Citation Nr: 1103865 Decision Date: 01/31/11 Archive Date: 02/08/11 DOCKET NO. 09-17 365 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for diabetes mellitus, type II, associated with herbicide exposure. REPRESENTATION Veteran represented by: Wade R. Bosley, Attorney ATTORNEY FOR THE BOARD M. Young INTRODUCTION The Veteran had active military duty from November 1963 to January 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. FINDINGS OF FACT 1. In a January 2003 rating decision, the RO denied the Veteran's claim for entitlement to service connection for diabetes mellitus, type II, associated with herbicide exposure on the basis that the Veteran did not serve in the Republic of Vietnam during the Vietnam era; the Veteran did not appeal the January 2003 decision within one year of being notified and the decision became final. 2. The additional evidence received since the January 2003 RO decision is new, in that it is not cumulative and was not previously considered by decision makers, however, it is not material because it does not relate to an unestablished fact or raise a reasonable possibility of substantiating the Veteran's claim. CONCLUSIONS OF LAW 1. The January 2003 rating decision that denied the Veteran's claim of entitlement to service connection for diabetes mellitus, type II associated with herbicide exposure is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2010). 2. New and material evidence has not been received to reopen the Veteran's claim of entitlement to service connection for diabetes mellitus, type II, associated with herbicide exposure. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In claims to reopen based on new and material evidence, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, VA is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in June 2005 that fully addressed all required notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. With respect to the Kent requirements, the Veteran was advised of the basis of the earlier denial of his claim for service connection and what type of evidence was necessary to reopen his claim. Definitions of new and material evidence were also provided. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, in March 2006, the RO provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (as a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). A claimant may submit an application or claim to reopen a disallowed claim, at which point the Secretary, by regulation, must provide some limited assistance. See Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334, 1341 (Fed. Cir. 2003) (VA will perform document gathering assistance even before claim is reopened); see 38 C.F.R. § 3.159(c)(1)-(3) (2010). In this case, the RO obtained service personnel and treatment record and VA treatment records and the Veteran submitted private treatment records. The Veteran submitted an Internet document which discusses the USS Hawkins. The Veteran also submitted a letter from the Regular Defence Force Welfare Association, Inc., referring to a request for an investigation/review of statements of principle relating to the spraying of herbicides and defoliants in Vietnam. The RO requested and received information from the U.S. Army and Joint Services Records Research Center (USASCRUR). Neither the Veteran nor his representative has 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. 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 McLendon v. Nicholson, 20 Vet. App. 79 (2006). A VA examination need not be provided with regard to the Veteran's claim to reopen his previously denied claim of entitlement to service connection for diabetes mellitus. In the absence of new and material evidence submitted by the claimant, the duty to assist by affording the Veteran a VA examination is not triggered. See 38 U.S.C.A. § 5103A(d), (g); Paralyzed Veterans of Am., 345 F.3d 1334, 1353 (Fed. Cir. (holding that VA need not provide a medical examination or medical opinion until a claim is reopened); Anderson v. Brown, 9 Vet. App. 542, 546 (1996) (holding that unless the Veteran has submitted new and material evidence warranting the reopening of his claim, the duty to assist does not attach). As will be discussed below, new and material evidence sufficient to reopen the Veteran's previously denied claim of entitlement to service connection for diabetes mellitus has not been received and the claim is not reopened. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. 183. New and Material Evidence As noted above, service connection for diabetes mellitus, type II, associated with herbicide exposure was previously denied in a January 2003 rating decision. Although the RO has determined that new and material evidence sufficient to reopen the previously denied claim has not been received, the Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Barnett, 83 F.3d 1380. The claim of entitlement to service connection for diabetes mellitus, type II, associated with herbicide exposure may be reopened if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). New evidence is sufficient to reopen a claim if it contributes to a more complete picture of the circumstances surrounding the origin of a Veteran's disability, even where it may not convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran petitioned to reopen his claim in August 2004. Under the applicable provisions, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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) (2010). It appears that the evidence relevant to the issue of entitlement to service connection for diabetes mellitus, type II, associated with herbicide exposure before the RO at the time of the last final decision in January 2003 included: the Veteran's treatment records, the Veteran's service personnel records; his service separation medical examination reports; VA outpatient treatment records, private treatment records from Dr. CKA, and the Veteran's statements. In a written statement received from the Veteran at the RO in November 2002, the Veteran stated "I did not set foot on Vietnam soil, but aircraft constantly flew over our ship, having returned from flying over land. Our ship operated within 1/4 miles of the Vietnam shoreline, depending on our mission." The RO found that it was not sufficient to establish that diabetes mellitus, type II, associated with herbicide exposure was incurred in or aggravated by military service without first establishing that the Veteran was physically in Vietnam. The RO did not concede Agent Orange exposure for the purpose of granting service connection because the required service in Vietnam was not shown nor was there evidence of exposure to herbicides in any other period of service. Therefore, the Veteran's claim of entitlement to service connection for diabetes mellitus, type II associated with herbicide exposure was denied. The January 2003 rating decision was not appealed and became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Newly received evidence since the last final denial of the Veteran's claim in January 2003 includes the Veteran's VA and private treatment records, reply from USASCRUR, a memorandum dated in July 2009 of formal findings by the RO regarding no herbicides exposure, an Internet document which discusses the USS Hawkins, a letter from the Regular Defence Force Welfare Association, Inc., referring to a request for an investigation/review of statements of principle relating to the spraying of herbicides and defoliants in Vietnam, and the statements of the Veteran and his representative. VA and private treatment records describe treatment for diabetes mellitus. There is no indication, however, that any of the Veteran's treatment providers have opined as to any relationship between the Veteran's diabetes mellitus and any period of active service or a presumptive period thereafter. The Internet document submitted by the Veteran provides a history of the voyages of the USS Hawkins, but does not establish where the ship was specifically located off the shores of Vietnam during the Veteran's period of service. Furthermore, the letter requested an investigation of statements of principle relating to the spraying of herbicides and defoliants in Vietnam. The letter refers to a press release from the Minister for Veterans Affairs, which acknowledges that Royal Australian Navy and army personnel serving in Vietnam were exposed to dioxins through the manner in which ships' water was distilled aboard the HMAS Sydney and her escorts. The letter from the Regular Defence Force Welfare Association, Inc. refers to exposure by Australian navy and army personnel but does not show exposure by United States military personnel. The reply from USASCRUR showed they reviewed deck logs from the period of November and December 1965; and the overall findings do not place the ship in the rivers of Vietnam. The Veteran and his representative maintain that the Veteran served on the USS Hawkins, which served close to the coastline of Vietnam, and the area where the various rivers discharged their water into the gulf. The Veteran further claims that he showered with water processed from the water in the gulf that would contain water that flowed throughout the banks of the rivers in Vietnam that were heavily sprayed with Agent Orange. Further, he claims to have drunk water processed from the same confluence of waters from the river and sea. In addition the Veteran reports that he saw many aircraft flying low over the ship towards the coastline. The Veteran's representative suggest that it is reasonable to assume that some of the aircraft either were going to distribute agent Orange, or were exposed and possibly discharging the substance over the ship. The Board notes that the above-described evidence was not before the RO at the time of the January 2003 rating decision. Thus, the Board finds that the evidence as to the Veteran's claim of entitlement to service connection for diabetes mellitus, type II, associated with herbicide exposure received since the last final denial in January 2003 is new in that it was not previously considered by agency decision makers, or cumulative or redundant of other evidence of record. However, the new evidence is not material in that it does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim. Specifically, the new evidence does not establish that the Veteran has the required service in Vietnam to concede Agent Orange exposure during any period of active service or a presumptive period thereafter, or that there exists a medical nexus between the Veteran's diabetes mellitus and his period of active service. Accordingly, the Board must conclude that new and material evidence to reopen the claim for service connection for diabetes mellitus has not been received. As such, the January 2003 decision remains final, and the appeal must be denied. As the Veteran has not fulfilled the threshold burden of submitting new and material evidence to reopen the finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER The application to reopen the claim of entitlement to service connection for diabetes mellitus, type II associated with herbicide exposure is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs