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a).
Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. See 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). If a veteran was exposed to an herbicide agent during active service, certain enumerated diseases, including prostate cancer, shall be presumptively service-connected even where there is no record of such disease during service, provided that the disease is manifested to a compensable degree as set forth in 38 C.F.R. § 3.307, and the rebuttable presumption provisions of 38 C.F.R. § 3.307 are met. See 38 C.F.R. § 3.309 (e); see also 38 C.F.R. § 3.307 (a)(6)(ii) (providing that with the exception of chloracne or other acneform disease, porphyria cutanea tarda, and early onset peripheral neuropathy, the diseases listed in 38 C.F.R. § 3.309 (e) must be manifest to a degree of 10 percent or more at any time after service).
Service in Vietnam includes not only service on land, but also service on ships that sent crew members ashore when the claimant was stationed aboard the ship at the time. See 38 C.F.R. § 3.307 (a)(6)(iii); see also VA Adjudication Manual, M21-1, part IV, Subpart ii, Chapter 1, Section H, para. 2(f). Exposure to an herbicide can be conceded if there is evidence which shows that the Veteran’s ship sent crew members ashore during the time the Veteran was stationed aboard the ship, provided that the Veteran submits a statement indicating that he/she went ashore from the ship. Id. 
VA has determined that the presumption of Agent Orange exposure for veterans who ‘served in the Republic of Vietnam’ is limited to veterans who served on or visited the Vietnamese landmass or its inland waterways, and does not apply to veterans who served exclusively offshore in ocean-going ships, i.e., the ‘blue water’ Navy. See 38 C.F.R. § 3.313 (a); VAOPGCPREC 27-97 (Mere service on a deep-water naval vessel in waters off the shore of the Republic of Vietnam does not constitute ‘Service in the Republic of Vietnam’ for purposes of 38 U.S.C. § 101 (29)(A)); see also Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (upholding VA’s statutory interpretation excluding the ‘blue water’ Navy from presumptive herbicide exposure).
Following the Court of Appeals for Veteran’s Claims’ (Court) decision in Gray v. McDonald, 27 Vet. App. 313 (2015), VA issued new guidance on the definition of inland and offshore waterways of Vietnam. 27 Vet. App. 313. In addition, VA updated its list of US Navy and Coast Guard ships associated with military service in Vietnam to reflect the new guidance issued with respect to the definition of inland and offshore waterways and possible exposure to herbicides. See Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents, available at http://vbaw.vba.va.gov/bl/21/rating/VENavyShip.htm (Updated January 1, 2018).
The standard of proof to be applied in decisions on claims for veterans’ benefits is set forth at 38 U.S.C. § 5107. A Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. 
In written statements and during his June 2018 Board hearing, the Veteran reported that he was exposed to herbicides-namely Agent Orange-in service. In this case, the Veteran served in the Navy aboard the USS Oklahoma City (CLG-5), which spent time in the waterways of the coast of Vietnam He reported that he served aboard the ship from 1969 to 1971. See hearing transcript at 11. He indicated that he went ashore to fix radios and because of sandbars. Id at 6 and 7.
The existence of a current disability is not at issue in this case. Post-service private treatment records reflect that the Veteran was diagnosed with and treated for prostate cancer in 2006. See medical records non-government facility received in February 2008 and October 2012 VA Examination at 4. Furthermore, the disease manifested to at least a compensable degree because under DC 7528 malignant neoplasms warrant a 100 percent rating. Therefore, the only question remaining is whether the Veteran was exposed to herbicides in service such that presumptive service connection is warranted. 
The Veteran’s service personnel records reflect that he was aboard the U.S.S. Oklahoma City from November 1968 to December 1970. See Military Personnel Record received January 2011.
According to the updated Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents list, the USS Oklahoma City sent small boats ashore while anchored in Da Nang Harbor during September 1966 and January-February 1970 and sent ship’s softball team ashore during July 1969; and thus is listed among those ships that operated on Vietnam’s close coastal waters for extended periods with evidence that smaller craft from the ship regularly delivered supplies or troop ashore.
As indicated, the Veteran served on the U.S.S. Oklahoma City during this time frame and he has personally indicated that he went ashore. He has provided plausible reasons to do so as party of his duty aboard ship.  The Board found the Veteran to be credible and as such, the Board resolves all reasonable doubt in the Veteran’s favor and finds that the evidence is sufficient to concede exposure to herbicides in service.
As he also had prostate cancer that has manifested to a compensable level for VA purposes as noted above, prostate cancer shall be presumed to be due to exposure to certain herbicide agents. See 38 C.F.R. §§ 3.307, 3.309(e). Accordingly, entitlement to service connection for prostate cancer is warranted.
REASONS FOR REMAND
Entitlement to Service Connection for a Heart Condition Remanded.
The Veteran has been diagnosed with ventricular tachycardia. See Medical Treatment Record Non-Government Facility received September 2017 at 5 and October 2012 VA Examination at 4. The Veteran contends that his heart condition is related to service in Vietnam, specifically herbicide agent exposure. 
As an initial matter and as indicated above, the Board has found that the Veteran was exposed to Agent Orange during the Vietnam Era, while aboard a Blue Water ship that sent vessels of crewmen ashore, and, therefore, is presumed to have been exposed to herbicide agents. However, the Board notes that the herbicide presumption does not apply to the Veteran in this case, because his current diagnosis of ventricular tachycardia is not listed as a presumed disease under the herbicide presumption. Accordingly, the herbicide presumption does not apply to the Veteran. 38 C.F.R. § 3.307 (a)(6)(ii). Nonetheless, the Veteran may establish service connection on a direct basis due to herbicide exposure. See Combee v. Principi, 34 F.3d 1039, 1043 (1994).
Additionally, the Veteran has submitted an article indicating that Blue Water Navy personnel may have used potable water prepared from distilled marine water and potentially exposed to dioxins. See Third Party Correspondence submitted June 2018. As the record shows that the Veteran was aboard the U.S.S. Oklahoma for an extended period of time, anchored in the water of Vietnam, it is quite plausible he could have been exposed to contaminated potable water. As such an opinion is need as to whether the Veteran’s current heart condition is related to active duty service, specifically herbicide agent exposure and contaminated potable water prepared from distilled marine water.
The matter is REMANDED for the following action:
1. Obtain any outstanding treatment records and associate them with the claims file.
2. After records development is completed, the Veteran should be afforded a VA heart examination to determine the nature of any heart disability to include ventricular tachycardia, and to obtain an opinion as to whether such is related to service. The claim file should be reviewed by the examiner. All necessary tests should be conducted and the results reported.
3. The examiner should elicit a full history from the Veteran and consider the lay statements of record. It is noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 
4. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current disability of the heart is related to herbicide agent exposure, specifically Agent Orange and dioxins in potable water made from distilled marine water off the coasts of Vietnam during the Vietnam Era.
5. A rationale for all opinions expressed should be provided as the Board is precluded from making any medical findings.

 
MARJORIE A. AUER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	T. Davis, Associate Counsel 

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