Citation Nr: 1338645 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 10-18 679 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for diabetes mellitus, type 2. 2. Entitlement to service connection for diabetes mellitus, type 2, to include as secondary to herbicide exposure. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from June 1966 to December 1969. This appeal comes to the Board of Veterans' Appeals (Board) from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. The RO denied the Veteran's claim for entitlement to service connection for diabetes mellitus, type II in a May 2003 rating decision. The Veteran was notified of the decision, but did not file new evidence or a notice of disagreement within one year. 2. Evidence obtained since the time of the May 2003 rating decision raises a reasonable possibility of substantiating the claim of entitlement to service connection for the Veteran's diabetes mellitus, type II. 3. The evidence establishes the Veteran set foot in Vietnam during the Vietnam War and was therefore presumptively exposed to herbicides during service. 4. The evidence establishes the Veteran currently has diabetes mellitus, type II, manifest to at least 10 percent. CONCLUSIONS OF LAW 1. The May 2003 rating decision, which denied entitlement to service connection for diabetes mellitus, type II is final; new and material evidence has been submitted, and the Veteran's claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156, 20.302, 20.1103 (2013). 2. The criteria for service connection for diabetes mellitus type II have been met. 38 U.S.C.A. §§ 1110, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION New and Material Evidence The Veteran is currently seeking service connection for diabetes mellitus, type 2 (DMII). The Veteran's initial claim for this condition was denied in a May 2003 rating decision. The Veteran was notified of this decision but did not file new evidence or a notice of disagreement within one year, so the determination became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.156(b), 20.302, 20.1103. However, previously denied claims may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. New evidence is defined as evidence not previously submitted to agency decision makers. 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 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). The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). At the time of the May 2003 rating decision the evidence of record included the Veteran's application for benefits, service treatment records, VA treatment records, and private medical records. The medical evidence reflected the Veteran was diagnosed with DMII as early as 1999, 30 years after his separation from service. The Veteran alleged his diabetes was due to exposure to Agent Orange while serving in Thailand during the Vietnam War, including eight hours of repair work on a B-52 in Vietnam in the spring of 1969. The rating decision also indicated the file included a reply from the National Personnel Records Center (NPRC) stating the Veteran did not serve in Vietnam; however it appears this reply was not included in the claims file. His claim was denied for failure to establish that his DMII occurred in or was otherwise caused by his active service. In July 2008 the Veteran sought to reopen his previously denied claim. Considerable additional evidence has been presented in conjunction with the claim to reopen. Because the Board concludes that this new evidence is sufficient to reopen the Veteran's claim, only a limited amount of the new evidence will be discussed in this portion of the decision. In his July 2009 written notice of disagreement the Veteran asserted that he was exposed to Agent Orange during his service at the Anderson Air Force Base on Guam. The Veteran has not previously asserted he was exposed to Agent Orange in Guam and therefore this lay statement is "new" evidence. The Board will now turn to a discussion of whether this new evidence is "material." The Board is aware 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. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered new if it has not been previously submitted to agency decision makers, and it 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. Moreover, the Court of Appeals for Veterans Claims (Court) explained this standard is intended to be a low threshold. Id. In the new lay evidence the Veteran asserted he was exposed to Agent Orange during his service in Guam. As such, this record suggests the Veteran's diagnosed DMII may be related to herbicide exposure during his active service. This evidence is particularly relevant to the issue of reopening as evidence is presumed to be credible for the limited purpose of determining whether to reopen a claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). When presumed credible, the evidence suggests the Veteran's current DMII may be related to his active duty service. The new evidence is therefore material in that it addresses a requirement of service connection, as well as the reason the Veteran's claim was previously denied, namely that his current condition was not related to his active service. As such, the Veteran's claim is reopened. The Board acknowledges that when the Board reopens a claim, the new and material evidence must first be considered by the RO unless there is a waiver from the Veteran or no prejudice would result from adjudication of this claim. Hickson v. Shinseki, 23 Vet. App. 394 (2010). In this case, the Board finds the RO has already considered the case on its merits in the March 2010 statement of the case. Therefore, the Board is satisfied that no prejudice will result to the Veteran by the adjudication of this claim. Service Connection In this case the Veteran is seeking service connection for his DMII, including as due to herbicide exposure during service. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. However, in this case, the Veteran has not asserted, and the evidence does not establish, he developed DMII during his service. Service treatment records were reviewed and do not reflect he made any complaint of or sought treatment for any symptoms of DMII during active service. Additionally DMII or any associated symptoms were not noted on his November 1969 separation examination. Accordingly the Veteran did not develop DMII during active service. Instead, throughout the period on appeal the Veteran has consistently asserted that his DMII is due to exposure to the herbicide Agent Orange either during his service in Thailand in 1969, during missions in which he flew into Vietnam to work on downed planes, or during service in Guam in 1968. The Veteran asserts that such herbicide exposure resulted in his currently diagnosed DMII. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree anytime after service. 38 C.F.R. § 3.307(a)(6). This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. §§ 3.307, 3.309. The exclusive list of diseases which are covered by this presumption includes type II diabetes mellitus. 38 C.F.R. § 3.309(e). The extensive medical records in the claims file reflect the Veteran has been diagnosed with diabetes mellitus since approximately 1999. As such, the Board does not dispute that the Veteran currently has DMII. Therefore the primary issue in this case is to determine whether the Veteran was exposed to herbicides during his active service, to include in Thailand, Vietnam, or Guam. Herbicide exposure is presumed for any veteran who sets foot within the land borders of Vietnam during the Vietnam Era. 38 C.F.R. § 3.307; see Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). As will be discussed the evidence establishes the Veteran set food on land within Vietnam during temporary repair missions during his active service. Throughout the current period of appeal, as well as during his previous claim, the Veteran has consistently asserted that he flew to Vietnam for approximately one day to repair downed planes on at least one occasion while stationed in Thailand. In his original October 2002 claim the Veteran asserted he flew into the Cam Ranh Bay Air Force Base in Vietnam for approximately eight hours to repair a B-52 in the spring of 1969. In his current July 2008 written claim the Veteran stated he often flew to the sites of emergency landings to repair aircraft within the borders of Vietnam. In a written August 2008 he clarified he flew to Cam Ranh Bay, De Nang, and other sites for "a day or two" at a time. In November 2008 he stated both these trips to Cam Ranh Bay and Da Nang were to repair B-52s that had "emergency landed." Although these lay statements include varying degrees of details, the Board finds the Veteran has consistently asserted he was sent to repair a B-52 that had emergency landed within the borders of Vietnam on at least one occasion while stationed in Thailand. Lay testimony is competent to establish facts that can be observed by the use of a person's five senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). As such, lay testimony is sufficient in certain instances to establish service in Vietnam. However, in such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case there is no reason to doubt the credibility of the Veteran's statements. His lay statements regarding service in Vietnam were consistent throughout the appeal. Moreover, other lay statements of the Veteran have been determined to be credible. For instance, in conjunction with his claim for posttraumatic stress disorder the Veteran described witnessing a B-52 explosion on the runway of the U-Tapao Air Force Base in Thailand in July 1969. Subsequent research conducted by the VA corroborated that the described explosion occurred. Therefore the Board notes the Veteran's previous lay statements have proved to be credible. There is no inconsistency in the record. Additionally, the Veteran's service personnel records provide some support of the Veteran's lay assertions. These records do not specifically reflect the Veteran was sent to Vietnam to repair downed airplanes. However, the Veteran's DD 214 does reflect he worked as an air frame repairmen as well as a metal worker. Moreover, a job performance review from July 1967 specifically praised the Veteran's work in repairing a damaged B-52 plane. Therefore, although these records do not document the Veteran was ordered to Vietnam on any mission (the Board would not expect it to), these records do reflect the Veteran performed the kind of work he described completing in Vietnam. Specifically these records reflect the Veteran was skilled at repairing B-52 planes, providing support for his assertions he was selected to repair downed B-52s in Vietnam. The claims file reflects the Military Records Center was unable to find evidence confirming the Veteran set foot in Vietnam. However, the Board cannot conclude that lay evidence lacks credibility solely because it is unaccompanied by other contemporaneous evidence or records. Indeed, "competent lay evidence can be sufficient in and of itself" to support a finding of service connection. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2008). Based on the foregoing the Veteran has consistently asserted he was ordered to Vietnam to repair a downed B-52 on at least one occasion. Nothing in the record suggests the Veteran's statements are not credible or competent. Instead, the Veteran's personnel records reflect he was skilled at the type of work he asserted he performed within the borders of Vietnam. Additionally, VA regulations provide that if the evidence for and against the Veteran's claim is in relative equipoise reasonable doubt will be resolved in the Veteran's favor. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Therefore, affording all reasonable doubt to the Veteran, the Board finds the Veteran set foot on the ground within the border of Vietnam on at least one occasion during the Vietnam War to repair a downed B-52 plane. Because the Veteran set foot in Vietnam he is presumed to be exposed to herbicides. 38 C.F.R. § 3.307. Therefore additional consideration of whether he was also exposed to herbicides during his service in Thailand and Guam is not necessary. As discussed above, DMII is listed in section 3.309(e) as one of the diseases presumed to be service connected if the Veteran was exposed to a 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). In this case the Veteran was diagnosed with DMII in approximately 1999. Subsequent medical records reflect his condition was controlled with insulin. Accordingly he meets the criteria for at least a 10 percent rating under Diagnostic Code 7913 for diabetes mellitus. 38 C.F.R. § 4.119. Therefore the Veteran has met the regulatory requirements at 38 C.F.R. § 3.309(e) and 3.307(a)(6) and his DMII is presumed to be connected to his active service. His claim for service connection is accordingly granted. Duties to Notify and Assist The Veteran's claim is granted. Therefore a detailed discussion of VA's various duties to notify and assist is unnecessary because any potential failure of VA in fulfilling these duties is harmless error. ORDER The claim for service connection for diabetes mellitus type II is reopened and granted, subject to the laws and regulations governing the award of monetary benefits. ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs