Citation Nr: 1305986 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 11-03 866 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for Type II diabetes mellitus claimed as the result of herbicide exposure, and if so, whether service connection is warranted. 2. Whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for prostate cancer claimed as the result of herbicide exposure, and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran had active service from August 1965 to January 1969. This matter came before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Lincoln, Nebraska, Regional Office (RO) which determined that new and material evidence had not been received to reopen the Veteran's claim of entitlement to service connection for Type II diabetes mellitus claimed as the result of herbicide exposure and denied service connection for prostate cancer claimed as the result of herbicide exposure. In January 2013, the Veteran submitted a Motion to Advance on the Docket. In January 2013, the Board granted the Veteran's motion. As to the issues of whether new and material evidence has been received to reopen the Veteran's claims of entitlement to service connection for Type II diabetes mellitus claimed as the result of herbicide exposure and prostate cancer claimed as the result of herbicide exposure, the Board is required to consider the question of whether new and material evidence has been received to reopen the Veteran's claims without regard to the RO's determination in order to establish the Board's jurisdiction to address the underlying claim and to adjudicate the claim on a de novo basis. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board has reviewed both the Veteran's physical claims files and his "Virtual VA" file so as to insure a total review of the evidence. The issues of service connection for Type II diabetes mellitus and prostate cancer claimed as the result of herbicide exposure are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Department of Veterans Affairs (VA) will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. In April 2006, the RO denied service connection for Type II diabetes mellitus claimed as the result of herbicide exposure. The Veteran was informed in writing of the adverse determination and his appellate rights in April 2006. He did not submit a notice of disagreement (NOD) with the determination. 2. In April 2006, the RO denied service connection for prostate cancer claimed as the result of herbicide exposure. The Veteran was informed in writing of the adverse determination and his appellate rights in April 2006. He did not submit a NOD with the determination. 3. Additional relevant original service personnel records have been received. CONCLUSIONS OF LAW 1. The April 2006 rating decision denying service connection for Type II diabetes mellitus claimed as the result of herbicide exposure is final. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 20.1103 (2012). 2. The April 2006 rating decision denying service connection for prostate cancer claimed as the result of herbicide exposure is final. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159(c), 3.326(a), 20.1103 (2012). 3. The claims for service connection for Type II diabetes mellitus and prostate cancer, claimed as the result of herbicide exposure, will be reconsidered. 38 C.F.R. § 3.156(c) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that a Claims Assistance Act of 2000 (VCAA) notice, as required by 38 U.S.C.A. § 5103(a), must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate his claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. In this decision, the Board reopens and remands the Veteran's claims of entitlement to service connection for both Type II diabetes mellitus and prostate cancer claimed as the result of herbicide exposure to the RO for further action. As such, no discussion of VA's duty to notify and assist is necessary. II. Application to Reopen Generally, absent the filing of a NOD within one year of the date of mailing of the notification of the initial review and determination of a Veteran's claim and the subsequent filing of a timely substantive appeal, a rating determination is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.200, 20.300, 20.1103 (2012). A. Prior RO Decision In April 2006, the RO denied service connection for both Type II diabetes mellitus and prostate cancer claimed as the result of herbicide exposure as the Veteran's "military discharge document shows no evidence of foreign service;" "there is no record showing that you were exposed to herbicides in service;" "no evidence showing that you were assigned to a unit known to have been stationed in the Demilitarized Zone;" and "your service medical records show no evidence that you complained or were treated for ... diabetes or prostate cancer." The Veteran was informed in writing of the adverse decisions and his appellate rights in April 2006. He did not submit a NOD with the decisions. The evidence considered by the RO in formulating its April 2006 rating decision may be briefly summarized. The Veteran's service treatment records do not refer to either Type II diabetes mellitus or prostate cancer. The Veteran's Armed Forces of the United States Report of Transfer or Discharge (DD Form-214) states that he had no foreign service. A November 2000 written statement from R. Chou, M.D., conveys that the Veteran was diagnosed with adenocarcinoma of the prostate. A December 2000 treatment record from R. Nabulsi, M.D. reports that the Veteran had been "recently diagnosed with new onset diabetes mellitus." B. New and Material Evidence Title 38 of the Code of Federal Regulations (2012) states, in pertinent part, that: (a) General. 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. *** (c) Service department records. (1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to: (i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name, as long as the other requirements of paragraph (c) of this section are met; (ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and (iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim. (2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. (3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. (4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim. 38 C.F.R. § 3.156 (2012). The additional documentation submitted since the April 2006 rating decision denying service connection for both Type II diabetes mellitus and prostate cancer claimed as the result of herbicide exposure includes additional original service personnel records which reflect that the Veteran performed temporary duty in the Republic of Korea during 1968. The receipt of such additional relevant service documentation mandates that the Veteran's claims of entitlement to service connection for both Type II diabetes mellitus and prostate cancer be reconsidered. 38 C.F.R. § 3.156(c) (2012). ORDER The Veteran's claim of entitlement to service connection for Type II diabetes mellitus, claimed as the result of herbicide exposure, will be reconsidered; the appeal is granted to this extent only. The Veteran's claim of entitlement to service connection for prostate cancer, claimed as the result of herbicide exposure, will be reconsidered; the appeal is granted to this extent only. REMAND A preliminary review of the record reflects that further development is necessary. A November 2012 written statement from S. L., M.D., indicates that he had been treating the Veteran for prostate cancer since January 2002. Clinical documentation from Dr. L. dated after January 2002 is not of record. Clinical documentation from VA facilities dated after August 2010 is not of record. VA should obtain all relevant VA and private clinical documentation which could potentially be helpful in resolving the Veteran's claims. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to all treatment of his Type II diabetes mellitus and prostate cancer, including the names and addresses of all health care providers whose records have not already been provided to VA. Upon receipt of the requested information and the appropriate releases, the RO should contact S. L., M.D., and all other identified health care providers and request that they forward copies of all pertinent records, including statements and treatment records, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Associate with the record any VA clinical documentation pertaining to the treatment of the Veteran not already of record, including that provided after August 2010. 3. Thereafter, the RO/AMC should take such additional development action as it deems proper with respect to the claims, including the conduct of any other appropriate VA examinations, and follow any applicable regulations and directives implementing the provisions of the VCAA as to its notice and development. 4. Thereafter, the RO/AMC should ensure that the development above has been completed in accordance with the remand instructions and undertake any other development action that is deemed warranted. Then adjudicate the Veteran's claims on a de novo basis. If the benefits sought on appeal remain denied, the Veteran should be provided a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the claims, to include a summary of the evidence and applicable law and regulations considered, since the issuance of the last SSOC. An appropriate period of time should be allowed for response before the case is returned to the Board. 5. Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002). _________________________________________________ HOLLY SEESEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs