Citation Nr: 1300611 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 10-32 351 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Whether new and material evidence has been submitted to reopen a previously denied claim for service connection for diabetes mellitus, type II, secondary to herbicide exposure. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R.N. Poulson, Counsel INTRODUCTION The Veteran served on active duty in the Air Force from December 1964 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which reopened the issue but denied the underlying service connection claim on the merits. Irrespective of the RO's action, the Board must decide whether new and material evidence sufficient to reopen the previously denied claim for service connection for retinopathy has been received. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Accordingly, the issue has been recharacterized as a claim to reopen. In December 2012, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims folder. The issues of whether new and material evidence has been submitted to reopen the previously denied claims of secondary service connection for prostate cancer; a skin condition, to include chloracne; PTSD; peripheral neuropathy of the bilateral upper and lower extremities; hypertension; an anxiety disorder; and erectile dysfunction have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's claim for service connection for diabetes mellitus, type II, was denied on September 30, 2008, and the Veteran did not appeal that decision. 2. Evidence received since the last final September 2008 decision is new, relates to an unestablished fact necessary to the issue of service connection for diabetes mellitus, type II, and raises a reasonable possibility of substantiating that underlying claim. 3. The Veteran's diabetes mellitus, type II, is presumed to be etiologically related to in-service exposure to herbicides. CONCLUSIONS OF LAW 1. The RO's September 2008 denial of service connection for diabetes mellitus, type II, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 (2012). 2. Evidence received since the last final September 2008 decision is new and material, and the claim for service connection for diabetes mellitus, type II, is reopened. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156, 20.1103 (2012). 3. The Veteran's diabetes mellitus, type II, is presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, & 5126 (West 2002 & Supp. 2012)). The VCAA imposes obligations on VA in terms of its duty to notify and to assist claimants. The Board has considered the legislation regarding VA's duty to notify and to assist claimants but finds that, given the favorable action taken herein with regard to the issue of whether new and material evidence has been received sufficient to reopen the previously denied claim for service connection for diabetes mellitus, type II, as well as the underlying de novo aspect of this appeal, no further discussion of these VCAA requirements is required with respect to this matter. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). II. New and Material Evidence A decision of the RO becomes final and is not subject to revision on the same factual basis unless an appeal is initiated within one year of the notice of decision, or within 60 days of the issuance of the statement of the case (SOC), whichever is later. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 19.129, 19.192, 20.302, 20.1103 (2012). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108. See Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). "New" evidence is evidence not previously submitted to agency decision makers. "Material" evidence is 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 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 determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA need not accept the patently incredible for purposes of reopening. Duran v. Brown, 7 Vet. App. 216 (1994). 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. See 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, supra. Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted. Id. at 1384; see also Butler v. Brown, 9 Vet. App. 167, 171 (1996). In July 2002, the Veteran filed a claim for service connection for diabetes mellitus, type II. In an unappealed November 2002 rating decision, the RO denied service connection, finding that there was no evidence of exposure to herbicides during service, to include required service in Vietnam. The Veteran did not file a notice of disagreement (NOD), and the November 2002 rating decision became final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 (2012). In December 2003, the Veteran requested that the previously denied service connection claim be reopened. In an August 2004 rating decision, the RO declined to reopen the Veteran's claim, finding that required service in Vietnam was not shown. The Veteran did not file an NOD, and the August 2004 decision became final. See id. In March 2008, the Veteran again attempted to reopen the previously denied service connection claim. In a September 2008 rating decision, the RO declined to reopen the Veteran's claim, finding that no new and material evidence had been submitted. The Veteran subsequently attempted to reopen the claim in September 2009. Evidence received since the September 2008 decision consists of VA treatment records; a memorandum on herbicide use in Thailand during the Vietnam era; a VA Compensation and Pension (C&P) Service Bulletin concerning herbicide exposure in Thailand during the Vietnam era; statements from the Veteran, to include his December 2012 hearing testimony; and a March 2011 medical opinion from Dr. E.M. E.M. stated "[i]t is least as likely, as not that [the Veteran's] condition is related to his [m]ilitary [s]ervice." This opinion suggests a possible relationship between current disability and military service. The evidence is new, as it was not considered by the RO in September 2008. The evidence is also material because it is supporting evidence of a nexus between a current disability and military service. In tending to substantiate the Veteran's claim by bolstering one element of a claim for service connection, the new evidence raises the reasonable possibility of substantiating the claim for service connection for that disorder. Thus, the Board finds that this additional evidence is both new and material and that reopening of the previously denied claim for service connection for diabetes mellitus, type II, is warranted. III. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Certain diseases are presumed by law to have been caused or aggravated by herbicide exposure. 38 U.S.C.A. § 1116; see also 38 C.F.R. §§ 3.307, 3.309. In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e), including diabetes mellitus, type II. 38 C.F.R. § 3.307(a)(6)(ii). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he developed diabetes from exposure to Agent Orange while serving in Thailand. Specifically, he asserts that he served at U-Tapao Air Base from November 1967 until November 1968. Service personnel records confirm the reported service in Thailand. The Board notes that the Veteran's MOS was electrical navigation equipment repairman, and that he was stationed with an armament electrical maintenance squad in Thailand. The Veteran further submitted statements and testimony that affirmed that he was required to perform his duties on the flight line. Additionally, the Veteran reported that while at U-Tapao, he resided in a small village where Agent Orange was stored. According to the Veteran, herbicides were sprayed to clear areas within and around U-Tapao to prevent the enemy from invading the base. According to guidelines found at M21-MR, Part IV, Subpart ii, Chapter 2, Section C (q), where a Veteran served in the United States Air Force during the Vietnam Era, at U-Tapao Air Force Base, as the Veteran did here, and worked near the base perimeter as shown by the evidence, herbicide exposure is conceded. A previous September 2009 Request for Information under PIES (Personal Information Exchange System) Code 13 to corroborate the Veteran's reported exposure to herbicides was unsuccessful, the Veteran's representative produced a VA C&P bulletin issued in May 2010 that acknowledges Agent Orange was used to defoliate airbase perimeters in Thailand between February 28, 1961 and May 7, 1975, and directed VA adjudicators to consider claims on a case-by-case basis to include the claimant's proximity to the airbase perimeter and military occupational specialty. In this case, the Veteran has demonstrated that he worked in proximity to the perimeter as part of his duties. In any event, the Veteran's personnel records indicate that he indeed served at U-Tapao Air Force Base in 1967 and 1968. The Board finds that Dr. E.M.'s positive nexus opinion was not supported by a rationale and, thus, is of limited probative value. The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). Additionally, the Board considers it significant that Dr. E.M. does not appear to have had access to the Veteran's claims folder. See 38 C.F.R. § 4.1 (2012). The Board acknowledges that claims folder review is not a requirement for medical opinions, and that a medical opinion may not be discounted solely because the opining clinician did not conduct such a review. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). However, Dr. E.M. did not indicate any familiarity with the Veteran's theory of service connection, notably, exposure to herbicides. In contrast, the Board finds that the Veteran's personnel records and lay contentions concerning his service and exposure to herbicides in Thailand are credible. The balance of the evidence is, at a minimum, in relative equipoise as to the issue of whether the Veteran was exposed to herbicides during his service in Thailand. Additionally, there is no affirmative evidence in the record to establish that the Veteran was not exposed to herbicides during service. Accordingly, having resolved reasonable doubt as to that question in the Veteran's favor, the Board finds that the Veteran was exposed to herbicides during his active duty service. The Veteran's private treatment records reflect a diagnosis of diabetes mellitus, type II. This condition was first noted in June 2002 by a private hospital. Subsequently, multiple VA treatment records reflect treatment for diabetes. The record supports the conclusion that the Veteran currently has diabetes. As the Veteran is presumed to have been exposed to herbicides and has been diagnosed with a disability presumptively linked to herbicide exposure, the Board finds that service connection for diabetes mellitus, type II, is warranted. ORDER New and material evidence has been received to reopen a claim for service connection for diabetes mellitus, type II; to this limited extent, the appeal of this issue is granted. Entitlement to service connection for diabetes mellitus, type II, secondary to herbicide exposure is granted. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs