Citation Nr: 1504056	
Decision Date: 01/28/15    Archive Date: 02/09/15

DOCKET NO.  13-02 995	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUES

1.  Entitlement to service connection for a heart disability, to include as due to exposure to herbicides. 

2.  Whether new and material evidence has been received to reopen a claim of service connection for diabetes mellitus, to include as due to exposure to herbicides.


REPRESENTATION

Appellant represented by:	West Virginia Department of Veterans Assistance


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

S. Stanley, Associate Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from June 1972 to June 1976.  These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the Huntington, West Virginia Department of Veterans Affairs (VA) Regional Office (RO).  In August 2014, a videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the record. 

The issues of service connection for diabetes mellitus (on de novo review) and for a heart disability are being REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action on his part is required.


FINDINGS OF FACT

1.  An unappealed March 2009 rating decision denied the Veteran service connection for diabetes mellitus based essentially on findings that such disease was not manifested in service or for many years thereafter; that he was not entitled to consideration of his claim under the presumptive provisions of 38 U.S.C.A. § 1116; and that the diabetes was not shown to otherwise be related to his service.

2.  Evidence received subsequent to the March 2009 rating decision tends to show the Veteran's diabetes may be related to service, to include as due to exposure to herbicides; relates to an unestablished fact necessary to substantiate the claim of service connection for diabetes mellitus; and raises a reasonable possibility of substantiating the claim.

CONCLUSION OF LAW

New and material evidence has been received, and the claim of service connection for diabetes mellitus may be reopened.  38 U.S.C.A. §§ 5108, 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 3.156 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act (VCAA)

Inasmuch as this decision grants the benefit sought (reopens the claim of service connection for diabetes mellitus), there is no reason to belabor the impact of the VCAA in the matter.  Any notice or duty to assist omission is harmless.

Legal Criteria, Factual Background, and Analysis

Service connection for diabetes mellitus was denied by a March 2009 rating decision.  The Veteran did not appeal that decision (or submit evidence in the year following) and the decision became final.  38 U.S.C.A. § 7105. 

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.  38 U.S.C.A. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted.  38 U.S.C.A. § 5108. 

"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 United States Court of Appeals for Veterans Claims (Court) has held that the requirement for new and material evidence to reopen a claim is a low threshold requirement.  Specifically, the Court interpreted the language of 38 C.F.R. 
§ 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  See Shade v. Shinseki, 24 Vet. App. 110 (2010).

When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed.  Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992).

The evidence of record at the time of the March 2009 rating decision included the Veteran's service treatment records (STRs) and service personnel records, and postservice VA treatment records.

The Veteran's STRs do not show any complaints, treatment, or diagnosis of diabetes or related symptoms.  His service personnel records show he served at Nam Phong, Thailand in 1973.  VA treatment records show the Veteran had diabetes diagnosed in June 2008. 

The unappealed March 2009 rating decision denied service connection for diabetes on the bases there was no evidence of it in service; it was not manifested in the first post-service year; and there was no evidence that the Veteran was exposed to herbicides (to warrant consideration under 38 U.S.C.A. § 1116).

Evidence received since the March 2009 rating decision includes a February 2012 VA Agent Orange evaluation, a photograph of Nam Phong Air Base in Thailand, the Compensation and Pension (C&P) Service's "Memorandum for the Record" on herbicide use, and the testimony of the Veteran at the August 2014 hearing before the undersigned.

The VA memorandum on herbicide use outside of Vietnam notes that unless the claim is inherently incredible or lacks legal merit, ROs should send a request to Joint Services Records Research Center (JSRRC) to attempt to corroborate the Veteran's claimed exposure. 

At the August 2014 Board hearing, the Veteran testified that his barracks on the Nam Phong base were located near the perimeter fence, that he would walk through the gate at the perimeter to visit other bases while on leave, and that he recalled dead foliage around the perimeter which lead him to believe herbicides were used.  

The Board finds that the evidence received since the March 2009 rating decision addresses an unestablished fact necessary to substantiate the claim of service connection for diabetes mellitus (as it tends to show that he may have been exposed to herbicides in service and entitled to consideration of his claims under the presumptive provision of 38 U.S.C.A. § 1116), and considered in conjunction with the entire record, raises a reasonable possibility of substantiating the claim.  Taken at face value as required for purposes of reopening, the evidence received is both new and material, and the claim of service connection for diabetes may be reopened.  De novo review is addressed in the remand below.


ORDER

The appeal to reopen a claim of service connection for diabetes mellitus is granted.


REMAND

The Veteran served in Nam Phong in Thailand in 1973.  As noted above, he asserts he was exposed to herbicides through their use at the perimeter of his base and other bases nearby.  Regarding service connection for both diabetes and a heart disability (to include ischemic heart disease, coronary artery disease, and hypertension), VA has developed specific evidentiary procedures to verify whether a Veteran was exposed to herbicides in locations other than Vietnam.  M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(q), was adopted for application when the Veteran alleges exposure to herbicides in Thailand. 

It does not appear that the evidentiary development procedures required when there is an allegation of exposure to herbicides in a location such as Thailand have been followed.  The United States Court of Appeals for Veterans Claims (Court) has consistently held that evidentiary development procedures provided in the Adjudication Procedure Manual are binding.  See Patton v. West, 12 Vet. App. 272, 282 (1999) (the Board failed to comply with the duty-to-assist requirement when it failed to remand the case for compliance with the evidentiary development called for by M21-1).  A formal finding regarding the Veteran's allegation of exposure to herbicides in Thailand has not been provided for the record.  Accordingly, further development of pertinent evidence is necessary.

The case is REMANDED for the following:

1.  The AOJ should ask the Veteran for the approximate dates, location, and nature of his alleged exposure to Agent Orange or other tactical herbicides in Thailand.  After he responds, the AOJ shall determine whether the information he provided is sufficient to adjudicate the claim (i.e. seek verification of the alleged exposure).  If so, the AOJ should request from the C&P Service a review of the inventory of herbicide operations maintained by the Department of Defense (DOD) to determine whether herbicides were used or tested as alleged by the Veteran.  If the exposure is not verified by the request to C&P, verification should be sought from JSRRC.  The AOJ should forward a list of the Veteran's service dates and duty locations as well his contentions regarding the nature of his exposure to herbicides in service to JSRRC and request verification of his exposure to herbicides.  The results of this development should be outlined in a memorandum for the record.

If the information is insufficient, or if the Veteran does not timely respond regarding his alleged exposure, the RO forward the case to a JSRRC coordinator for a formal finding that the information provided is insufficient to verify the Veteran's exposure to herbicides in service.

2.  The AOJ should then readjudicate the Veteran's claims of service connection for diabetes mellitus and a heart disability (to specifically encompass as based on alleged exposure to herbicides).  The adjudication process must include a specific finding of whether or not the Veteran's allegations of herbicide exposure are verified.  If either claim remains denied, the AOJ should issue an appropriate SSOC and afford the Veteran and his representative the opportunity to respond.  The case should then be returned to the Board, if in order, for further review. 

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs