Citation Nr: 1340844	
Decision Date: 12/11/13    Archive Date: 12/20/13

DOCKET NO.  08-09 436	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


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:	The American Legion


ATTORNEY FOR THE BOARD

S. B. Mays, Counsel

INTRODUCTION

The Veteran served on active duty from January to May 1967.  He subsequently completed multiple periods of active duty for training (ACDUTRA).
This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2007 rating decision of the New York, New York Regional Office (RO) of the Department of Veterans Affairs (VA).   

In February 2012, the Board remanded the appeal to ensure VA had all available evidence to determine whether new and material evidence had been generated. The Board presently reopens the claim and REMANDS the matter to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  In an unappealed December 2003 rating decision, the RO denied service connection for diabetes mellitus, type 2.   

2.  The evidence received since the last final rating relates to an unestablished fact necessary to substantiate the diabetes claim, and raises a reasonable possibility of substantiating this claim.


CONCLUSIONS OF LAW

1.  The RO's December 2003 rating decision that denied service connection for diabetes mellitus, type 2, is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013).

2.  New and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus, type 2.  38 U.S.C.A. §§ 5108, 5107 (West 2002); 38 C.F.R. § 3.156 (2013).





REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board will discuss the relevant law which it is required to apply.  This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). 

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions.  See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction).  The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.

Petition to Reopen

The Veteran seeks to reopen a previously denied service connection claim for diabetes mellitus, type 2.  

Without deciding whether the notice and development requirements of VCAA have been satisfied with respect to the Veteran's claim, the Board concludes that there is no prejudice in the Board adjudicating the petition to reopen.  This is so because the Board is taking action favorable to the Veteran by reopening his service connection claim for diabetes mellitus, type 2.  See Bernard v. Brown, 4 Vet. App. 384 (1993). 

Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority.  38 C.F.R. § 3.104(a).  The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period.  38 U.S.C.A. §7105; 38 C.F.R. §§ 3.160, 20.201, 20.302 (2013). 

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."  Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001).  The Board is neither required nor permitted to analyze the merits of a previously-disallowed claim if new and material evidence is not presented or secured.  Butler v. Brown, 9 Vet. App. 167, 171 (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 (1992). 

In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the United States Court of Appeals for Veterans Claims (Court) held that when evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. 

"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) (2013).

In a December 2003 rating decision, the RO, in pertinent part, denied the Veteran's service connection claim for diabetes mellitus, type 2.  Although a diagnosis of diabetes mellitus was shown, the RO noted that the Veteran did not have service in the Republic of Vietnam during the Vietnam era and is therefore not presumed to have been exposed to herbicides therein.  The RO also indicated that there was no evidence that the Veteran had otherwise been exposed to herbicides during service.  The Veteran did not appeal the December 2003 denial of service connection for diabetes mellitus and it therefore became final.  38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104(a), 20.200, 20.302, 20.1103 (2013).

In May 2007, the Veteran sought to reopen his diabetes claim.  He explained that he was not asserting exposure to herbicides in Vietnam as he did not have service there.  Rather, his contention is that he was exposed to herbicides during his military service at Fort Gordon, Georgia, and Fort Drum, New York.  After reviewing the evidence, the RO denied such claim in the October 2007 rating decision and this appeal ensued.    

Based on the procedural history outlined above, the last final and binding denial pertinent to this claim now under consideration is the December 2003 rating decision.  

At issue here is whether the evidence received since the last final rating decision relates to an unestablished fact and raises a reasonable possibility that the Veteran's current diabetes mellitus, type 2, is etiologically related to his active service or a period of ACDUTRA.

New and material evidence has been received since the final and binding December 2003 RO decision.  Among the evidence received since the last final rating decision is a copy of a February 1984 letter from the Department of the Army, US Army Toxic and Hazardous Materials Agency.  This copy, received in November 2009, indicates that an exploratory survey was conducted in 1984 concerning the usage of certain herbicides at Fort Drum in New York.  Interviews conducted during the survey indicated that certain herbicides were used at Fort Drum during the 1960's through the early 1970's.  The RO had already considered a memorandum from the Headquarters of the 464th Engineer Battalion indicating that the Veteran had been ordered to Annual Training at Camp Drum, New York from April 24 through May 8, 1971.  This 1971 ACDUTRA period could be considered to have occurred in the early 1970's.  

In an October 2008 statement, the Veteran alleged that herbicides were being used and tested when he was stationed at Fort Gordon, Georgia for basic training and during Nuclear Biological Chemical Training.  

Lastly, in the October 2008 statement, the Veteran indicated that he spent numerous days in the field at Fort Drum as a combat engineer in training and as a military policeman doing surveillance in restricted storage areas where Agent Orange had possibly been tested.  As already noted, the newly received copy of the February 1984 letter suggests that herbicide testing took place during the 1960's through the early 1970's at Fort Drum.  A November 1992 letter from the Department of the Army indicates that defoliation using herbicide agents was conducted in 1959 at Fort Drum.  The copy of that letter was also received in November 2009.  

Thus, aside from the question of direct herbicide exposure at Fort Gordon and Fort Drum, the Veteran suggests that his diabetes mellitus may have developed from any herbicidal residuals located at Fort Drum when he served on ACDUTRA.  See also, November 2013 appellate brief on Virtual VA.

The newly-submitted evidence, when presumed credible, relates to the unestablished element of an in-service event, and raises a reasonable possibility of substantiating the claim.  The petition to reopen will be allowed.


ORDER

New and material evidence has been received to reopen the service connection claim for diabetes mellitus, type 2; the petition to reopen is granted.  


REMAND

The Veteran attributes his current diabetes mellitus to herbicide exposure during his active service at Fort Gordon, Georgia, and his ACDUTRA service at Fort/Camp Drum, New York.    

His service personnel records reflect that after he completed his active service in 1967, he had reserve service at Fort Drum, New York for years thereafter, to include in 1971, and a Department of Army letter suggests that herbicides were used at Fort Drum through the early 1970's.  However, it is unclear whether the Veteran was exposed to herbicides at Fort Drum.

Additionally, while the record indicates that the Veteran went to basic training at Fort Gordon in 1967, it does not confirm that the Veteran was exposed to any herbicides at that time, despite his contentions.  Therefore, an attempt should be made to verify any associated alleged herbicide exposure in accordance with the procedures provided in VA's Adjudication Procedure Manual.  VA has developed specific procedures to determine whether a veteran was exposed to herbicides where such herbicide exposure is claimed to have occurred in a vicinity other that the Republic of Vietnam, the demilitarized zone (DMZ) in Korea, or Thailand.   

Accordingly, the case is REMANDED for the following action:

1.  Issue a notice letter that complies with the requirements of 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2013) that includes an explanation as to the information or evidence needed to establish a claim for service connection for a disability based on Agent Orange exposure, and the procedures to address claims based on asserted exposure locations outside of Vietnam, to include Fort Gordon and Fort Drum.

2.  Consistent with the M21-1MR manual provisions for verifying exposure to herbicides in locations other than Vietnam or along the Demilitarized Zone in Korea, follow all mandated provisions not yet accomplished to attempt to verify the Veteran's exposure to herbicides as alleged, while participating in basic training, in or near, Nuclear Biological Chemical training at Fort Gordon, and while serving thereafter on ACDUTRA at Fort Drum, New York with the 46th Engineer Battalion, USAR; 105th Military Police Company, (Physical Security), New York Army National Guard; and Company E, Fourth Battalion. 389th Regiment, 1st Brigade (Engineer One-Station Training & GST) 98th Div (Training), United States Army Reserve, and any other verified battalions, to include the following actions. 

a).  To the extent necessary, contact the Veteran and request that he submit any additional detailed information pertaining to the approximate dates, locations, and the nature of any incidents resulting in his exposure to herbicides; including all such information regarding his exposure at Fort Gordon, GA., and Fort Drum, N.Y. 

After obtaining information from the Veteran, compile all of the information into a detailed description as to the approximate dates, location, and nature of the Veteran's alleged exposure, including (1) during basic training at Fort Gordon, GA., from January 3, 1967, through May 5, 1967, and (2) thereafter, while participating on any confirmed periods of ACDUTRA in the U.S. Army National Guard Reserves, specifically to include a period from April 24, 1971, through May 8, 1971 at Fort Drum, NY. 

Then send the detailed description of the asserted exposures to the C&P Service via email at VAVBAWAS/CO/211/AGENTORANGE (Agent Orange Mailbox), and request a review of Department of Defense's inventory of herbicide operations in order to determine whether herbicides were used at Fort Gordon, GA., and Fort Drum, N.Y., during any of the Veteran's verified periods of active service or ACDUTRA.

If the response from the Agent Orange Mailbox inquiry confirms that herbicides were used as alleged, then determine whether service connection is otherwise in order.  If confirmation is not obtained, then send an inquiry to the JSRRC for verification of herbicide exposure at Fort Gordon and Fort Drum, as alleged. 

3.  To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken.  See Stegall v. West, 11 Vet. App. 268 (1998).

4.  Readjudicate the Veteran's claim for service connection for type 2 diabetes mellitus, including as due to exposure to Agent Orange.  If the benefit sought on appeal is not granted, issue a supplemental statement of the case and provide the Veteran and his representative an opportunity to respond.  Then the case should be returned to the Board for further appellate consideration.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



  ______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs