Citation Nr: 0941781 Decision Date: 11/03/09 Archive Date: 11/09/09 DOCKET NO. 07-28 010 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1962 to January 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office in Fort Harrison, Montana (RO) which declined to reopen the Veteran's claim for service connection for diabetes mellitus based on the lack of new and material evidence. The Veteran has perfected an appeal to this issue. It is noted that the RO originally denied the Veteran's original claim for service connection for diabetes mellitus in a January 2003 rating decision, finding that the Veteran's exposure to Agent Orange could not be verified and his disability was not otherwise related to service. The Veteran did not appeal and the January 2003 rating decision is the last final decision of record. In the August 2007 statement of the case, the RO reopened the Veteran's claim for service connection for diabetes mellitus but denied the claim on the merits. Notwithstanding the RO's actions, it is incumbent on the Board to adjudicate the new and material issue before considering the claim on its merits. The question of whether new and material evidence has been received is one that must be addressed by the Board, notwithstanding a decision favorable to the appellant that may have been rendered by the RO. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (before considering a previously adjudicated claim, the Board must determine that new and material evidence was presented or secured for the claim, making RO determination in that regard irrelevant); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001)(the Board has a jurisdictional responsibility to consider whether it was proper for the RO to reopen a previously denied claim). The Board has accordingly characterized the issue as shown on the title page. In August 2009, the Veteran testified before the undersigned during a hearing held at the RO. A copy of the transcript has been associated with the claims folder. FINDINGS OF FACT 1. In a January 2003 rating decision, the RO denied service connection for diabetes mellitus based upon the finding that in-service exposure to Agent Orange could not be verified and his disability was not otherwise related to service; the Veteran did not appeal that decision. 2. None of the additional pertinent evidence received since the January 2003 rating decision relates to an unestablished fact (evidence of in-service exposure to Agent Orange or evidence that shows his disability is otherwise related to service) necessary to substantiate the claim, or raises a reasonable possibility of substantiating that claim. CONCLUSIONS OF LAW 1. The January 2003 rating decision that denied service connection for diabetes mellitus became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2009). 2. New and material evidence to reopen service connection for diabetes mellitus has not been received. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim. VA will inform the Veteran of the type of information and evidence that VA will seek to provide, and of the type of information and evidence, the claimant is expected to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to the claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). These VCAA notice requirements apply to all elements of a claim for service connection, so VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the context of a claim to reopen, in addition to the general notice for the underlying service connection claim, the VCAA requires that the Secretary look at the bases for the denial in the prior decision and to provide the veteran with a notice letter that describes what evidence would be necessary to substantiate the unestablished element(s) required to award service connection. Kent v. Nicholson, 20 Vet. App. 1, 9 (2006). The veteran must also be notified of what constitutes both "new" and "material" evidence pertaining to the unestablished element(s) in order to reopen the previously denied claim. Id. Here, prior to the March 2007 RO decision in the matter, VA sent a letter to the Veteran in August 2006 that addressed all notice elements concerning his claim to reopen a claim for service connection for diabetes mellitus. The letter informed the Veteran of what evidence is required to substantiate the claim, to include the types of evidence needed in order to substantiate his claim for service connection, and apprised the Veteran as to his and VA's respective duties for obtaining evidence. In addition, the RO noted what evidence and information the Veteran was required to provide, and what evidence and information that VA was required to provide. The letter also advised the Veteran of the basis for the previous denial of his claim, and of what types of evidence constituted both "new" and "material" evidence necessary to reopen the claim. In the August 2006 notice letter, VA also informed the Veteran how it determines the disability rating and the effective date for the award of benefits if service connection is to be awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board notes that the Veteran has submitted correspondence which indicates his belief that VCAA must notify him of "the existence of negative evidence and how to counter this evidence." See, e.g., the July 2006 Statement in Support of Claim. However, the United States Court of Appeals for the Federal Circuit has specifically found that VCAA notice "may be generic in the sense that it need not identify evidence specific to the individual claimant's case (though it necessarily must be tailored to the specific nature of the veteran's claim)." See Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007) at 1062. The Court has further stated since 38 U.S.C.A. § 5103(a) "deals only with information and evidence gathering prior to the initial adjudication of a claim . . . it would be senseless to construe that statute as imposing upon the Secretary a legal obligation to rule on the probative value of information and evidence presented in connection with a claim prior to rendering a decision on the merits itself." See also Locklear v. Nicholson, 20 Vet.App. 410 at 415 (2006). Therefore, the contentions that the Veteran should be provided notification as to the adequacy of the evidence in his case is meritless. In addition to its duty to notify, or inform, the Veteran with regard to his claim for service connection for diabetes mellitus, VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and records of pertinent medical treatment since service, and providing the Veteran a medical examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, VA has made reasonable efforts to obtain any available pertinent records as well as all relevant records adequately identified by the Veteran. Further, the RO has made several attempts to verify the Veteran's alleged inservice exposure to herbicide agents, including obtaining a list from the Department of Defense on the Use, Testing, and Storage of Dioxon Containing Herbicides outside Vietnam and sending an inquiry to the U.S. Army and Joint Services Records Research Center (JSRRC). See BVA Fast Letter 09-20 (May 6, 2009). As to VA's duty to provide an examination, it only applies when such an examination is necessary to decide a claim. Here, VA did not provide the Veteran with an examination in connection with his claim for diabetes mellitus; however, the Board finds that an examination was not necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A(d)(2) (West 2002). VA has a duty to obtain a medical examination if the evidence establishes: (1) a current disability or persistent or recurrent symptoms of a disability; (2) an in-service event, injury, or disease; and (3) the current disability may be associated with the in-service event, but (4) there is insufficient evidence to make a decision on the claim. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). Under the McClendon analysis above, the Board does not find: (2) that the evidence establishes that the Veteran was exposed to Agent Orange during service; or (3) that the evidence shows there is an indication that the current disability may be otherwise associated with the Veteran's service. There is no evidence showing that the Veteran was exposed to Agent Orange during service. In regards to the Veteran's assertions that his current condition is based on secondary exposure to working near or working on aircrafts that flew into Vietnam, there are no current medical studies that show harmful health effects for any such secondary or remote herbicide contact that may have occurred. The Veteran also has not submitted any medical evidence that would indicate a nexus based on secondary exposure. Additionally, there is no evidence that shows that suggests that the Veteran's disability is otherwise related to his service. Accordingly, an examination at this time is not necessary. See id. The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. See Bernard v. Brown, 4 Vet. App. 384 (1993). For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and its duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159(b), 20.1102 (2009); Pelegrini, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002). Application to Reopen the Claim Based on New and Material Evidence The Veteran seeks to reopen a claim of service connection for diabetes mellitus. In July 2006, the Veteran initiated the current claim on appeal. Specifically, the Veteran argued that his diabetes mellitus was caused by in-service exposure to Agent Orange while he was stationed in Thailand. In a March 2007 rating decision, the RO declined to reopen the claim because new and material evidence had not been received. The Veteran's claim for service connection was previously denied by a rating decision in January 2003. In that rating decision, RO denied the Veteran's claim because exposure to Agent Orange could not be verified and his disability was not otherwise related to service. The Veteran did not appeal, and the January 2003 rating decision became final. See 38 C.F.R. §§ 20.302, 20.1103. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Appellant. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Before reaching the underlying claim of entitlement to service connection, the Board must first determine whether new and material evidence has been presented to establish its jurisdiction to review the merits of the previously denied claim. See Barnett, supra. Under current VA law, "new" evidence is defined as evidence that has not been previously submitted to the agency decision makers; and "material" evidence is defined as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claims sought to be reopened, and it must raise a reasonable possibility of substantiating the claim. Id. VA is required to first review the evidence submitted since the last final disallowance of a claim on any basis for its newness and materiality. See Evans v. Brown, 9 Vet. App. 273 (1996). The evidence received subsequent to the last final decision in this case is presumed credible for the purposes of reopening a claim unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1995). Evidence of record at the time of the last final decision, the January 2003 rating decision, consisted of the Veteran's service treatment records and personnel records, a December 2002 private medical statement from Dr. M. N. and the Veteran's statements. The Veteran's service treatment records contain the report from his November 1964 examination prior to separation. In that report, the examiner evaluated the Veteran's endocrine system as normal and urinalysis was negative. On an associated medical history report, the Veteran did not indicate any problems with sugar or albumin in his urine during service or any other symptoms indicative of diabetes mellitus. A review of the Veteran's service personnel records shows that he was stationed overseas in the United States Pacific Command from September 1962 to March 1964 where his military occupational specialty (MOS) was a supply clerk. The record further shows the following: from September 21, 1962 to June 30, 1963 he was stationed in Okinawa (Naha and Kedana); from July 1, 1963 to July 17, 1963 he travelled enroute to Thailand; from July 18, 1963 to December 11, 1963 he was stationed in Korat, Thailand; and from December 12, 1963 to March 8, 1964 he returned and was stationed in Okinawa. At the time of the last final decision, the record did not contain any evidence that showed herbicide use (including Agent Orange) in these locations during the specified periods. A December 2002 medical statement from Dr. M.N. indicates a relationship between the Veteran's current diabetes mellitus and in-service exposure to Agent Orange. This medical nexus opinion appears to be based on the Veteran's subjective history of herbicide exposure in service. In January 2003, the RO denied the Veteran's claim because the evidence failed to verify in-service exposure to Agent Orange or that his disability was otherwise related to service. As discussed above, that decision was final. In order for the Board to now reopen the Veteran's claim for service connection for diabetes mellitus, the Board must find that new and material evidence received has been submitted since the last final decision in January 2003. To be "new", this evidence must not be redundant of that which was already on file in 2003. To be "material", this new evidence must relate to an unestablished fact necessary to substantiate the claim. Here, evidence related to that unestablished fact would be evidence which shows the Veteran was exposed to Agent Orange during service or which shows his disability is otherwise related to service. Essentially, the additional evidence must at least indicate that the Veteran was likely exposed to Agent Orange while stationed in Thailand or Okinawa or that his disability is otherwise related to service. Finally, this new and material evidence must raise a reasonable possibility of substantiating the claim. As explained below, the Board finds that no such evidence has been received. The evidence added to the claim file since the January 2003 rating decision, consists of the following: post-service treatment from Dr. M.N. that show the Veteran was diagnosed with onset adult diabetes mellitus in February 2001 and he was subsequently treated for this condition; post-service treatment records from VA Medical Center in Fort Harrison from February 2002 to March 2009 that show treatment for diabetes mellitus; several internet website articles that indicate the use of herbicide agents in Thailand during the Vietnam era, including history of Operation RANCH HAND; a Department of Defense list of Use, Testing, and Storage of Dioxon Containing Herbicides outside Vietnam; a Summary of the use of Agent Orange in Operation Red Hat (Okinawa); a VA memorandum on Herbicide Use in Thailand during the Vietnam Era; a January 2008 RO memorandum indicating that Veteran's exposure to Agent Orange in Thailand and Okinawa could not be verified; a February 2008 response from JSRRC that the Veteran's exposure to Agent Orange in Okinawa and Thailand could not be verified; and the Veteran's statements and testimony during the August 2009 hearing. The additional post-service treatment records show that the Veteran received treatment for diabetes mellitus. None of the treatment records, however, contains a medical opinion regarding the etiology of the Veteran's disability. Since the additional treatment records only contain information that was already of record prior to 2003, i.e., that the Veteran has a current diagnosis of diabetes mellitus, these records do not constitute material evidence to reopen the claim. See Cornele v. Brown, 6 Vet. App. 59, 62 (1993); Mintz v. Brown, 6 Vet. App. 277, 280 (1994) (medical evidence that merely documents continued diagnosis and treatment of disease, without addressing the crucial matter of medical nexus, does not constitute new and material evidence). The additional records containing information about the use of herbicides in Thailand and Okinawa are also insufficient to reopen the Veteran's claim. A review of the records does not show herbicide use, including Agent Orange, where the Veteran was located in Thailand and Okinawa during the period when he was stationed at those locations. Specifically, the evidence indicates that the herbicides were used in Thailand from 1964 to 1965 (with confirmed use from April 2, 1964 to September 8, 1964). The Veteran was no longer stationed in Thailand after December 1963. The records pertaining to Operation Red Hat show herbicide agents were stored and then later disposed in Okinawa from August 1969 to March 1972, several years after the Veteran returned to the United States in March 1964. The additional evidence also shows that a component of Operation RANCH HAND (the primary units used to spray Agent Orange throughout Vietnam) was employed in Thailand from August 30, 1963 to September 16, 1963. During this period the unit was deployed to Thailand in order to spray crops with insecticides used to control malaria-carrying mosquitoes. None of these scheduled sprays was used to release herbicide agents. The VA memorandum on Herbicide Use in Thailand showed that there was sporadic non-tactical (commercial) herbicide use within fenced perimeters of Thailand bases. The memorandum further showed that in order for a veteran to be exposed to these herbicides, he would need to be in contact with the base perimeter and that such exposure would have required a veteran to walk the perimeter of bases, a duty likely attributed to security police. Here, the Veteran's MOS was a supply clerk and his duties therefore did not likely entail walking the base perimeter. Accordingly, the additional evidence concerning information on herbicide use in Thailand and Okinawa, though new, is not material, since it is against the claim. See Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to a claimant is not new and material). The Veteran's testimony during the August 2009 Travel Board hearing does not provide any new evidence to reopen the claim for service connection. The Veteran testified that he was stationed in Thailand during service and that while he was stationed in Thailand, he came into contact with helicopters and monies that had previously been in Vietnam. This testimony is merely cumulative of the other evidence of record contained in statements from the Veteran (see, e.g., the Veteran's November 2001 and June 2002 statements) and cannot reopen the claim. See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). Further, the Veteran's additional assertions that his exposure to Agent Orange was secondary to working near or on aircrafts that flew into Vietnam or handled equipment or monies from Vietnam are not sufficient to reopen the claim. Although the Veteran is competent to attest to facts surrounding his claim, as a lay person, he is not competent to offer opinions that require medical knowledge. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Indeed, in Moray v. Brown, 5 Vet. App. 211 (1993), the Court noted that laypersons are not competent to offer medical opinions and that such evidence does not provide a basis on which to reopen a claim for service connection. In Routen v. Brown, 10 Vet. App. 183, 186, (1997), the Court noted "[l]ay assertions of medical causation . . . cannot suffice to reopen a claim under 38 U.S.C.A. 5108." The Veteran's assertions cannot reopen the claim. After a careful review of the claim file, the Board finds that since the last final decision in January 2003, no new and material evidence has been received to reopen the Veteran's claim. The newly received evidence in this case does not pertain to the unestablished fact (evidence of inservice exposure to Agent Orange) necessary to establish this claim. The additional treatment records only show that the Veteran continued to seek treatment for diabetes mellitus and the record does not indicate an etiology for his disability or provide a medical nexus statement. To the extent that the evidence pertaining to herbicide use in Okinawa and Thailand added since 2003 addresses the unestablished fact necessary to substantiate the claim (evidence of inservice exposure to Agent Orange), the additional evidence only provides general information regarding herbicide use in those locations and does not provide VA with specific information necessary to verify the Veteran's claimed inservice exposure. This additional evidence does not raise a reasonable possibility of substantiating the claim. Based on the foregoing, the Board finds that new and material evidence has not been received and the matter may not be reopened. See 38 C.F.R. § 3.156. ORDER New and material evidence not having been received, the claim of service connection for diabetes mellitus is not reopened, and service connection remains denied. ______________________________________________ S. BUSH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs