Citation Nr: 18124047
Decision Date: 08/07/18	Archive Date: 08/03/18

DOCKET NO. 15-06 439
DATE:	August 7, 2018
ORDER
New and material evidence having been received, the appeal to reopen a claim of entitlement to service connection for any disability involving white blood cells, including leukemia and anemia, is granted.
REMANDED
Entitlement to service connection for any disability involving white blood cells, including leukemia and anemia, is remanded.
FINDINGS OF FACT
1. In an August 2006 rating decision, the regional office (RO) denied service connection for anemia; the Veteran did not timely appeal that decision, and no new and material evidence was received within the appeal period. 
2. Evidence received since the August 2006 rating decision is new, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for any disability involving white blood cells, including leukemia and anemia, and raises a reasonable possibility of substantiating the claim.
CONCLUSIONS OF LAW
1. An August 2006 rating decision, which denied service connection for anemia, is final.  38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2006); currently 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2017).   
2. Evidence added to the record since the August 2006 denial is new and material, and the claim for entitlement to service connection for any disability involving white blood cells, including leukemia and anemia, is reopened.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).   
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from July 1967 to July 1969.
These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).  This rating decision was issued in response to the Nehmer class-action case. See 38 C.F.R. § 3.816; Nehmer v. Veterans Admin. of the Gov't of the U. S., 284 F.3d 1158 (9th Cir. 2002) (Nehmer III).  Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), and based on the evidence of record, the Board has recharacterized the issue of entitlement to service connection for leukemia as entitlement to service connection for any disability involving white blood cells, including leukemia and anemia.  
The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in April 2018.  A transcript of that hearing is of record.  
The Board acknowledges that the Veteran submitted a RAMP opt-in election form received in July 2018.  The issues discussed in this decision were activated prior to the receipt of the opt-in election form, meaning that these issues are not eligible for the RAMP program, and the Board retains jurisdiction.  However, the issues of entitlement to a compensable evaluation for right ear hearing loss, entitlement to service connection for a bilateral hand disability, entitlement to service connection for a bilateral knee disability, and entitlement to service connection for a thyroid gland disability are eligible for the RAMP program, and will be processed and adjudicated through the RAMP program.
1. Whether new and material evidence has been received to reopen a claim of service connection for any disability involving white blood cells, including leukemia and anemia
The Veteran has put forth new and material evidence relating to a nexus between his anemia and service.  The Board finds that this evidence meets the low threshold to be sufficient to reopen the claim.
A claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period, in the absence of receipt of new and material evidence received within the one-year appeal period.  38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 3.160, 20.201, 20.302.  
A claim that is the subject of a prior denial may be reopened if new and material evidence is received with respect to that claim.  New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing 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.  38 C.F.R. § 3.156(a).  
The evidence that is considered to determine whether new and material evidence has been received is the evidence received since the last final disallowance of the appellant’s claim on any basis.  Evans v. Brown, 9 Vet. App. 273 (1996).  This evidence is presumed credible for the purposes of reopening an appellant’s claim, unless it is inherently false or untrue, or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion.  Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). 
In determining whether new and material evidence has been received to reopen a claim, the Court has indicated that there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim.  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA’s duty to obtain a VA examination.  Id. at 118.  Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance.  Id. at 120 (noting the assistance of 38 C.F.R. § 3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant to submit medical nexus evidence when he has provided new and material evidence as to another missing element).  Once a claim is reopened, the adjudicator must review it on a de novo basis, with consideration given to all the evidence of record.  38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273 (1996). 
To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 
Service connection for anemia was denied by an August 2006 rating decision.  The August 2006 rating decision noted that the Veteran’s service treatment records (STRs) were negative for any diagnosis of anemia, and found no nexus between the Veteran’s anemia and service.  No appeal was taken from the determination, and new and material evidence was not received within the one-year appeal period.  As such, the decision is final.  38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2006); currently 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2017).   
Since the last final denial, VA has received a February 2012 notice of disagreement (NOD) and April 2018 hearing testimony essentially arguing that because there is a relationship between anemia and leukemia, as well as a connection between both disabilities and white blood cells, and because leukemia is presumed to be caused by exposure to herbicide agents, the Veteran’s anemia is also caused by exposure to herbicide agents.  The Veteran’s DD 214 indicates service in the Republic of Vietnam during the applicable timeframe, meaning that exposure to herbicide agents is presumed.  This information constitutes new and material evidence as to service connection for any disability involving white blood cells, including leukemia and anemia.  The evidence is relevant to a nexus between the Veteran’s service and his disability.
The evidence thus relates to an unestablished fact necessary to substantiate the Veteran’s claim, and raises a reasonable possibility of establishing the claim.  See 38 C.F.R. § 3.156, 4.125(a).  Therefore, the evidence is new and material.  Such new and material evidence having been received, the claim of entitlement to service connection for any disability involving white blood cells, including leukemia and anemia, is reopened.  See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).
REASONS FOR REMAND
1. Entitlement to service connection for any disability involving white blood cells, including leukemia and anemia is remanded.
The Board cannot make a fully-informed decision on the reopened claim of entitlement to service connection for any disability involving white blood cells, including leukemia and anemia, because no VA examiner has opined whether the Veteran’s disability is caused by his exposure to herbicide agents in service. 
The matter is REMANDED for the following action:
1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any disability involving white blood cells, including leukemia and anemia.  The examiner must opine whether it is at least as likely as not that any disability involving white blood cells, including leukemia and anemia, is related to an in-service injury, event, or disease, including exposure to herbicide agents in service.    
Any opinion offered must be supported by a complete rationale.
2.  After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal.  If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond.  If necessary, return the case to the Board for further appellate review.

 
U. R. POWELL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Department of Veterans Affairs 

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