Citation Nr: 1339255 Decision Date: 11/29/13 Archive Date: 12/13/13 DOCKET NO. 10-46 949 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for type II diabetes mellitus. 2. Entitlement to service connection for type II diabetes mellitus. REPRESENTATION Appellant represented by: Marine Corps League WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.M. Seay, Counsel INTRODUCTION The Veteran served on active duty from December 1961 to July 1965. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In April 2013, the Veteran testified during a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. A March 2006 Board decision denied entitlement to service connection for type II diabetes mellitus. 2. Evidence received since the time of the final March 2006 Board decision is new and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for type II diabetes mellitus. 3. Resolving the benefit of the doubt in favor of the Veteran, the Board finds that the Veteran set foot within the land borders of Vietnam and is presumed to have been exposed to herbicide agents. CONCLUSIONS OF LAW 1. The March 2006 Board decision is final. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100 (2012). 2. New and material evidence having been received; the claim of entitlement to service connection for type II diabetes mellitus is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 3. The criteria for service connection on a presumptive basis for type II diabetes mellitus are met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2013). Given the favorable disposition of the action here, which is not prejudicial to the Veteran, the Board need not address VA's duties to notify and assist. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). New and Material Evidence Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred or a disease contracted in active service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). A veteran who, during active naval service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to certain herbicide agents, including an herbicide commonly referred to as Agent Orange. 38 U.S.C.A. § 1116(f). Specified diseases associated with exposure to Agent Orange may be presumed to have been incurred in or aggravated by service. In relevant part, these diseases include Type II Diabetes Mellitus. 38 C.F.R. § 3.309(e). For purposes of applying the presumption of exposure to herbicides under 38 C.F.R. § 3.307(a)(6)(iii), "service in the Republic of Vietnam" means that a veteran must have been present within the land borders of Vietnam to obtain the benefit of the presumption of herbicide exposure. See Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008). If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). The question of whether new and material evidence has been received to reopen each claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). "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 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 Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the United States Court of Appeals for Veterans Claims (Court) held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that all due process, to include VA's duty to assist, has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Bernard v. Brown, 4 Vet. App. 384 (1993). The Court recently held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). A June 2004 rating decision denied entitlement to service connection for type II diabetes mellitus. The Veteran appealed the decision to the Board and in a March 2006 decision, the Board denied the Veteran's claim. Review of the claims file does not appear to include a letter with the Veteran's address along with the Board's decision. However, the Veteran has not contended that he did not receive the Board decision and there is no indication in the record that he was not mailed a copy of the decision and his appellate rights. See Ashley v. Derwinski, 2 Vet. App. 62 (1992) (regarding the presumption of regularity that public officers have properly discharged their official duties in absence of clear evidence to the contrary); Mindenhall v. Brown, 7 Vet. App. 271 (1994) (regarding the applicability of the presumption of regularity to RO actions). Thus, the Board presumes that the Veteran received notification of the decision and his appellate rights. He did not appeal the Board's decision to the Court or request reconsideration. As a result, the Board's decision is final. 38 C.F.R. § 20.1100. In March 2007, the Veteran petitioned to reopen his claim of entitlement to service connection for type II diabetes mellitus. The evidence associated with the claims file at the time of the March 2006 Board decision included the Veteran's service treatment records, service personnel records, the Veteran's statements, and private treatment records. The Board denied the Veteran's claim as there was no evidence of duty or visitation to Vietnam or that he was exposed to herbicides during service. Evidence received after the March 2006 Board decision includes the Veteran's statements and hearing testimony, responses from the Defense Personnel Records Image Retrieval System (DPRIS) regarding the history of USS Valley Forge, and a statement from the Veteran's fellow serviceman. After a review of the record, the Board finds that some of the evidence received constitutes new and material evidence to reopen the Veteran's claim for service connection. As noted above, the Board decision denied the Veteran's claim, in part, because the evidence did not show duty or visitation to Vietnam. In this respect, the evidence associated with the claims file after the March 2006 Board decision includes a statement, received in January 2013, from a military comrade. The comrade explained that the Veteran served as a parachute rigger onboard the Valley Forge, and that, in August 1964, he observed that the Veteran had to fly to Da Nang to transport parachutes. He stated that the Veteran was the only rigger on board. The Board finds that the statement is new in that it was not before the Board at the time of the March 2006 decision. The statement is presumed credible, and is also material as it raises a reasonable possibility of substantiating the claim in that it indicates that the Veteran did set foot in Vietnam. Again, the Court has determined that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Id. Therefore, the Board finds that the Veteran's military comrade's statement is new and material evidence and the claim for service connection for type II diabetes mellitus is reopened. 38 C.F.R. § 3.156(a). Reopened Claim - Analysis The Board has thoroughly reviewed all the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence in the claims file. 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). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Veteran contends that he was exposed to herbicide agents, to include Agent Orange, during his period of active duty. During his testimony before the undersigned Veterans Law Judge, the Veteran stated that he was in Da Nang, Vietnam three to four times due to his in-service duties as a parachute rigger. He stated that he had to go to Da Nang to repack parachutes. First, the Board observes that the evidence associated with the claims file demonstrates a diagnosis of type II diabetes mellitus. Private medical treatment records dated in 2003 contain a diagnosis of NIDDM (noninsulin-dependent diabetes mellitus) or type II diabetes mellitus. As such, the Board finds that the Veteran has a current disability. 38 U.S.C.A. § 5107(b); see McClain v. Nicholson, 21 Vet. App. 319 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Next, the Board will address the Veteran's contentions that he set foot in Vietnam, so as to warrant presumptive service connection for type II diabetes mellitus. 38 C.F.R. §§ 3.307, 3.309. The Veteran served in the United States Navy from December 1961 to July 1965. The service personnel records show that the Veteran served on the USS Valley Forge from September 1963 to July 1965, during the Vietnam era. The service personnel records show that the Veteran reported for parachute rigger training in April 1963. His DD Form 214 reflected that his military occupational specialty was Parachute Rigger "PR." During his service aboard the USS Valley Forge, he received the Armed Forces Expeditionary Medal for Vietnam area of operation for service aboard USS Valley Forge during the period of August 6, 1964 to September 29, 1964. The updated list of Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents includes USS Valley Forge. The list, which is a resource for VA regional offices, noted that the USS Valley Forge operated as troop transport with helicopters and smaller vessels transporting troops on and off shore from September 1964 to September 1969, during the Veteran's service aboard USS Valley Forge. A response from DPRIS explained that the USS Valley Forge's history was reviewed. The deck logs for the period of June 1964 showed that the ship was on a secret mission and aircrafts (helicopters) were launched for a fly away to Da Nang, Republic of Vietnam. In addition, deck logs dated in August 1964 showed that seven helicopters were launched to Da Nang Airfield. The September 1964 deck logs showed that the ship conducted naval operations in the area off the coast of South Vietnam. The ship was off coast of South Vietnam from October 7 to October 14, 1964 during which there were aircrafts arriving and departing, with no points of origin or departure locations listed. The Veteran's fellow serviceman, F.J.B., submitted a letter in support of the Veteran's claim. He provided his service number and explained that he was assigned to the USS Valley Forge from November 1963 to January 1967. He stated that he met the Veteran during his period of active duty and served with him from 1964 to 1965. In August 1964, he observed the Veteran load parachutes and transport them to the air base in Da Nang and had several conversations with him regarding the danger of transporting the parachutes. The Board finds nothing to question the credibility of F.J.B.'s statement and finds that it is consistent with the Veteran's account and DPRIS's response regarding helicopter missions to Da Nang, Vietnam. In reviewing the entire record, the Board finds that the evidence is at least in equipoise as to whether the Veteran set foot in Vietnam. The Board finds that the Veteran's account of repacking parachutes in Vietnam is consistent with his duties aboard the USS Valley Forge, supported by his friend's statement, and the ship's history that documented helicopter operations to the Da Nang Air Base in Vietnam. Thus, the Board will resolve the benefit of the doubt in favor of the Veteran and finds that he set foot in Vietnam. 38 U.S.C.A. § 5107(b). Accordingly, service connection for type II diabetes mellitus is granted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309. ORDER New and material evidence having been received, the claim for entitlement to service connection for type II diabetes mellitus is reopened. Entitlement to service connection for type II diabetes mellitus is granted. ____________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs