Citation Nr: 1315765 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 10-30 110 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service-connection for type II diabetes mellitus, to include whether new and material evidence has been received to reopen a previously denied claim. 2. Whether new and material evidence has been received to reopen a previously denied service-connection claim for gastritis. 3. Entitlement to service connection for a stomach condition, to include gastritis, gastroesophageal reflux disease (GERD) and hiatal hernia. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD V. Chiappetta, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from April 1969 to January 1973. These matters are before the Board of Veterans' Appeals (the Board) on appeal from a November 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In February 2011, the Veteran testified before the undersigned at a Travel Board hearing. A transcript of that hearing has been associated with the Veteran's VA claims folder. As discussed in more detail below, the Board is reopening the Veteran's service-connection claim for gastritis herein. The evidence of record demonstrates that the Veteran has been diagnosed with multiple stomach conditions during the period under review, to include gastritis, GERD and hiatal hernia. Based on the Veteran's description of his symptoms and the information submitted, the Board finds that his reopened gastritis claim also reasonably encompasses his other diagnosed stomach disabilities. Cf. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). As such, the Board is now expanding the Veteran's reopened claim to include consideration of whether service connection is warranted for any stomach disability, to include gastritis, GERD and/or a hiatal hernia. The Veteran's reopened and expanded service-connection claim for a stomach disability is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. FINDINGS OF FACT 1. An unappealed March 2005 rating decision denied the Veteran's petition to reopen a service-connection claim for gastritis. 2. The evidence associated with the claims file subsequent to the March 2005 rating decision is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the Veteran's gastritis claim, and raises a reasonable possibility of substantiating the claim on the merits. 3. An unappealed August 2008 rating decision denied the Veteran's petition to reopen a service-connection claim for diabetes mellitus. 4. The evidence associated with the claims file subsequent to the August 2008 rating decision is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the Veteran's diabetes claim, and raises a reasonable possibility of substantiating the claim on the merits. 5. The Veteran has a current diagnosis of type II diabetes mellitus, requiring treatment with insulin and restricted diet. 6. The Veteran served in Thailand as a security policeman during the Vietnam era as a member of the U.S. Air Force, and his service has been shown to have involved activity around the perimeter of the Korat Royal Thai Air Force Base. CONCLUSIONS OF LAW 1. The March 2005 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2012). 2. New and material evidence having been submitted, the claim for service connection for a stomach disability is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The August 2008 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2012). 4. New and material evidence having been submitted, the claim for service connection for diabetes mellitus is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 5. The criteria for service connection for type II diabetes mellitus have been met. 38 U.S.C.A. §§ 1110, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.313 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has substantially satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). To the extent that there may be any deficiency of notice or assistance, to include any inadequate notice under Kent v. Nicholson, 20 Vet. App. 1 (2006), there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision. II. New and Material Evidence This appeal arises out of the Veteran's contention that he has a current stomach disability that had its onset in, or is otherwise related to his period of active duty service. The Veteran also asserts that his current diabetes mellitus should be presumed to be related to in-service exposure to herbicides. The Veteran filed an original service-connection claim for gastritis in September 2002, which the RO denied in January 2003. The RO subsequently denied the Veteran's petitions to reopen this claim in rating decisions dated in May 2004 and March 2005. The Veteran did not appeal the RO's March 2005 decision, and it became final. See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2012). In April 2006, the Veteran requested that his previously denied service-connection claim for gastritis be reopened. The RO denied this request in a July 2006 rating decision. Within one year, in March 2007, the Veteran submitted additional medical evidence clarifying his diagnosis. The RO subsequently denied the Veteran's petition to reopen again in July 2007. Within one year of the RO's July 2007 decision, in April 2008, the Veteran again submitted additional evidence, this time pertaining to treatment he received during the 1970s and 1980s for his stomach condition, and the RO in turn denied the Veteran's petition to reopen in August 2008. In July 2009, the Veteran filed another petition to reopen his gastritis claim, but this time, only resubmitted copies of evidence already of record. Nevertheless, the RO scheduled the Veteran for a VA examination, which took place within one year of the August 2008 rating decision in August 2009. The RO reopened the Veteran's claim based on the findings of the August 2009 VA examiner, and denied it on the merits in the above-referenced November 2009 rating decision. The Veteran disagreed with the RO's determination and perfected this appeal. Under 38 C.F.R. § 3.156(b), receipt of new and material evidence prior to the expiration of an appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. Thus, the Veteran's April 2006 request to reopen his gastritis claim remains at issue, based on the Veteran's submission of relevant evidence within the appeal periods following the RO's July 2006 and July 2007 respective rating decisions, and the RO's development of the case for a VA examination within the one-year appeal period following its August 2008 rating decision. With respect to the Veteran's claim for diabetes, the Veteran filed his original service-connection claim in September 2002, and the RO denied the claim in a January 2003 rating decision. The RO subsequently denied the Veteran's requests to reopen his diabetes claim in May 2004 and August 2008 rating decisions. The Veteran did not appeal the RO's August 2008 decision, and it became final. As such, the August 2008 rating decision is final, with respect to this issue. See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2012). It appears that without any prompting by the Veteran, the RO readjudicated the issue of whether new and material evidence has been received to reopen the Veteran's diabetes claim on its own in November 2009, specifically noting that the Veteran did not submit any additional evidence in support of his diabetes claim within the one-year period following the August 2008 rating decision. The Veteran disagreed with the RO's decision not to reopen his claim, and perfected this appeal. To reopen a claim, new and material evidence must be presented or secured. 38 U.S.C.A. § 5108 (West 2002). "The Board does not have jurisdiction to consider [the previously-adjudicated claim] unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). When determining whether a claim should be reopened, the credibility of the newly-submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). "New" evidence is defined as 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. 38 C.F.R. § 3.156(a) (2012); see Shade v. Shinseki, 24 Vet. App. 110, 118 (2010) (finding that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim is a component of the question of what is new and material evidence). With respect to the Veteran's gastritis claim, since the March 2005 rating decision the Veteran has submitted two letters from his treating physicians. The first, dated December 4, 2007 from Dr. E.M., indicates that the Veteran received treatment for gastritis in the 1980s. The second, dated December 11, 2007 from Dr. C.D.P. indicates that the Veteran received treatment for gastritis in the 1970s. These letters support the Veteran's assertion that he has experienced continuous stomach problems since his time in service to the present day. The evidence is new in that these indicators of prior treatment were not of record at the time of the March 2005 rating decision. The evidence is also "material," as these indicators relate to an unestablished fact necessary to substantiate the claim [nexus or relationship] and tend to raise a reasonable possibility of substantiating the claim. As noted above, for purposes of determining whether the claim should be reopened, the Board will presume the credibility of the newly-submitted evidence. See Justus, 3 Vet. App. at 513. The Board therefore reopens the Veteran's service-connection claim for gastritis. With respect to the Veteran's diabetes claim, since the August 2008 rating decision a VA Memorandum has been associated with the claims file discussing herbicide use in Thailand during the Vietnam era. In particular, this Memorandum indicates that "if a veteran's MOS (military occupational specialty) or unit is one that regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides, including herbicides." Notably, the Memorandum specified that "[s]ecurity police units were known to have walked the perimeters . . . ." This Memorandum is clearly new, in that it was not of record in August 2008, and is "material" because it relates to an unestablished fact necessary to substantiate the claim [in-service herbicide exposure] and tends to raise a reasonable possibility of substantiating the claim. Indeed, the Veteran's service personnel records clearly demonstrate service in Thailand as a member of a security police squadron. The Board therefore reopens the Veteran's service-connection claim for diabetes mellitus as well. III. Service Connection In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Pertinently, if a Veteran was exposed to Agent Orange during service, certain listed diseases, including diabetes, are presumptively service-connected if they manifest to a degree of 10 percent or more at any time after service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). In this case, it is undisputed that the Veteran has a current diagnosis of diabetes mellitus, type II. Indeed, the key question at issue is whether the Veteran was in fact exposed to Agent Orange during his period of active duty service. In the case of a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, namely from February 28, 1961, to May 7, 1975, VA regulations provide that he shall be presumed to have been exposed during such service to an herbicide agent, including Agent Orange, 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(a)(6)(iii). The Veteran in this case did not serve in the Republic of Vietnam, and he does not so contend. Rather, his service personnel records confirm service at Korat Air Force Base in Thailand from July 1970 to September 1970. The Veteran asserts that he was exposed to herbicides during this Thailand service while patrolling the perimeter of the base in performance of duties as a member of the security police squadron. Notably the VA Memorandum of record entitled "Herbicide use in Thailand during the Vietnam Era" indicates that sporadic use of non-tactical (commercial) herbicides occurred within fenced perimeters of certain bases in Thailand during the Vietnam era. VA's Adjudication Procedures Manual, M21-1MR, indicates that the Compensation & Pension Service (C&P) has determined that special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of Thailand military bases. Crucial to this case, the M21-1MR specifies that herbicide exposure should be conceded if a U.S. Air Force veteran served during the Vietnam Era at one of the Royal Thai Air Force Bases, to include Korat, and served as an Air Force security policeman. See M21-1MR, IV.ii.2.C.10.q. As noted above, the Veteran did in fact serve in the U.S. Air Force, and his service treatment records and personnel records confirm that he was stationed at Korat Air Force Base in Thailand during the Vietnam era. His personnel records also confirm his military occupational specialty (MOS) as a security policeman. See the Veteran's Chronological Listing of Service; see also the Veteran's DD-214. He has specifically testified that his duties as a security police officer required him to patrol the perimeter of the base. See the January 5, 2010 RO hearing transcript, at 14. The Veteran is certainly competent to attest to his in-service duties and experiences, and the Board finds no reason to call into question the credibility of his testimony. Based on the Veteran's Air Force service at the Korat Air Force Base in Thailand during the Vietnam era as a member of the security police squadron, his competent and credible testimony describing his duties patrolling the perimeter of the base, and the instructions outlined in VA's Adjudication Manual referenced above, the Board concedes that the Veteran sustained in-service exposure to herbicides, to include Agent Orange, during his Thailand service in 1970. Type II diabetes mellitus is listed in § 3.309(e) as one of the diseases presumed to be service-connected if a Veteran was exposed to an herbicide agent during active military duty, and the disease became manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.309(e), 3.307(a)(6)(ii). In this case, the Veteran was diagnosed with type II diabetes mellitus in 2002, which was managed at the time with dietary modifications. See the May 22, 2002 VA Primary Care Addendum Report. Review of the Veteran's recent VA medication list demonstrates that his diabetes treatment now requires insulin injections. Thus, at the very least, the Veteran's diabetes has manifested to a degree of 10 percent since his separation from service. See 38 C.F.R. § 4.119, Diagnostic Code 7913 (indicating that a 10 percent rating is warranted for diabetes mellitus managed by restricted diet, and a 20 percent rating is warranted for diabetes requiring insulin and restricted diet). As such he has met the regulatory requirements at 38 C.F.R. §§ 3.309(e) and 3.307(a)(6), and his diabetes is presumed connected to his active military service. No evidence has been presented to refute this presumption. The Veteran's claim for service connection is therefore granted. ORDER New and material evidence having been received, the claim of entitlement to service connection for gastritis is reopened; to this extent only, the appeal is granted. New and material evidence having been received, the claim of entitlement to service connection for type II diabetes mellitus is reopened. Service connection for type II diabetes mellitus is granted. REMAND Although further delay is regrettable, the Board observes that additional development is required prior to adjudicating the Veteran's remaining issue on appeal. I. Veterans Claims Assistance Act of 2000 (VCAA) notice In light of the fact that the Board has reopened and expanded the Veteran's gastritis claim to include consideration of whether service connection may be awarded for any stomach condition, to include gastritis, GERD, and a hiatal hernia, the Veteran should be afforded updated and adequate notice of the evidence necessary to support this expanded claim as per the VCAA. II. Outstanding VA and private records The Veteran appeared for a VA esophagus and hiatal hernia examination in August 2009. The VA examiner diagnosed the Veteran with GERD alone. Notably however, the Veteran testified in February 2011 that his stomach was scoped in the prior year (January 2010) and an additional disability of gastritis was identified. He did not identify whether he underwent this procedure at VA's medical facilities or with a private physician. See the February 2011 hearing transcript, at 4-5 (indicating that his procedure occurred "last January," and that he has had no medical appointments so far "this year"). The Veteran also testified that, at the time of his hearing, he was seeing VA for treatment every five or six months. See id. at 7. While the Veteran's VA medication list dated through February 2011 has been associated with the claims file, no records of actual VA medical treatment dated subsequent to July 2009 are currently of record. It is the duty of the VA to assist a veteran in obtaining records from Federal agencies, including VA Medical Centers. See 38 U.S.C.A. § 5103A (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, any outstanding VA treatment reports dated from July 2009 to the present day that are relevant to the disability at issue should be requested and obtained. Further, in light of the fact that the Board is remanding his appeal for other reasons at this time, the Board believes the Veteran should also be afforded an opportunity to submit, or to request that VA obtain, any additional relevant private treatment records that remain outstanding that he believes would be supportive of his claim, to include any records pertaining to stomach procedures (scope) performed outside of VA in January 2010. III. Social Security Administration (SSA) records In March 2007, the Veteran submitted to VA copies of his favorable SSA determination for disability benefits. It appears from this decision that the Veteran was deemed eligible for these benefits in part due to the effects of his GERD disability. See the January 2007 SSA Decision, at 3. The record does not reflect that any request has been made for the Veteran's SSA records. Indeed, any records associated with that claim, particularly medical records, could shed additional light on the issue currently before the Board. As such, these records should be obtained for consideration in connection with the instant appeal. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (finding that as long as a reasonable possibility exists that SSA records may be relevant to a Veteran's claim, VA must assist him or her in obtaining the records); see also Murincsak v. Derwinski, 2 Vet. App. 363 (1992) (holding that VA's duty to assist includes obtaining records from SSA and giving them appropriate consideration and weight in determining whether to award or deny VA disability compensation benefits). IV. VA examination The Veteran claims that he has a current stomach disability that had its onset in, or is otherwise related to his period of active duty service. In particular, the Veteran asserts that his disability began after eating a boxed lunch during service in Thailand, which caused him to vomit multiple times. His service treatment records confirm that the Veteran took ill after eating a dining hall box lunch, and note a diagnosis of "gastritis acute." He asserts that he has experienced stomach problems since his time in service to the present day, and has submitted letters from his prior physicians indicating that the Veteran received treatment for gastritis in the 1970s and 1980s. At the time the Veteran filed his April 2006 petition to reopen his claim, the Veteran had diagnoses of gastritis, GERD and a hiatal hernia. See, e.g., the January 27, 2006 report of Dr. S.A.Z. Notably, upon review of the Veteran's past medical history and after examination of the Veteran in August 2009, VA examiner J.M. diagnosed the Veteran with GERD only, and concluded that the Veteran's solitary episode of acute gastritis after eating a boxed lunch in Thailand and his current symptoms "in no way relate to each other, and the veteran's current condition is not a progression of his in-service complaints." As noted above, the Veteran has recently testified that his stomach was scoped in January 2010, at which time gastritis was diagnosed again. See the February 2011 hearing transcript, at 5. Although, medical reports from this January 2010 procedure are not currently of record, it does appear that the Veteran underwent an esophagogastroduedenoscopy in November 2009, and that "antral gastritis with erosions" was in fact diagnosed. See the November 30, 2009 Procedure Report by Dr. A.G.C. In light of the fact that the Veteran had multiple stomach disabilities diagnosed at the time he filed his petition to reopen in April 2006, and because it appears the Veteran's current diagnoses may now include gastritis in addition to GERD, the Board believes that an updated VA examination should be scheduled so that his current diagnoses can be clarified. In addition, the Board wishes to make clear that the threshold requirement that a claimant have a current disability before service connection may be awarded for that disability is satisfied when a claimant has a disability at the time a claim for compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). As such, even if the Veteran does not currently have gastritis or hiatal hernia diagnoses, because these disabilities were present at the time the Veteran filed his April 2006 petition, medical opinions addressing their etiologies should be requested and obtained. Thus, the Board believes the Veteran's reopened service connection claim for a stomach disability, to include gastritis, GERD and hiatal hernia, should be remanded to the AOJ so that a VA examination may be scheduled to clarify the Veteran's diagnosis or diagnoses, and to address the etiology of all diagnosed conditions manifesting during the period under review. See Charles v. Principi, 16 Vet. App. 370 (2002); 38 C.F.R. § 3.159(c)(4) (2012). Accordingly, the case is REMANDED to the AOJ for the following actions: 1. Send the Veteran an updated notice letter in compliance with the VCAA addressing his now expanded service-connection claim for any stomach condition, to include gastritis, GERD and hiatal hernia. 2. Ask the Veteran to identify the provider(s) of any treatment he has received for his claimed stomach disability or disabilities, to include the provider who administered his stomach procedure (scope) in January 2010, and to complete any releases necessary for VA to secure records of such treatment or evaluation. Obtain complete records of all such treatment and evaluation from all sources identified by the Veteran. Following receipt of authorization, two attempts should be made to obtain relevant private treatment records, unless a formal finding can be made that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012); 38 C.F.R. § 3.159(c)(1). 3. Secure for the record copies of all relevant VA treatment the Veteran has received since July 2009 from VA facilities in Little Rock, Arkansas, or from any other VA facility identified by the Veteran. Efforts to obtain these records should be memorialized in the Veteran's claims file. If any requested records are unavailable, the claims file should be clearly documented to that effect, and the Veteran must be notified of any inability to obtain these records in accordance with 38 C.F.R. § 3.159(e). 4. With any needed assistance from the Veteran, obtain from the SSA records pertinent to the Veteran's claim for disability benefits, as well as the medical records relied upon concerning that claim. If such records are unavailable, the claims file should be clearly documented to that effect and the Veteran must be notified of any inability to obtain these records in accordance with 38 C.F.R. § 3.159(e). 5. After completion of the development described in items (1)-(4) above, schedule the Veteran for an appropriate VA examination for the purposes of assessing the nature and etiology of his claimed stomach disability or disabilities. The entire claims file (i.e., both the paper claims file and any relevant medical records contained in Virtual VA), and a copy of this REMAND should be made available and be reviewed by the examiner in conjunction with his or her examination, and the examiner should confirm that such records were available for review. The examiner should clarify the Veteran's current stomach diagnoses, if any. For each disability diagnosed, the examiner should determine whether it is at least as likely as not (50 percent or greater probability) that the disability is related to the Veteran's period of active service, to include his documented in-service treatment for acute gastritis following consumption of a boxed lunch in Thailand. The examiner should consider the Veteran's assertion that he has experienced recurrent stomach problems from his time in service to the present day, with medical treatment for gastritis in the 1970s and 1980s even though actual reports of such treatment are unavailable. The examiner also should take notice of the fact that the Veteran has been diagnosed with gastritis, GERD, and a hiatal hernia during the period under review. Should any of these three disabilities have resolved by the time of the examination, an opinion must still be provided as to whether the Veteran's prior history of any such disability is as likely as not related to the Veteran's active duty service. See McLain v. Nicholson, 21 Vet. App. 319 (2007). All opinions must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state, and provide a supporting explanation as to why an opinion cannot be provided without resort to speculation. 6. After the development requested above has been completed to the extent possible, the record (to include any and all relevant evidence added to the Veteran's Virtual VA folder) should again be reviewed, and the Veteran's service-connection claim for a stomach disability should be readjudicated. If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. § 5109B (West Supp. 2012). ______________________________________________ M. Sorisio Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs