Citation Nr: 1037514 Decision Date: 10/04/10 Archive Date: 10/12/10 DOCKET NO. 08-36 214 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Whether new and material evidence sufficient to reopen the claim of entitlement to service connection for Type II diabetes mellitus (DM), to include as due to exposure to herbicides such as Agent Orange, has been received and, if so, whether a grant of service connection for Type II DM is warranted. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 1966 to October 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision issued by the above Regional Office (RO) of the Department of Veterans Affairs (VA) which, in part, denied reopening of the appellant's claim of entitlement to service connection for Type II diabetes mellitus (DM), to include as due to exposure to herbicides such as Agent Orange. The Board notes that the Veteran's claim for service connection for DM based on exposure to herbicides in Korea was originally denied in a March 2003 rating decision; the appellant was notified of the denial that same month. In January 2004, the appellant submitted his notice of disagreement (NOD), but he did not submit a substantive appeal after a statement of the case (SOC) was issued in August 2004; instead, he sent in a request to reopen the claim in August 2006. The basis of the denial was that the record was silent as to any herbicide exposure at the appellant's duty station (Camp Casey) in Korea. The March 2003 rating decision represents the last final action on the merits of the DM claim. See Glynn v. Brown, 6 Vet. App. 523 (1994). The March 2003 RO rating action also represents the last final decision on any basis as to the issue of whether the appellant is entitled to service connection for DM, to include as due to exposure to herbicides such as Agent Orange. Evans v. Brown, 9 Vet. App. 273 (1996). Thus, the Board will consider whether any of the evidence submitted since the March 2003 rating decision constitutes new and material evidence. The appellant, in his November 2008 substantive appeal, requested to appear before a Traveling Member of the Board of Veterans' Appeals (Board). In December 2008, the appellant sent the RO a written waiver of his right to an "in person" Board hearing and gave his acceptance of a videoconference hearing. In July 2010, that videoconference hearing was held with the Veteran located at the RO before the undersigned Acting Veterans Law Judge (located in Washington, DC). A transcript of that hearing has been associated with the claims file. The issue of entitlement to service connection for Type II DM, to include as due to exposure to herbicides such as Agent Orange, is addressed in the REMAND portion of the decision below and that issue is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The appellant's claim of entitlement to service connection for Type II DM was denied in an March 2003 RO decision; notice was given to the appellant, but he did not submit a substantive appeal after the SOC was issued in August 2004. 2. The evidence received since the most recent final unfavorable RO decision in March 2003, when considered with previous evidence, relates to an unestablished fact necessary to substantiate the appellant's claim and, when considered together with the previous evidence of record, raises a reasonable possibility of substantiating the Type II DM claim. CONCLUSIONS OF LAW 1. The March 2003 RO decision that denied the claim relating to service connection for Type II DM is a final decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2009). 2. Additional evidence submitted subsequent to the March 2003 rating decision that denied the appellant's claim for service connection for Type II DM is new and material, and serves to reopen the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5108 (West 2002 & Supp. 2009); 38 C.F.R. § 3.156 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Board is granting the appellant's attempt to reopen the claim for service connection for Type II DM; the Board is granting in full the benefit (reopening of the claim) sought on appeal. The issue of entitlement to service connection is being remanded. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist in relation to the reopening of the DM service connection claim, such error was harmless and will not be further discussed. II. The Merits of the Present Appeal In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Decisions of the Board are final, as are unappealed rating actions of the RO. 38 U.S.C.A. §§ 7104, 7105. In order to reopen a claim there must be added to the record "new and material evidence." 38 U.S.C.A. § 5108. The United States Court of Appeals for Veterans Claims (Court) has held that the new and material evidence necessary to reopen a previously and finally disallowed claim must be secured or presented since the time that the claim was finally disallowed on any basis, not only since the time the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The March 2003 rating decision, in which the appellant's Type II DM service connection claim was finally disallowed on the merits, is final. 38 C.F.R. § 20.1103. This is so because the appellant did not complete his appeal of the decision within the time period allowed. The March 2003 rating decision is also the last time the appellant's Type II DM claim was finally disallowed on any basis and may not be reopened in the absence of new and material evidence. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156(a). Therefore, the appellant's claim may be reopened only if new and material evidence has been secured or presented since the March 2003 rating decision. See Glynn v. Brown, 6 Vet. App. 523 (1994). The pertinent regulations require that evidence raise a reasonable possibility of substantiating a claim in order to be considered "new and material," and define material evidence 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(a). The appellant's claim for service connection for Type II DM, to include as due to exposure to herbicides in Korea, was denied in essence because the service treatment records did not mention any DM and because there was no evidence of record that the appellant was exposed to herbicides in Korea; any new and material evidence must relate to this. The Board notes that, while the presumption of exposure to Agent Orange only applies to veterans who served in Vietnam, a veteran's service in Korea and other areas outside of Vietnam in which the Department of Defense (DoD) has confirmed the use of herbicide agents may be considered for purposes of establishing a claim for direct service connection. VA Adjudication Manual M21- 1MR Part IV.ii.2.C.10. The DoD has identified specific units that served in areas along the DMZ in Korea where herbicides were used between April 1968 and July 1969. M21-1MR Part IV.ii.2.C.10. Furthermore, when a veteran alleges service along the DMZ between April 1968 and July 1969, and was assigned to a unit other than those identified by DoD, VA is to submit a request to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification of the location of a veteran's unit. The evidence considered by the RO in making its March 2003 decision included such evidence as the appellant's DD Form 214; his service treatment records (STRs); the November 2001 VA Form 21-526; VA medical treatment records, dated between 2001 and 2002, that reflect a diagnosis of Type II DM; and a copy of a February 2000 VFW magazine article about the defoliation of the demilitarized zone (DMZ) in Korea. The August 2004 SOC reflects review of the appellant's service personnel records; these records reveal that the appellant served in Korea from November 12, 1967 to November 7, 1968, and that he was assigned to the 7th Administration Company of the 7th Infantry Division as a personnel specialist. The evidence added to the record subsequent to the issuance of the March 2003 rating decision includes written statements from the appellant and from his representative; third-party (buddy) statements; and the transcript from the July 2010 Board videoconference hearing. The credibility of the evidence is presumed for the purpose of reopening. Justus v. Principi, 3 Vet. App. 510 (1992). Whether new and material evidence is submitted is also a jurisdictional test - if such evidence is not submitted, then the claim cannot be reopened. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). Proper analysis of the question requires a determination of whether the claim should be reopened and, if so, an adjudication on the merits after compliance with the duty to assist. In his quest to reopen his claim, the appellant has indicated that he is seeking service connection for Type II DM based on exposure to herbicides while he was in Korea at Camp Casey. He has stated that Camp Casey was located near the DMZ and that defoliants were used at Camp Casey. In a VA Form 21-4138 submitted in January 2007, the appellant stated that his duties at Camp Casey involved multi-day travel to 7th Infantry Division units on the DMZ. He further stated that he participated in a field exercise on the DMZ that lasted over a week. He provided similar statements when he testified at his July 2010 Board videoconference hearing. In addition, the appellant has submitted written statements from soldiers who served at Camp Casey at or near the time the appellant was stationed there. An April 2008 letter indicates that one soldier, who was stationed at Camp Casey in 1965 and 1966, observed the spraying of chemicals around the perimeter of the camp in the late summer of 1965. He also indicated that such spraying took place several times during his tour in Korea. Documents from another soldier indicate that he served with the 2nd Infantry Division Chemical Company in Korea from 1968 to 1969, and that, in the course of his duties, he participated in herbicide spraying. He went on to state that the perimeter and the mess hall at Camp Casey were treated with herbicidal agents. The appellant has also submitted VA documents pertaining to two other Veterans that indicate they were granted VA disability benefits based on herbicide exposure that was related to their service in Korea at Camp Casey in the late 1960s. The appellant also submitted a photograph showing that he served with one of these men. The Board notes that veterans are competent to report about the places where they served and the conditions under which they served. See Buchanan v. Nicholson, 451 F.3d 1331 (2006). As previously noted, the credibility of the evidence is presumed for the purpose of reopening. Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran alleges that he was exposed to herbicides (to include Agent Orange) in the vicinity of the DMZ while he was stationed in Korea at Camp Casey and he has submitted buddy statements that indicate herbicides were used at Camp Casey. The DOD has confirmed that herbicides were used along the DMZ in Korea from April 1968 through July 1969. M21-MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10, Subsection (l). The Veteran's service personnel records reveal that he was stationed in Korea between April 1968 and November 1968, and that he was assigned to one of the units (namely, the 7th Infantry Division) that has been recognized as serving in the DMZ during the time period when Agent Orange was sprayed there. Id. (However, it has not been shown that the 7th Administrative Company served in the DMZ.) Furthermore, the appellant has presented evidence tending to show the use of herbicides at Camp Casey. The Board therefore finds that the evidence submitted subsequent to the March 2003 rating decision provides relevant information as to the question of whether the appellant incurred herbicide exposure during his months of military service in Korea. The Board finds that the evidence cited above constitutes new and material evidence sufficient to reopen the claim for service connection for Type II DM. With the claim having been reopened, the service connection claim is addressed in the REMAND section which follows. ORDER The claim for service connection for Type II DM, to include as due to exposure to herbicides, is reopened; to that extent only, the appeal is granted. REMAND A determination has been made that additional development is necessary with respect to the issue on appeal. Accordingly, further appellate consideration will be deferred and this case remanded to the AMC/RO for action as described below. As previously noted, the DOD has confirmed that Agent Orange was used along the DMZ in Korea from April 1968 to July 1969. Fields of fire between the front line defensive positions and the south barrier fence were defoliated. The size of the treated area was a strip of land 151 miles long and up to 350 yards wide from the fence to north of the "civilian control line" (CCL). There was no indication that herbicides were sprayed in the DMZ itself. Herbicides were applied through hand spraying and by hand distribution of pelletized herbicides. Although restrictions were put in place to limit potential for spray drift, run-off, and damage to food crops, records indicate that the effects of spraying were sometimes observed as far as 200 meters down wind. The estimated number of exposed personnel is 12,056. See M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C; see also Veterans Benefits Administration (VBA) "Fact Sheet" distributed in September 2003. Type II DM is one of the diseases are associated with herbicide exposure for purposes of the presumption. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). The appellant's VA medical records reflect a diagnosis of this disease. If it is determined that a Veteran who served in Korea from April 1968 to July 1969 belonged to one of the units identified by DOD, then it is presumed that he or she was exposed to herbicides containing Agent Orange, and the presumptions outlined in 38 C.F.R. § 3.309(e) will apply. See VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, Topic 10, Block k. If the veteran instead either belonged to a different unit located in Korea during this time period, or served in one of the units identified by DOD between September 1, 1967 and August 31, 1971, but not during 1968 or 1969, then herbicide exposure will represent a factual determination to be established on a case-by- case basis. See VA Adjudication Procedure Manual, M21-1 MR, Part VI, Chapter 2, Section B, Topic 6, Block d. Units in the area of the DMZ during the period of use of herbicides included the following units of the 7th Infantry Division: 1st Battalion, 17th Infantry; 1st Battalion, 31st Infantry; 1st Battalion, 32nd Infantry; 2nd Battalion, 10th Cavalry; 2nd Battalion 17th Infantry; and 2nd Battalion, 31st Infantry. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. While the appellant did serve in Korea during the pertinent timeframe, there is no mention of the 7th Administrative Company being one of the 7th Infantry Division units at the DMZ; however, the appellant has reported that he visited various 7th Infantry Division units at the DMZ during the course of his duties. The Board notes that Camp Casey, Korea was located in the city of Tongduchon (now Dongducheon), 11 miles southeast of the DMZ. The Veteran's service personnel records currently in evidence do not show whether or not his duties may have included contact with 7th Infantry Division units serving at the DMZ, or involved travel to the DMZ (as alleged). His allegations are not implausible, and may be capable of verification. In addition, the Veteran's claims file does not indicate that a request was made to the JSRRC for verification of the location of the Veteran's unit. A remand is therefore necessary in order that the evidentiary development procedures provided in VBA's Adjudication Procedure Manual, M21-1 may be followed in this case. Hence, further development is required to determine whether the Veteran's military duties in Korea involved travel to/work at the DMZ during a period of herbicide spraying. Therefore, to ensure full compliance with due process requirements, this case is REMANDED to the AMC/RO for the following: 1. The AMC/RO must assure itself that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A, the implementing regulations found at 38 C.F.R. § 3.159 and any other applicable legal precedent has been completed. 2. The AMC/RO should arrange for exhaustive development, to include obtaining the rest of the Veteran's service personnel records and utilization of the resources of the JSRRC, to conclusively determine whether or not the Veteran's duties while serving in Korea may reasonably be found to have involved travel to other units of the 7th Infantry besides the 7th Administrative Company, and whether those locales are at the Korean DMZ (or are so located as to have required travel in the DMZ to be reached). The AMC/RO should arrange for all appropriate research, including comparison of unit records with official maps (of where the Veteran's unit was located, and where herbicide spraying occurred). In addition, the AMC/RO should determine whether or not herbicides were in use at Camp Casey during the appellant's service in Korea. 3. If further information from the Veteran is required for this development to be completed, he must assist in this matter by providing such information. If any requested records are unavailable, or the search for such records yields negative results, it should be so noted in the claims file, along with an explanation for the negative result. 4. Upon receipt of the JSRRC report, the AMC/RO should conduct a review to verify that all requested information has been offered. If information is deemed lacking, the AMC/RO should refer the report to the JSRRC for corrections or additions. See 38 C.F.R. § 4.2 (where findings in a report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate). 5. The AMC/RO should undertake any other development suggested by the development ordered above. 6. After all appropriate development above has been accomplished, the AMC/RO should again review the record, including any newly acquired evidence, and re-adjudicate the Type II DM service connection claim on appeal. The readjudication should reflect consideration of all the evidence of record and be accomplished with application of all appropriate legal theories. 7. If the benefit sought on appeal remains denied, the appellant and his representative should be provided a Supplemental Statement of the Case, containing notice of all relevant actions taken on the claim to include a summary of the evidence and applicable statutes and regulations considered pertinent to the issue on appeal. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ KRISTI L. GUNN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs