Citation Nr: 1012977 Decision Date: 04/06/10 Archive Date: 04/14/10 DOCKET NO. 09-03 624 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus, type II and, if so, whether the claim should be granted. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD N. J. Nardone, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1963 to January 1967. In a rating decision dated in May 2006, the Department of Veterans Affairs (VA) Regional Office (RO) denied the Veteran's claim for service connection for diabetes mellitus, type II, as a result of exposure to herbicides. He was notified of this determination and of his right to appeal by a letter dated the same month, but a timely appeal was not received. In a September 2006 rating action, the RO confirmed and continued the previous denial of service connection. In June 2007, the Veteran sought to reopen this claim. By rating action dated in January 2008, the RO concluded that new and material evidence had been submitted to reopen the claim, however, the Veteran's claim for service connection for diabetes mellitus, type II, remained denied. He filed a timely appeal to the Board of Veterans' Appeals (Board). Despite the determination reached by the RO with respect to the claim, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). FINDINGS OF FACT 1. Entitlement to service connection for diabetes mellitus, type II was last denied in an unappealed rating decision issued in September 2006. 2. The subsequently received evidence that is not cumulative or redundant of the evidence previously of record relates to an unestablished fact necessary to substantiate the claim for service connection for diabetes mellitus, type II, and is sufficient to raise a reasonable possibility of substantiating the claim. 3. The Veteran has a current diagnosis of diabetes mellitus, type II. 4. The Veteran served in Vietnam and is presumed to have been exposed to an herbicide agent. CONCLUSIONS OF LAW 1. The RO's decision of September 2006, which denied service connection for diabetes mellitus, type II, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2009). 2. The evidence received since the September 2006 determination is new and material, and the appellant's claim for service connection for diabetes mellitus, type II is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2009). 3. Diabetes mellitus is presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA), Pub. L. No. 106- 475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2008)) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). In light of the fully favorable determination with respect to whether new and material evidence has been submitted, and on the issue of entitlement to service connection for diabetes mellitus, type II, no further discussion of VCAA compliance is necessary. Legal Criteria New and Material Evidence Pursuant to 38 U.S.C.A. § 7105(c), a final decision by the RO may not thereafter be reopened and allowed. The exception to this rule is found at 38 U.S.C.A. § 5108, which provides that "[i]f new and material evidence is presented or secured with respect to a claim, which has been disallowed, the [VA] shall reopen the claim and review the former disposition of the claim." Therefore, once an RO decision becomes final under section 7105(c), absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); Barnett, supra. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curium) (holding that the "presumption of credibility" doctrine continues to be precedent). Furthermore, the Court of Appeals for the Federal Circuit has indicated that evidence may be considered new and material if it contributes "to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its ratings decision." Hodge v. West, 115 F.3d 1356, 1363 (Fed. Cir. 1998). VA is required to review for its newness and materiality only the evidence submitted by a claimant since the last final disallowance of a claim on any basis in order to determine whether a claim should be reopened and re- adjudicated on the merits. See Evans v. Brown, 9 Vet. App. 273 (1996). In the present appeal, the Veteran's claim for service connection for a diabetes mellitus, type II, was last previously denied in a September 2006 rating action. Therefore, the Board must review, in light of the applicable law, regulations, and the Court cases regarding finality, the additional evidence submitted since that determination. The prior evidence of record is important in determining newness and materiality for the purposes of deciding whether to reopen a claim. Id. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era 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 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307 (2009). Regulations further provide, in pertinent part, that if a veteran was exposed to an herbicide agent (such as Agent Orange) during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); Type II diabetes mellitus, and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). As such, service connection may be presumed for residuals of Agent Orange exposure by showing two elements. First, it must be shown that the Veteran served in the Republic of Vietnam during the Vietnam era. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). Second, the Veteran must have been diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e), or a nexus between the currently diagnosed disability and service must otherwise be established. See Brock v. Brown, 10 Vet. App. at 162. Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). New and Material Evidence The RO last denied the Veteran's claim for service connection for diabetes mellitus, type II, in September 2006 on the basis that the evidence failed to establish that the Veteran had been exposed to Agent Orange by serving in or visiting Vietnam. He did not appeal that decision and it became final. See 38 C.F.R. §§ 20.302, 20.1103 (2009). The evidence of record at the time of the September 2006 determination consisted of the service treatment records, service personnel records, private treatment reports, written statements from the Veteran, and a "buddy statement." The service treatment records, service personnel records, and private treatment reports are negative for evidence that the Veteran served in Vietnam or was exposed to herbicides. The Veteran claimed that he briefly stopped in Vietnam on a temporary duty (TDY) assignment when his aircraft landed there en route to Bangkok, Thailand from Yokota Air Force Base, Japan. In support of his claim, the Veteran submitted a statement from a fellow servicemember who stated that he accompanied the Veteran on the TDY assignment and that the aircraft transporting them did indeed stop in Vietnam. The evidence received since the September 2006 decision consists of additional private treatment reports, VA treatment reports, additional statements from the Veteran, and several "buddy statements." This additional evidence creates a clearer picture of the circumstances that substantiate the Veteran's claim. See Hodge, supra. Thus, upon review of the evidence and resolving all doubt in the Veteran's favor, the Board finds that the evidence relates to a previously unestablished fact, that is, possible Agent Orange exposure as a result of service in Vietnam by the Veteran. Further, the additional evidence furnishes a reasonable possibility of substantiating the Veteran's claim for service connection for diabetes mellitus, type II. Thus, the Board finds that the evidence is sufficiently new and material to reopen the claim. Service Connection The Veteran contends that he is entitled to service connection on a presumptive basis as a result of herbicide exposure during service in the Republic of Vietnam. After reviewing the record and resolving all doubt in the Veteran's favor, the Board finds that service connection is warranted for diabetes mellitus, type II. The Board notes that the Veteran has been diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e). The private treatment reports of record indicate that the Veteran has been diagnosed and treated for diabetes mellitus, type II, since at least August 2001. Further, the record shows that the Veteran served in the Republic of Vietnam during the Vietnam era. The Veteran claims that he briefly stopped in Vietnam on a TDY assignment when his aircraft landed there to refuel and have an instrument replaced en route to Bangkok, Thailand from Yokota Air Force Base, Japan. He said that he was given permission to disembark the aircraft to purchase items at the base operations building. Several buddy statements substantiate that the Veteran went on a TDY assignment to Bangkok, Thailand in early 1965. One fellow servicemember indicated that he had accompanied the Veteran on the TDY assignment and that the aircraft transporting them did indeed land in Saigon en route to Thailand, although he did not recall whether anyone got off the plane during the stop. Other servicemembers stated that upon his return, the Veteran spoke of stopping at a military airfield in Saigon, Vietnam to unload equipment or refuel, eat lunch, and use the restroom. In summary, giving the Veteran the benefit of the doubt, the Board finds that the evidence indicates that in addition to having a current diagnosis of diabetes mellitus, type II, he had active service in the Republic of Vietnam during the Vietnam era. Thus, as there is no affirmative evidence to the contrary, he is presumed to have been exposed to an herbicide agent during such service. Accordingly, the Veteran is entitled to service connection for diabetes mellitus, type II, on a presumptive basis. ORDER New and material evidence having been submitted, the claim for service connection for diabetes mellitus, type II, is reopened. Service connection for diabetes mellitus, type II, is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs