Citation Nr: 1415505 Decision Date: 04/08/14 Archive Date: 04/15/14 DOCKET NO. 13-03 754 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for diabetes mellitus, type II, to include as due to exposure to Agent Orange. 2. Entitlement to service connection for Parkinson's disease, to include as due to exposure of Agent Orange. 3. Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure of Agent Orange. REPRESENTATION Appellant represented by: Kenneth S. Beskin, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty service from July 1969 to March 1971. He also served in the Reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Board has a legal duty to address the "new and material evidence" requirement of 38 C.F.R. § 3.156 regardless of the actions of the RO. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd 83 F.3d 1380 (Fed. Cir. 1996); see also McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The Board will therefore preliminarily consider the claims under the provisions of 38 C.F.R. § 3.156, concerning the receipt of new and material evidence to reopen a claim. The Board notes that it has reviewed both the Veteran's physical claims file and VA's electronic records to ensure that the complete record is considered. In February 2014, the Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge. A transcript of these proceedings has been associated with the Veteran's claims file. The issue of service connection for a heart condition, secondary to Agent Orange exposure and a total disability evaluation based on service-connected disabilities have been raised by the record during the Board hearing, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's initial claim of service connection for diabetes mellitus, type II, was last denied in a July 2007 decision of the RO. 2. The evidence received since the July 2007 decision is neither cumulative nor redundant of the evidence of record and raises a reasonable possibility of substantiating the claim of service connection for diabetes mellitus, type II. 3. The Veteran operated in or near the DMZ in Korea from March 1970 to March 1971, during a period in which Agent Orange use has been conceded. 4. Type 2 diabetes mellitus arose in or around 2006. 5. Parkinson's disease was diagnosed in July 2009. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of service connection for diabetes mellitus. 38 U.S.C.A. §§ 1310, 5103, 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.156, 3.159, 3.312 (2013). 2. Diabetes mellitus, type II, is presumed to have been incurred in active military service. 38 U.S.C.A. §§ 1110, 1111, 5103A, 5107 (West 2002); §§ 1112, 5103 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). 3. Parkinson's disease is presumed to have been incurred in active military service. 38 U.S.C.A. §§ 1110, 1111, 5103A, 5107 (West 2002); §§ 1112, 5103 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Assist and Notify The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. The Board need not discuss in detail the sufficiency of various VCAA notice letters sent to the Veteran over the course of his appeal in light of the fact that the Board is reopening his claim for service connection diabetes mellitus and granting service connection for diabetes mellitus and Parkinson's disease. Any potential error on the part of VA in complying with the provisions of the VCAA has essentially been rendered moot by the Board's full grant of the benefit sought on appeal addressed in this decision. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2013). Accordingly, the Board will proceed to a decision. II. Whether new and material evidence has been received to reopen a claim for service connection for diabetes mellitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 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. See 38 C.F.R. § 3.156(a) (2013). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of his claim has been fulfilled. See 38 U.S.C.A. § 5108 (West 2002); Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court of Appeals for Veterans Claims (the Court) has stated that the language of VA regulations does not require the submission of new and material evidence as to each previously unproven element of a claim for that claim to be reopened. See Shade v. Shinseki, 24 Vet. App 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). In July 2007, the Veteran's claim for service connection for diabetes mellitus, type II, was denied by the RO. Notice of this decision was mailed the same month. The Veteran did not file a notice of disagreement with this decision. Therefore, the July 2007 RO decision became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). In order to reopen the claim, the Veteran must provide new and material evidence. In essence, the RO denied the Veteran's claim because the evidence showed that the Veteran was stationed in South Korea from March 1970 to March 1971 which was outside of the recognized time of period of possible exposure to Agent Orange Exposure. The Board's inquiry will be directed to the question of whether any additionally submitted [i.e. after July 2007] evidence bears directly and substantially upon this matter. Since the July 2007 RO decision, the applicable regulations were amended in February 2011to extend the presumption of herbicide exposure in Korea to include certain Veterans, recognized by the Department of Defense as having served in or near the demilitarized zone between April 1969 and August 1971. 38 C.F.R. § 3.317 (a)(6)(iv) (2012). In addition, the Veteran has provided extensive documentation that he served at Camp Saint Barbara in South Korea from March 1970 to March 1971. Documentation includes a photograph of the Veteran in a newsletter for Camp Saint Barbara dated in 1970. The Veteran has also submitted several statements by fellow soldiers that he served at Camp Saint Barbara in South Korea in 1970 and 1971 and that the Camp itself was located on the border for the DMZ, specifically that one of the gates to the Camp Saint Barbara opened into the DMZ. The Veteran has also submitted opinions by his treating physicians that his diabetes mellitus, Type II, has a relationship to Agent Orange exposure during his military sevice. The language of VA regulations does not require the submission of new and material evidence as to each previously unproven element of a claim for that claim to be reopened. See Shade v. Shinseki, 24 Vet. App 110 (2010). In this connection, the Board finds that the newly received evidence constitutes new and material evidence. For the sole purpose of establishing whether new and material evidence has been submitted, the credibility of new evidence, although not its weight, is presumed for the narrow purpose of determining whether sufficient evidence has been submitted to reopen the previously disallowed claims for service connection. See Justus, supra. This new evidence relates to a fact or facts necessary to substantiate the Veteran's service-connection claim for diabetes mellitus, and presents a reasonable possibility of substantiating it. See 38 C.F.R. § 3.156 (2013). Accordingly, the Board finds that there is sufficient new and material evidence to reopen the Veteran's claim. III. Entitlement to service connection for diabetes mellitus, type II, and Parkinson's disease. Service connection will be awarded for disability resulting from injury or disease incurred in or aggravated by active service (wartime or peacetime). 38 U.S.C.A. §§ 1110; 1131 (West 2002), 38 C.F.R. § 3.303(a) (2013). In order to establish service connection or service-connected aggravation for a present disability, the veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d at 1163, 1166-67 (Fed. Cir. 2004). Each disabling condition shown by service medical records, or for which the Veteran seeks service connection, must be considered on the basis of the places, types, and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a). "Direct" service connection may be granted for any disease not diagnosed initially until after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). VA regulations provide for presumptive service connection for certain diseases for those Veterans exposed to herbicides during active service. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.309(e) (2013). The specified diseases for which presumptive service connection is available include Type II diabetes and Parkinson's disease. 38 C.F.R. § 3.309(e) (2013). Once the evidence has been assembled, the Board assesses the credibility and weight to be given to the evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (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. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran claims that both his Parkinson's disease and diabetes mellitus, Type II, were caused by his exposure to Agent Orange while he served in the Republic of South Korea. As the evidence for both claimed diseases overlaps, the Board will discuss both issues together below. The Veteran served in the Republic of South Korea from March 1970 to March 1971. He has testified that he served near the Korean Demilitarized Zone (DMZ) and that he was exposed to herbicide agents while there. According to 38 C.F.R. § 3.307 (a) (6) (iv), a veteran who, during active military, naval, or air service, served between April 1, 1968 and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, 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. The Veteran's personnel records indicate that he was assigned to HHB 1st TAB 25th FA and HHB I Corps (Gp) Arty while he served in Korea. While the Veteran's assigned unit is not listed as having been exposed to herbicides, DoD has confirmed that Field Artillery, Signal and Engineer troops were supplied as support personnel to those combat brigades recognized by DoD. Thus, DoD has conceded that unnamed and uncounted artillery support troops assisted and augmented the combat infantry units serving in the defoliation areas. In Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007), it is noted that the Secretary's procedures acknowledge that a veteran could have been exposed to Agent Orange in units other than those entitled to a presumption of exposure. The Veteran's DD-214 corroborates the fact that his operational specialty was Bal metro crmn (meteorological crewmember). The Veteran testified that he was in the United States Army Field Artillery. Specifically, he explained that howitzers could not be fired accurately without meteorology data. He analyzed wind temperatures, wind directions, density of air, and metro calibrations. He explained that these weapons were located close to the DMZ for protection against any North Korean aggression. The Veteran testified that he was stationed at Camp Wood and Camp Saint Barbara while in Korea and that if one exited the north gate of Camp Saint Barbara, there was a sign indicating that one was entering the southern portion of the DMZ. The north gate was closed and used on occasion. He testified that he went to this north gate a few times. The Veteran also testified that he served at Camp Wood which was actually in the DMZ. He explained that he was assigned to Camp Wood on occasion because the accuracy of his data was better due to the closer proximity to North Korea. In addition to his testimony, the Veteran has provided extensive documentation that he served at Camp Saint Barbara in South Korea from March 1970 to March 1971. Documentation includes a photograph of the Veteran in a newsletter for Camp Saint Barbara dated in 1970. The Veteran has also submitted several statements by fellow soldiers that corroborate that he served at Camp Saint Barbara in South Korea in 1970 and 1971 and that the Camp itself was located on the border for the DMZ, specifically that one of the gates to the Camp Saint Barbara opened into the DMZ. In addition, there several service treatment records showing treatment at Camp Saint Barbara in 1970. The Board acknowledges that the RO did not request further information from the Joint Services Records Research Center as to whether the Veteran's unit was located near the DMZ and that a PIES request indicates no records of exposure to herbicide. Despite this, the Veteran has supplied credible and competent testimony of having served near the DMZ. The Veteran is considered competent to supply facts of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). As mentioned above, each disabling condition for which the Veteran seeks service connection, must be considered on the basis of the places, types, and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a). Based on all of the evidence, the Board finds that the Veteran operated in or near the DMZ during the time when herbicides were used; therefore, he is presumed to have been exposed to said herbicides. The Veteran has supplied competent medical evidence dated in November 2006 and July 2009, showing current diagnoses for diabetes mellitus, type II, and Parkinson's disease, respectively. The Veteran has submitted statements by his physicians showing a link between his current diabetes mellitus, type II, and his exposure to herbicide during service. See Dr. T. letter dated in March 2011. The Veteran also submitted a letter from Dr. W. dated in February 2011. Dr. W. noted that the Veteran's credible statements that he had walked on the grounds of the DMZ. The physician opined that it was as likely as not that his exposure to Agent Orange in Korea may have been a contributing cause to his current diagnosis of Parkinson's disease. The Board acknowledges that a treatment record noted that his father also had Parkinson's disease, but the Veteran explained that this treatment record was incorrect and explained that his grandfather had hand tremors but was never diagnosed with Parkinson's disease prior to his death. As there is no evidence of intercurrent causation, satisfactory lay evidence of exposure to Agent Orange during service, and current medical evidence of presumptive diseases, the Board finds that all elements necessary for presumptive service connection are present. Therefore, service connection for type 2 diabetes mellitus and Parkinson's disease is granted. ORDER As new and material evidence has been received, the claim of service connection for diabetes mellitus is reopened. Service connection for diabetes mellitus, type II, secondary to herbicide exposure, is granted. Service connection for Parkinson's disease, secondary to herbicide exposure, is granted. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs