Citation Nr: 1337566 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 13-07 611 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus type 2. REPRESENTATION Appellant represented by: J. M. McEnfresh, Agent WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to November 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from adverse rating action by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. Please note 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). The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in October 2013. A transcript of this hearing has been associated with the Veteran's VA claims folder. The Board observes that the Veteran indicated at the October 2013 hearing that he was also seeking service connection for heart disease and a respiratory disorder, to include as due to herbicide exposure and/or as secondary to his diabetes mellitus. A review of the record indicates that such claims have been previously denied. Therefore, the Veteran's contentions appear to be a request to reopen these previously denied claims. As this request to reopen was not adjudicated by the agency of original jurisdiction (AOJ), the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Service connection was previously denied for diabetes mellitus type 2 by a February 2009 rating decision. Although the Veteran perfected an appeal as to that decision, he withdrew that appeal via a November 2010 statement. 2. The evidence received since the last prior denial of service connection for diabetes mellitus was not previously submitted to agency decisionmakers, relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial, and raises a reasonable possibility of substantiating the claim. 3. The evidence shows that the Veteran served in the Republic of Vietnam during the Vietnam era and has been diagnosed as having diabetes mellitus type 2. 4. The medical evidence shows that the Veteran's diabetes mellitus type 2 is compensably disabling. CONCLUSIONS OF LAW 1. New and material evidence having been received to reopen the claim of entitlement to service connection for diabetes mellitus type 2, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2013). 2. The criteria for a grant of service connection for diabetes mellitus type 2 are met. 38 U.S.C.A. §§ 1110, 1116, 1154(a), 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 4.119, Diagnostic Code 7913 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board reopens the Veteran's diabetes mellitus claim finds that service connection is warranted for diabetes mellitus type II. As this represents a complete grant of the benefit sought on appeal with respect to these claims, no discussion of VA's duty to notify and assist is necessary. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In this case, the Veteran essentially contends that he developed type 2 diabetes mellitus as secondary to herbicide exposure while serving in Vietnam. If a veteran was exposed to a 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 mellitus 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). On August 31, 2010, hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease were added to the list. 75 Fed. Reg. 53202 (2010). However, VA specifically stated that the accepted medical definition of ischemic heart disease does not extend to other conditions, such as hypertension, peripheral artery disease, and stroke that do not directly affect the muscles of the heart. Id. at 53204. For the purposes of § 3.307, the term herbicide agent means a chemical in a herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is generally considered a herbicide agent and will be so considered in this decision. The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). A veteran who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975 is presumed to have been exposed to herbicides. 38 C.F.R. §§ 3.307, 3.309. "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. 38 C.F.R. § 3.307. The presumption requires that a veteran have actually been present on the landmass or the inland waters of Vietnam. Haas v. Peake, 525 F.3d 1168 (2008); VAOPGCPREC 27-97. Service connection was previously denied for diabetes mellitus type 2 by a February 2009 rating decision. Although the Veteran perfected an appeal as to that decision, he withdrew that appeal via a November 2010 statement. See 38 C.F.R. § 20.204. Therefore, that decision is final. See 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1103. Despite the finality of a prior decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Court has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Board acknowledges that courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Although the Board, as detailed below, finds that new and material evidence has been received to reopen this claim, it was not of record until his October 2013 hearing, more than one year after notification of the February 2009 rating decision. Therefore, the provisions of 38 C.F.R. § 3.156(b) do not apply to the instant case. The February 2009 rating decision denied the Veteran's claim, in essence, because the record did not show his physical presence within the land borders of Vietnam. Therefore, he was not entitled to service connection for diabetes mellitus type 2 based on herbicide exposure. Further, this decision essentially found no other basis for establishing service connection for this disability. The evidence received since the last prior denial includes the Veteran's October 2013 testimony in which he related the circumstances in which he reported he traveled within the land mass of Vietnam from aboard ship during his period of active duty. No such evidence appears to have been of record at the time of the prior denial. Thus, it goes to one of the specific bases for the prior denial. Further, the evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been submitted, without regard to other evidence of record. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In view of the foregoing, the Board finds that the evidence received since the last prior denial of service connection for diabetes mellitus was not previously submitted to agency decisionmakers, relates to an unestablished fact necessary to substantiate the claim, is not cumulative nor redundant of the evidence of record at the time of the last prior final denial, and raises a reasonable possibility of substantiating the claim. Therefore, new and material evidence has been received pursuant to 38 C.F.R. § 3.156(a) and the claim is reopened. Adjudication of the Veteran's appeal does not end with the determination that new and material evidence has been received. The Board must now address the merits of the underlying service connection claim. In the adjudication that follows, the presumption that the evidence received to reopen is true without regard to the other evidence of record no longer applies. In September 2010 the Veterans Benefit Administration issued a Training Letter detailing the procedures for adjudicating claims based on herbicide exposure from Navy veterans. The training letter explained that such vessels as gun line ships, aircraft carriers and supply and support ships were referred to as "Blue Water" navy as they operated in the blue-colored waters of the open ocean. Smaller vessels based along the close coastal waters or within the inland waterways of Vietnam were referred to as the "Brown Water" navy as they operated on the muddy, brown-colored inland waterways of Vietnam. VA has also promulgated a listing of the Navy ships associated with service in Vietnam and hence exposure to herbicide agents. See Training Letter 10-06 (September 2010); see also VA Manual M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Part 10.k. The record reflects the Veteran had service aboard the U.S.S. Constellation CVA-64 in the official waters of Vietnam. However, his service personnel records do not actually document service on the landmass or the inland waters of Vietnam. The Board also observes that the list of "Brown Water" ships does not include the U.S.S. Constellation CVA-64, nor is there any indication that it docked at, or transited the inland waterways of the Republic of Vietnam, coincident with the time period when the Veteran was a member of its crew. Further, the designation of CVA is for aircraft carrier, attack, which reflects it was a "Blue Water" vessel that operated in the blue-colored waters of the open ocean. In short, there is no official record of the Veteran ever having served on the landmass or on land in the Republic of Vietnam. Nevertheless, the Veteran indicates such was the case. As detailed at his October 2013 hearing, he testified that he went into Cam Ranh Bay for food while repairing a barge on the bay. He also testified to other circumstances in which he was sent into Vietnam to conduct repair work. However, he had no official orders for these trips, nor are they indicated in his service personnel or treatment records. The Board finds the Veteran's testimony on these matters at the October 2013 hearings is credible and plausible. Further, such actions are within the capability of a lay person to observe and are not inherently incredible. In fact, the circumstances in which he indicated he was on land in Vietnam appear consistent with the circumstances of his service. For example, the National Personnel Records Center (NPRC) certified in June 2008 that the U.S.S. Constellation was in the official waters of Vietnam on multiple occasions during the Veteran's active service, even though the record provided no conclusive proof of in-country service. Moreover, the circumstances in which the Veteran described his in-country work to conduct repairs appear consistent with his military occupational specialty (MOS) of Machinist's Mate (MM-4200). Based upon his location at that time as confirmed by official records, he certainly was in close enough proximity, and had a sufficient length of service, that the type of inland trips he described was certainly possible. The Board acknowledges that there are no official records denoting the Veteran being assigned to conduct repairs on land in Vietnam. However, he provided credible testimony as to the fact there were no official orders and why such was the case. Further, the National Archives Records Administration (NARA) reported in May 2010 that ships' deck logs do not provide information placing individuals aboard the ship, nor indicate names of individuals who departed the ship and might have set foot in Vietnam. As such, the NARA response indicates that there would not necessarily be any official orders regarding the type of inland visits as described by the Veteran. The Board also wishes to emphasize that the law mandates when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." In Gilbert the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the appellant prevails. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the competent and credible evidence of record reflects the Veteran did was on land in the Republic of Vietnam during the Vietnam War era. Accordingly, the Board must conclude that he was presumptively exposed to herbicides while on active duty. See 38 U.S.C.A. § 1116. Adjudication of this case does not end with the finding that the Veteran was presumptively exposed to herbicides during his active service. The Board must now address whether his current disabilities are due to such exposure. Given the complex nature of the disease processed claimed by the Veteran, as well as the affect of herbicide exposure, the Board finds that competent medical evidence is required for such diagnoses. Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). Initially, the Board observes that the competent medical evidence, to include a multiple VA treatment records, shows the Veteran has type 2 diabetes mellitus, which is among the conditions presumptively associated with in-service herbicide exposure pursuant to 38 C.F.R. §§ 3.307, 3.309(e). Further, the evidence shows that the Veteran's diabetes mellitus type 2 is manifest to a compensable degree. Thus, service connection is warranted for this disability. ORDER New and material evidence having been received to reopen the claim of entitlement to service connection for diabetes mellitus type 2, the claim is reopened. Service connection for diabetes mellitus type 2 is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs