Citation Nr: 1335788 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 11-29 182 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for diabetes mellitus, type 2, to include as due to exposure to herbicides. 2. Entitlement to service connection for diabetes mellitus, type 2. REPRESENTATION Appellant represented by: African American PTSD Association ATTORNEY FOR THE BOARD M. N. Hyland, Senior Counsel INTRODUCTION The Veteran had active duty from March 1968 to June 1971 with service in the Republic of Vietnam. This matter comes before the Board of Veterans Appeals (Board) on appeal from a March 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In the October 2011 Substantive Appeal, the Veteran requested a Board hearing. No hearing was scheduled for the Veteran; however, the Board is granting the full benefit sought by the Veteran in this appeal. As such, the Board finds that the Veteran was not prejudiced by VA's failure to schedule the requested hearing. FINDINGS OF FACT 1. In an unappealed rating decision issued in July 2005, the RO denied reopening the claim of entitlement to service connection for diabetes mellitus, type 2. 2. The evidence received since the July 2005 RO decision is new and material as it relates to an unestablished fact necessary to substantiate the claim. 3. As the Veteran served in the Republic of Vietnam during the Vietnam era, his exposure to herbicides is presumed. 4. The evidence of record is at least in a state of relative equipoise in showing that the Veteran's diabetes mellitus, type 2, is at least as likely as not due to or the result of his presumed exposure to herbicides during service in Vietnam. CONCLUSIONS OF LAW 1. The unappealed July 2005 RO decision that denied service connection for diabetes mellitus, type 2, is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2013). 2. The evidence received since the July 2005 RO decision is both new and material; the claim of entitlement to service connection for diabetes mellitus, type 2, is reopened. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2013). 3. The criteria for establishing service connection for diabetes mellitus, type 2, have been met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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, and 5126 (West 2002) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). In this decision, the Board reopens the Veteran's previously denied diabetes mellitus, type 2, claim and then allows that claim on the merits. As these outcomes are completely favorable to the Veteran, no further discussion of VA's duties to notify and assist is necessary. II. Reopened Claim The Veteran's claim of service connection for diabetes mellitus, type 2, was originally denied by a January 2002 rating decision. The Veteran was properly notified of that decision and it became final. 38 U.S.C.A. § 7105(c). A January 2004 rating decision denied reopening of the same claim, finding that new and material evidence had not been submitted to reopen the claim. The Veteran was properly notified of that decision and he did not disagree with the decision. Id. A July 2005 rating decision again denied reopening of the claim, finding that new and material evidence had not been submitted to reopen the claim. Although new VA treatment records dated after July 2005 were associated with the claims file in May 2006, these records were not "new and material" evidence because they simply showed that the Veteran had a diagnosis of diabetes mellitus, type 2, and continued to receive treatment for this disability. These facts were known at the time of the July 2005 rating decision, so this evidence is cumulative of the evidence that was already associated with the claims file at the time of the July 2005 rating decision. As such, the Board finds that no new and material evidence was submitted in the one-year appeal period following notice of the July 2005 rating decision. 38 C.F.R. § 3.156(b). Because the Veteran did not disagree with this rating decision and there was no new and material evidence received within one year of notice thereof, it became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105. A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. 38 C.F.R. § 3.156(a), which defines "new and material evidence," was revised, effective for all claims to reopen filed on or after August 29, 2001. The instant claim to reopen was filed after that date, and the new definition applies. "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. 38 C.F.R. § 3.156(a). 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. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). In the instant case, the claim of diabetes mellitus, type 2, was denied by the RO in 2005 because the RO found no new and material evidence had been submitted. The RO then noted that "because there is no evidence showing this condition...was...caused by military service", service connection cannot be established. In 2010, the Veteran submitted a treatment note from the "Agent Orange Program" which noted the Veteran's diagnosis of diabetes mellitus, type 2, and indicated that the "risks of Agent Orange" were discussed. When read in the light most favorable to the Veteran, the treatment note is evidence tending to establish a relationship between the Veteran's current diabetes mellitus, type 2, and his exposure to herbicides during military service in Vietnam. Therefore, the Board finds that new and material evidence has been received to reopen the claim of service connection for diabetes mellitus, type 2. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (holding that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low"). III. Service Connection The Veteran contends that service connection is warranted for diabetes mellitus, type 2, which he maintains is due to herbicide exposure during service. The Board finds, after careful consideration of the record, that the evidence is at least in a state of relative equipoise in showing that the Veteran has a diagnosis of diabetes mellitus, type 2, due to herbicide exposure during service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) . In order to establish service connection for a claimed disorder, there generally must be: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Here, the Veteran's service records establish that he served in the Republic of Vietnam during the Vietnam era. A veteran, such as the instant Veteran, who, served during active military, naval, or air service 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. See 38 C.F.R. § 3.307(a)(6)(iii). Thus, here, the Veteran is presumed to have been exposed to Agent Orange during his active duty service in Vietnam. The next question for consideration becomes whether the Veteran has a disability for which a positive association with herbicide exposure is presumed. The Secretary of Veterans Affairs has determined that there is a presumptive positive association between exposure to herbicides and the disorders, including diabetes mellitus, type 2, listed in 38 C.F.R. § 3.309(e). Accordingly, service connection may be granted on a presumptive basis for diabetes mellitus, type 2. The Board acknowledges there is medical evidence that indicates the Veteran's diabetes mellitus, type 2, is due to his nonservice-connected pancreatic disease. Specifically, a November 2001 VA examination report reflects that the physician stated that the Veteran's diabetes mellitus, type 2, was due to pancreatitis and was not due to herbicides. Nonetheless, the Board finds that the record is at least in a state of relative equipoise in showing that the Veteran's diabetes mellitus, type 2, is at least as likely as not the result of his presumed exposure to Agent Orange during service in Vietnam. In particular, the Board notes that under VA regulations, diabetes mellitus, type 2, is presumed to be due to herbicide exposure. While the record contains a November 2001 VA examination report, wherein the physician indicates that the Veteran's nonservice-connected pancreatitis caused the Veteran's diabetes, not his Agent Orange exposure, the physician did not provide a complete rationale to support his conclusion. The physician offered not rationale as to why Agent Orange did not cause the Veteran's diabetes mellitus. As such, the Board finds that the medical opinion is inadequate. What remains is that the Veteran served in Vietnam, he is presumed to have been exposed to Agent Orange, and that he currently has diabetes mellitus, type 2. As such, the evidence of record is at least in equipoise as to whether the Veteran's disability was caused by exposure to herbicides. Accordingly, by extending the benefit of the doubt to the Veteran, service connection for diabetes mellitus, type 2, is warranted. 38 U.S.C.A. §§ 1101, 1110, 1154; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. ORDER New and material evidence having been received, the service connection claim for diabetes mellitus, type 2, is reopened. Entitlement to service connection for diabetes mellitus, type 2, is granted. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs