Citation Nr: 1415602 Decision Date: 04/09/14 Archive Date: 04/15/14 DOCKET NO. 11-05 391 ) 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 received to reopen a claim for service connection for diabetes mellitus type II, to include as due to exposure to herbicides. 2. Entitlement to service connection for diabetes mellitus type II, to include as due to exposure to herbicides. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Martz Ames, Counsel INTRODUCTION The Veteran had active service from May 1966 to August 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Veteran testified at a hearing in May 2012 before the undersigned. A copy of the transcript has been associated with the claims file. The record was held open for an additional 30 days, during which he submitted additional evidence and waived his right to have it initially considered by the RO. 38 C.F.R. §§ 20.800, 20.1304(c) (2013). The issue of entitlement to service connection for diabetes mellitus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Evidence associated with the claims file since February 2002 is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for diabetes mellitus, type II. CONCLUSION OF LAW Evidence received since the February 2002 rating decision that denied service connection for diabetes mellitus type II, which was the last final denial with respect to this issue, is new and material; the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.156, 3.160(d), 20.200, 20.302, 20.1103 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In the February 2002 final rating decision, the RO denied service connection for diabetes mellitus type II by finding that the Veteran did not have service in the Republic of Vietnam and was therefore not exposed to herbicides. At his May 2012 hearing, he testified that in addition to stopping in the Republic of Vietnam on his flight to Thailand, he was exposed to herbicides at Takhli Royal Thai Air Force Base when he patrolled the perimeter of the base. Presuming the credibility of the Veteran's testimony, this evidence is new and pertains to an unestablished fact necessary to substantiate the claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Reopening of the Veteran's claim for service connection for diabetes mellitus based on the receipt of new and material evidence is therefore warranted. See 38 C.F.R. § 3.156(a) (2013); Shade v. Shinseki, 24 Vet. App. 110 (2011). ORDER New and material evidence having been received, the claim for service connection for diabetes mellitus type II is reopened; the appeal is granted to this extent only. REMAND A remand is required so that the RO may conduct additional development with regard to herbicide exposure in light of recently received evidence. Accordingly, the case is REMANDED for the following action: 1. Attempt to again verify the Veteran's reported herbicide exposure outside the Republic of Vietnam, specifically including his service at Takhli Royal Thai Air Force Base from May 1968 to May 1969 following the procedures outlined in VBA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Para. 10(q). In doing so, consider the Veteran's description of his reported exposure to include patrolling the perimeter of the base through tall grass as well as the lay information describing the Veteran's activities in Thailand provided by the Veteran at a May 2012 Board hearing, and lay statements describing the Veteran's activities in Thailand provided in statements received at the Board in June 2012 from J.S., S.G., and C.M. 2. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs