Citation Nr: 1300595 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 10-23 855 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicides. 2. Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicides. REPRESENTATION Veteran represented by: Terrence J. O'Toole, Attorney ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2012, the Veteran's representative submitted additional evidence on his behalf after the claim was certified to the Board for appellate review. Because the representative's brief included a waiver of initial RO consideration of the evidence, the evidence is accepted for inclusion in the record on appeal, and referral to the RO for review is not necessary. 38 C.F.R. § 20.1304(c) (2012). FINDINGS OF FACT 1. An August 2002 rating decision denied service connection for diabetes mellitus, type II, the Veteran did not appeal that decision in a timely manner, and no new and material evidence was submitted within the appeal period. 2. Evidence received since the time of the final August 2002 rating decision raises the reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicides. 3. The Veteran served aboard a ship that operated on the Republic of Vietnam's close coastal waters for extended periods, and there is documentary evidence indicating crewmembers of the ship went ashore. 4. The Veteran's lay statements are competent and credible evidence that he personally went ashore in the Republic of Vietnam. CONCLUSIONS OF LAW 1. The August 2002 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2002); currently, 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. Evidence submitted to reopen the claim of entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicides, is new and material, and the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 3. Resolving the benefit of the doubt in favor of the Veteran, diabetes mellitus, type II, is presumed to have been incurred in service as a result of exposure to herbicides. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants entitlement to service connection for diabetes mellitus, type II, which constitutes a complete grant of the Veteran's claim. Therefore, no discussion of VA's duty to notify or assist is necessary. New and Material Evidence Pertinent procedural regulations provide that "[n]othing in [38 U.S.C.A. § 5103A] shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in [38 U.S.C.A. § 5108]." 38 U.S.C.A. § 5103A (f) (West 2002). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). New evidence means existing evidence not previously submitted to VA. 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). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims (Court) held the Board must first determine whether the claimant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court recently held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Even if no appeal is filed, a rating decision is not final if new and material evidence is submitted within the appeal period and has not yet been considered by VA. 38 C.F.R. § 3.156(b); Bond v. Shinseki , 659 F.3d 1362 (Fed. Cir. 2011). 4. Here, the Veteran did not submit any new and material evidence within the year following the August 2002 rating decision, nor did he file a timely appeal to the August 2002 rating decision. Therefore, it is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2002); currently, 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). In an April 2009 rating decision, the RO declined to reopen the Veteran's claim for service connection for diabetes mellitus, type II, to include as due to exposure to herbicides, and notified the Veteran of the decision that same month. The basis of the denial was the RO's finding that the evidence of record did not indicate the Veteran may have been physically present within the land borders of Vietnam, to include inland waterways, for the purpose of conceding exposure to Agent Orange. Thus, in order for the Veteran's claim to be reopened, new evidence must have been added to the record since the August 2002 rating decision that addresses this basis. Evidence submitted and obtained since the August 2002 rating decision includes information demonstrating the ship aboard which the Veteran served was anchored off Phan Thiet from July 25, 1968 to August 3, 1968. In addition, the evidence indicates that during this time period, many of the crewmembers went ashore to visit the junk patrol base. This evidence is both "new," as it had not been previously considered by VA, and it is "material" as it addresses the basis on which the Veteran's claim was previously denied. As new and material evidence to reopen a finally disallowed claim has not been submitted, the claim is reopened. Merits of the Claim The Veteran contends that his current diabetes mellitus, type II, is the result of exposure to herbicides during active duty. In various written statements, he asserts that he is entitled to presumptive service connection for his diabetes mellitus, type II, based upon his in-country assignment in Vietnam. The Veteran's representative asserts that the evidence demonstrates the Veteran served aboard a ship known to have sailed in brown waters, and as a result, he is entitled to the presumption of service connection for his diabetes mellitus, type II, based on exposure to herbicides. The law provides that "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." 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307. If a Veteran was exposed to an herbicide agent 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 diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes or adult-onset diabetes), 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) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). Section 3.307(d)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(d)(6)(i). Agent Orange is generally considered an herbicide agent and will be so considered in this decision. Section 3.307(d)(6) also provides that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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. 38 C.F.R. § 3.307(d)(6)(iii). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. For purposes of applying the presumption of exposure to herbicides under 38 C.F.R. § 3.307(a)(6)(iii), "service in the Republic of Vietnam" means that a veteran must have been present within the land borders of Vietnam to obtain the benefit of the presumption of herbicide exposure. See Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008). Preliminarily, the Board observes that VA treatment records from March 2006 to February 2010 reflect a diagnosis of diabetes mellitus, type II. As such, the Board finds the Veteran has established a current disability for the purpose of service connection. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim). With regard to in-service exposure to herbicides, service treatment records demonstrate that the Veteran served aboard the USS Steinaker during active duty. Although the exact dates aboard ship were not confirmed, service treatment records indicate the Veteran's November 1968 separation examination was performed aboard the USS Steinaker. Significantly, a September 1968 service treatment record shows the Veteran signed a statement while aboard the USS Steinaker indicating that by virtue of having been in Vietnam, he recognized that he had been exposed to malaria and that he would have to continue his anti-malaria tablets after leaving Vietnam. In addition, information received from the National Personnel Records Center indicates the USS Steinaker served in the official waters of the Republic of Vietnam from May 20, 1968 to May 31, 1968; June 4, 1968 to June 6, 1968; June 13, 1968 to July 7, 1968; July 21, 1968 to August 13, 1968; and September 8, 1968 to October 1, 1968. VA has provided a list of ships as a resource for determining whether a particular Navy or Coast Guard Veteran of the Vietnam era is eligible for the presumption of Agent Orange herbicide exposure based on operations of the Veteran's ship. This list indicates the USS Steinaker was a ship that operated on Vietnam's close coastal waters for extended periods. Documentary evidence has been obtained for ships in this category showing that some crewmembers actually went ashore. Because shore activity of some crewmembers was documented, any Veteran aboard the ship at the time of documented shore activity is eligible for the presumption of exposure if the Veteran provides a lay statement of personally going ashore. With respect to the USS Steinaker, the record demonstrates the ship anchored off Phan Thiet from July 25, 1968 to August 3, 1968, with crewmembers going ashore to visit Junk Base. In March 2009, the Veteran submitted evidence regarding his service aboard the USS Steinaker in 1968 and asserted that the evidence was proof of his in-country assignment in Vietnam. Included in the evidence was a picture of the Veteran amidst the crew of the weapons division. The documents described how the ship's fire power was continually provided to forces ashore and was used without hesitation in the close support of friendly troops in the area of Phan Thiet. Additionally, the evidence reported that many of the rated men in the crew were able to go ashore to visit the junk patrol base in Phan Thiet and see the conditions of the ground war in Southeast Asia. In his July 2009 notice of disagreement, the Veteran argued that he had presented evidence fulfilling all the provisions of the Haas case and therefore was entitled to the presumption of exposure to herbicides. Specifically, he noted that the evidence must show a Veteran was serving as a crewmember aboard a ship when it docked on the shore of Vietnam. Additionally, he noted that a Veteran must provide a statement reporting that he left the ship and went ashore and that there must not be substantial evidence contradicting the Veteran's statement. Upon review, the Board finds the evidence supports the presumption of exposure to herbicides for the purpose of establishing entitlement to service connection for diabetes mellitus, type II. Service treatment records demonstrate the Veteran served aboard the USS Steinaker in 1968 during a time when it served in the official waters of the Republic of Vietnam. In addition, documentary evidence shows that crewmembers of the USS Steinaker went ashore at Phan Thiet, and the Veteran has submitted evidence indicating he was aboard the USS Steinaker when it docked at Phan Thiet. Finally, the Board will liberally construe the Veteran's repeated assertions of his in-country assignment in Vietnam, to include his statements acknowledging the requirement that a Veteran who served aboard a ship such as the USS Steinaker have gone ashore, as lay testimony that he did, indeed, go ashore when the USS Steinaker was docked at Phan Thiet from July 25, 1968 to August 3, 1968. Here, the Veteran's contentions are consistent and credible, and nothing in the record contradicts the Veteran's statements. See Smith v. Derwinski, 1 Vet. App. 235, 237-38 (1991); Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005) (noting the Veteran is competent to report the occurrence of observable events). Therefore, resolving the benefit of the doubt in favor of the Veteran, diabetes mellitus, type II, is presumed to have been incurred in service as a result of exposure to herbicides, and as such, service connection is warranted. 38 U.S.C.A. § 1116(f); 38 C.F.R. §§ 3.307, 3.309(e); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence having been submitted, the claim of entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicides, is reopened. Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicides, is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs