Citation Nr: 1416165 Decision Date: 04/11/14 Archive Date: 04/24/14 DOCKET NO. 10-15 236 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for diabetes mellitus, type 2, to include as due to exposure to herbicides during service. 2. Entitlement to service connection for diabetes mellitus, type 2, to include as due to exposure to herbicides during service. 3. Whether new and material evidence has been submitted to reopen a claim for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant, appellant's spouse, L.M., M.S. ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to December 1971. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In February 2012, the Veteran was afforded a hearing before the undersigned Acting Veterans Law Judge who is rendering the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2002). The issue of entitlement to service connection for diabetes mellitus, type 2 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. FINDINGS OF FACT 1. In an unappealed decision, dated in March 2006, the RO denied a claim for service connection for diabetes mellitus, type 2. 2. The evidence received since the RO's March 2006 decision, which denied claim for service connection for diabetes mellitus, type 2, which was not previously of record, and which is not cumulative of other evidence of record, raises a reasonable possibility of substantiating the claim. 3. In an unappealed decision, dated in March 2007, the RO denied a claim for service connection for "PTSD with nervousness and depression." 4. The evidence received since the RO's March 2007 decision, which denied claim for service connection for PTSD with nervousness and depression, which was not previously of record, and which is not cumulative of other evidence of record, does not raise a reasonable possibility of substantiating the claim for an acquired psychiatric disorder, to include PTSD. CONCLUSIONS OF LAW 1. New and material evidence has been received since the RO's March 2006 decision which denied a claim for service connection for diabetes mellitus, type 2; the claim for service connection for diabetes mellitus, type 2, is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156 (2013). 2. New and material evidence has not been received since the RO's March 2007 decision which denied a claim for service connection for PTSD with nervousness and depression; the claims for service connection an acquired psychiatric disorder, to include PTSD is not reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material The Veteran asserts that he has submitted new and material evidence to reopen claims of entitled to service connection for diabetes mellitus, and an acquired psychiatric disorder, to include PTSD. He argues that he has diabetes mellitus due to exposure to Agent Orange during service in Vietnam or Thailand, and that he has PTSD due to a motor vehicle accident in which a Thai citizen crashed into his truck and was killed. As an initial matter, the Board notes that it has recharacterized the Veteran's claim pertaining to PTSD in in the broadest terms possible, as a claim for an acquired psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Unappealed rating decisions by the Board are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7104(b) (West 2002). When an appellant seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new" and "material." Smith v. West, 12 Vet. App. 312 (1999). If VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of an appellant's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). When making determinations as to whether new and material evidence has been presented, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). VA regulation defines "new" as not previously submitted and "material" as related to an unestablished fact necessary to substantiate the claim. If the evidence is new and material, the next question is whether the evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). Specifically, in Shade, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d) (2013). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a); and that continuity of symptomatology only relates to the specified chronic diseases). Psychosis, and diabetes, are chronic diseases for which service connection may be established under 38 C.F.R. § 3.303(b). See 38 C.F.R. § 3.309(a); Walker, 708 F.3d at 1339-40. Disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309, will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis, Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; type 2 diabetes, non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; multiple myeloma, respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma. 38 C.F.R. § 3.309(e). Recently, changes have been made to the regulation for presumptive service connection for veterans shown to have been exposed to Agent Orange. See 75 Fed. Reg. 14391 (March 25, 2010); 38 C.F.R. § 3.309(e). These changes add ischemic heart disease, "all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia)," and Parkinson's disease, as presumptive disorders. Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), does not preclude establishment of service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). "Of particular relevance to an analysis of medical evidence supporting such a nexus are factors such as whether a medical professional finds studies persuasive, whether there are other risk factors that might be the cause of the condition for which benefits are sought, and whether the condition has manifested itself in an unusual manner." Polovick v. Shinseki, 23 Vet. App. 48, 53 (2009). A statistical correlation between Agent Orange and a disease not on the presumptive list may not be the only basis for a positive nexus opinion; it may be part of the analysis, but the entirety of the analysis provided by the medical professional must be weighed and considered. Polovick, 23 Vet. App. at 53-54. VA has extend the presumption of exposure to Agent Orange and the presumption of service connection for prostate cancer to a Vietnam-era veteran, who served in Thailand at certain designated bases, to include U-Tapao and Korat Royal Thai Air Force Bases (RTAFB), and whose duties placed him or her on or near the perimeter of the base, where Agent Orange was sprayed. VA Adjudication Procedures Manual, M21-1MR, Part IV, Subpart ii, 2.C.10. q. Where it is not shown that a Veteran engaged in combat or in a war zone, his assertions of service stressors are not sufficient to establish the occurrence of such events. Rather, his alleged service stressors must be established by official service records or other credible supporting evidence. 38 C.F.R. § 3.304(f); Pentecost v. Principi, 16 Vet. App. 124 (2002); Fossie v. West, 12 Vet. App. 1 (1998); Cohen v. Brown, 10 Vet. App. 128 (1997); see also M21-1MR, Part III.iv.4.H.29.a, i. Applicable regulations provide that service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a link, established by medical evidence between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). VA recently amended 38 C.F.R. § 3.304(f) to liberalize the evidentiary standard for establishing a required in-service stressor where a claimed stressor is related to fear of hostile military or terrorist activity. "Fear of hostile military or terrorist activity" is defined as being where "a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho- physiological state of fear, helplessness, or horror." Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852 (July 13, 2010) (codified at 38 C.F.R. § 3.304(f)(3)), corrected by 75 Fed. Reg. 41,092 (July 15, 2010). In the absence of clear and convincing evidence to the contrary, lay testimony alone may establish the occurrence of such a stressor if the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor. Id. For claims to reopen a previously denied service connection PTSD claim, new and material evidence will be required as the regulatory amendment is not considered a liberalizing rule under 38 C.F.R. § 3.114. To reopen a claim under new § 3.304(f)(3), VA will accept a Veteran's lay statement regarding an in-service stressor - "fear of hostile military or terrorist activity" - as sufficient to constitute new and material evidence for the purpose of reopening a previously denied claim, if the Veteran's record otherwise shows service in a location involving exposure to "hostile military or terrorist activity." If review of the record discloses a previously submitted lay statement demonstrating "fear of hostile military or terrorist activity," such statement will be sufficient for reopening a claim if the Veterans' record otherwise demonstrates service in a location involving exposure to "hostile military or terrorist activity." However, as discussed infra, the Veteran is not shown to have served in Vietnam, and the amended provisions are not for application. When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. 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). Lay evidence can be considered competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). With regard to the administrative history of this claims, in May 2004, the RO denied a claim for PTSD. Although the Veteran filed a timely notice of disagreement as to the RO's denial in May 2004, and although a statement of the case was issued in June 2005, the Veteran's appeal (VA Form 9) was not received until April 2006, and was untimely. See 20.302(b) (2013). He was so notified. In May 2005, the RO determined that new and material evidence had not been presented to reopen the claim for "PTSD with nervousness and depression." In March 2007, the RO again determined that new and material evidence had not been presented to reopen the claim for PTSD with nervousness and depression." As there was no appeal to any of these decisions, they all became final. See 38 U.S.C.A. § 7105(c) (West 2002). In April 2008, the Veteran filed to reopen his claims for service connection for PTSD and diabetes mellitus. In April 2009, the RO denied the claims and the Veteran has appealed. The Board notes that the RO's language in its December 2010 supplemental statement of the case indicates that it denied the claim for an acquired psychiatric disorder, to include PTSD, "on the merits." Otherwise, its discussion for both denials is somewhat vague as to whether or not it reopened the claims. In any event, regardless of the determination reached by the RO, the Board must find that new and material evidence has been presented in order to establish its jurisdiction. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996). In other words, the Board is required to first consider whether new and material evidence is presented before the merits of a claim can be considered on the merits. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The most recent and final denial of these claims was in March 2006 (diabetes mellitus), and March 2007 (acquired psychiatric disorder, to include PTSD). With regard to the claim for an acquired psychiatric disorder, to include PTSD, the Board further notes that when the RO first denied the claim in March 2007, its analysis only discussed PTSD. However, the December 2011 supplemental statement of the case shows that the RO also properly discussed acquired psychiatric disorders other than PTSD. Clemons. Therefore, a "new and material" analysis is appropriate. The Board must determine if new and material evidence has been submitted since the March 2006 and March 2007 decisions. See 38 U.S.C.A. § 5108. When determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). A. Acquired Psychiatric Disorder, to Include PTSD At the time of the RO's March 2007 decision, the Veteran's primary argument was that he had PTSD due to a motor vehicle accident (MVA) in which a truck he was driving struck and killed a policeman in Thailand. See Veteran's stressor statement, received in April 2004. However, the Veteran had also asserted that he had served in Vietnam, and the issue of service in Vietnam is highly relevant to a claim for PTSD. Specifically, in a VA progress note, dated in March 2003, the Veteran was noted to have stated that he served in RVN (the Republic of Vietnam) for 13 months as a generator mechanic, and that "they would fly me around everywhere in a helicopter to repair those things." He was further noted to state that he volunteered for a "second tour in 1969," although he was not sure of the year, during which he again served as a generator mechanic, "again for 12-13 months." Later in that report, he indicated that he was "in Thailand during the second tour," and that while in Thailand a policeman on a motor scooter had been killed after striking his truck. In a statement (VA Form 21-4138), received in November 2006, the Veteran asserted, "In 1966 I flew into Vietnam from Alaska enroute to Thailand. I flew into Saigon. I did two different tours in Thailand. I supported crypto guys. I was a generator mechanic. These sites were all over Southeast Asia." A VA progress report, dated in May 2005, notes, "He admits that his documentation that he was in RVN is thin; he was there for 'only a few hours' on his way to Thailand. But he has two citations 'for being in Vietnam.'" The evidence of record at the time of the RO's March 2007 rating decision included the Veteran's service treatment records, which did not contain findings of, treatment for, or a diagnosis of, an acquired psychiatric disorder, to include PTSD (the pathological entity now known as PTSD was not added to the Diagnostic and Statistical Manual of Mental Disorders (DSM-III) until 1980 or the VA Schedule for Rating Disabilities (Diagnostic Code 9411) until April 11, 1980). The Veteran's service separation examination report, dated in November 1971, did not note an acquired psychiatric disorder. The Veteran's service personnel records showed that he served in Thailand between October 1966 and October 1967, and March 1968 and March 1969. In each case, he served with the 55th Signal Company (Spt) USARPAC-Thailand. His principal duties while in Thailand were Ordinance Supply Specialist, Powerman, and Senior Wheeled Vehicle Mechanic. The Veteran's discharge (DD Form 214) and his personnel records also showed that he had been awarded the Vietnam Service Medal, and the Vietnam Campaign Medal. A response from the National Personnel Records Center (NPRC), dated in January 2006, shows that the NRPC determined that they were unable to verify whether or not the Veteran had in-country service in the Republic of Vietnam. As for the post-service medical evidence, it consisted of VA treatment reports, dated between 2002 and 2006. This evidence showed that the Veteran had been diagnosed with Axis I diagnoses of depression NOS (not otherwise specified), PTSS (posttraumatic stress syndrome) "subsyndromal," and ETOH (alcohol) dependence in remission 1979. There were also notations of an anxiety disorder, depression and "? PTSD." This evidence showed that he had been prescribed paroxetine, and later, fluoxetine, for "depression and temper control." This evidence further showed that the Veteran reported that he had been a victim of sexual assault during service in Ft. Hood, and that there were notations of a history of MST (military sexual trauma). See e.g., VA progress notes, dated in May 2004, May 2005, and September 2006. There were a number of positive screens for PTSD. At the time of the RO's March 2007 rating decision, the Veteran's service treatment reports did not contain evidence of treatment for symptoms of an acquired psychiatric disorder, nor did the claims file contain a medical opinion in support of the claim. The RO stated that a confirmed diagnosis of PTSD was not shown. Service in Vietnam was not shown, and there was no verified stressor. In this regard, to the extent that the Veteran was shown to have received the Vietnam Service Medal, and the Republic of Vietnam Campaign Medal, the criteria for receipt of these awards did not require duty or visitation in the Republic of Vietnam. See Department of Defense Manual of Military Decorations & Awards, DoD 1348.33-M, C6.5 at 48 (September 2006). The evidence received since the RO's March 2007 rating decision consists of VA reports, dated between 2006 and 2014. This evidence shows that the Veteran received diagnoses of acquired psychiatric disorders that included dementia NOS, depression NOS/depressive disorder, ETOH abuse in remission, PTSS subsyndromal, and notations of complaints of MST, and alleged/possible MST. Reports from the Social Security Administration (SSA) show that in October 2008, the SSA determined that the Veteran had been disabled since June 2008, with a primary diagnosis of osteoarthritis. A secondary diagnosis was not listed. Reports associated with the SSA's decision include an August 2008 mental diagnostic evaluation from S.A.S., Ph.D., which shows that the Veteran denied a history of participation in combat, but that he reported a history of being in an MVA in which he ran over a "Vietnamese fellow." The report contains Axis I diagnoses of major depression, PTSD "by history," and cognitive disorder NOS. A June 2008 report indicates that the Veteran reported that he had participated in combat during service in Vietnam. A VA progress note, dated in April 2010, notes that the Veteran's wife reported that he had stated that "he killed two people and can't get over it." A VA progress note, dated in July 2010, shows that the Veteran reported that he had served in Vietnam, and that he was in "combat areas." A VA mental disorders examination report, dated in May 2011, shows that the Veteran reported that he served in Vietnam. The report contains Axis I diagnoses of dementia, and major depression. There were Axis III diagnoses that included Parkinson's disease. A February 2012 report from W.A.K., M.D., states that the Veteran was being treated for disorders that include dementia, and that, "He has reported to me, as has his family, that he suffers from depression and PTSD that stems from the Vietnam War." Additional service personnel records have been associated with the claims file. None of them show service in Vietnam, or note service at a specific base in Thailand. The Veteran has submitted a great deal of material apparently taken from the internet, most of which pertains to use of Agent Orange in Thailand. Some of this evidence which was not of record at the time of the RO's March 2007 decision, is not cumulative, and is "new" within the meaning of 38 C.F.R. § 3.156. However, the Board finds that this evidence is not material. In this case, at the time of the March 2007 RO decision, the Veteran's service treatment records did not show any relevant treatment for psychiatric symptoms, or a diagnosis of an acquired psychiatric disorder. The earliest post-service medical evidence of an acquired psychiatric disorder was dated in April 2003, which is about 31 years after separation from service, and there was no medical evidence of a nexus between an acquired psychiatric disorder, to include PTSD, and the Veteran's service. None of the submitted evidence shows the existence of an acquired psychiatric disorder, to include PTSD, prior to 2003, or probative evidence of a diagnosis of PTSD, nor does it contain any material medical evidence of a nexus between an acquired psychiatric disorder, to include PTSD, and the Veteran's service. None of the submitted evidence shows that the Veteran served in Vietnam, or that his claimed stressor involving the death of a man in a MVA occurred. To the extent that the evidence shows continued treatment for psychiatric symptoms, records related to continued treatment are generally insufficient to reopen a claim for service connection. See Cornele v. Brown, 6 Vet. App. 59, 62 (1993) (medical evidence which merely documents continued diagnosis and treatment of disease, without addressing other crucial matters, such as medical nexus, does not constitute new and material evidence). To the extent that a 2008 report from Dr. S.A.S. includes an Axis I diagnosis of PTSD, he specifically noted that this was "by history" only, and that it was reported to him by the Veteran. This statement is unaccompanied by current findings, or any other information, to support a conclusion that Dr. S.A.S. determined that the Veteran currently has PTSD. At the time of the last final denial, there were diagnoses of other psychiatric disorder, such as depression, but there was no nexus evidence linking such disorders to service. Evidence received since the last final denial in March 2007, similarly includes evidence of other diagnosed psychiatric disability, but once again does not link such disability to service. In summary, the new evidence is not material, and does not raise a reasonable possibility of substantiating the claim. With regard to the articles submitted by the Veteran, this evidence is not accompanied by the opinion of any medical expert. It is general in nature, and does not reasonably approximate the facts and circumstances of the Veteran's case. Evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Accordingly, this evidence is insufficiently probative to warrant a reopening of the claim. The only other pertinent evidence received since the March 2007 denial of the claim consists of the Veteran's oral and written testimony, and the testimony of his family members. However, the Veteran's own testimony, and the lay testimony, and their assertions as to a causal connection between the claimed condition and his service are duplicative, cumulative in nature, and not new and material. All of this testimony is within the scope of the Veteran's assertions that were of record in March 2007. These statements are therefore not new and material evidence. Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence); see also Hickson v. West, 11 Vet. App. 374 (1998); Moray v. Brown, 5 Vet. App. 211 (1993) (noting that lay assertions on medical causation do not constitute material evidence to reopen a previously denied claim). The Board therefore finds that the additional evidence is not both new and material and does not raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. The claim is therefore not reopened. B. Diabetes Mellitus, type 2 At the time of the RO's March 2006 decision, the Veteran's primary argument was that he had diabetes mellitus secondary to exposure to Agent Orange during service in Vietnam. In this regard, in his claim (VA Form 21-526), received in October 2003, he asserted, "I was in Vietnam twice; the first time in 1966 or 1977 (presumably should be "1967"), the second time right after I re-enlisted." In a VA progress note, dated in March 2003, the Veteran was noted to have stated that he served in Vietnam for 13 months as a generator mechanic, and that "they would fly me around everywhere in a helicopter to repair those things." He was further noted to state that he volunteered for a "second tour in 1969," although he was not sure of the year, during which he again served as a generator mechanic, again for 12-13 months." Later in that report, he indicated that he was "in Thailand during the second tour." Other assertions that the Veteran has made as to service in Vietnam were discussed in Part I.A., supra. The evidence of record at the time of the RO's March 2006 rating decision included the Veteran's service treatment records, which did not contain findings of, treatment for, or a diagnosis of, diabetes mellitus. The Veteran's separation examination report, dated in November 1971, did not note diabetes. The report notes that urinalysis was negative for sugar. As for the post-service medical evidence, it consisted of VA treatment reports, dated between 2003 and 2005. This evidence did not note diabetes mellitus. At the time of the RO's March 2006 rating decision, the Veteran's service treatment reports, and the post-service treatment reports, did not contain evidence of diabetes mellitus, nor did the claims file contain a medical opinion in support of the claim. Service in Vietnam was not shown, nor was exposure to Agent Orange on the basis of service in Thailand shown. The evidence received since the RO's March 2006 rating decision consists of VA and non-VA reports, dated between 2002 and 2012, and reports from the Social Security Administration (SSA). Some of this evidence is duplicative. Of the evidence which is not duplicative, it shows that the Veteran has been diagnosed with diabetes mellitus, type 2. The Board finds that the evidence which was not of record at the time of the March 2006 decision, which is not cumulative and is "new" within the meaning of 38 C.F.R. § 3.156, is material. The submitted medical evidence shows that the Veteran has been diagnosed with diabetes mellitus, type 2. The Board therefore finds that the submitted evidence is both new and material, and that it raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156; see also Shade v. Shinseki, 24 Vet. App. 110 (2010) (38 C.F.R. § 3.159(c)(4) "does not require new and material evidence as to each previously unproven element of a claim."). The claim is therefore reopened. The appeal is granted to this extent only. II. The Veterans Claims Assistance Act of 2000 VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified of the criteria for establishing service connection, the evidence required, and his and VA's respective duties for obtaining evidence, in a letter dated in May 2008. The letter also informed the Veteran of the bases for the March 2007 RO denial of his claim, and the specific evidence that is required to substantiate the element or elements needed for service connection that were found insufficient in that prior final decision. Kent v. Nicholson, 20 Vet. App. 1 (2006). The letter accordingly addressed all notice elements. Nothing more was required. The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's VA and non-VA records, and SSA records. The Veteran has been afforded an examination. As the Board has determined that new and material evidence has not been presented, a remand for an etiological opinion is not required to decide the claim. See 38 U.S.C.A. § 5103A(f) (West 2002); Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1342-43 (Fed. Cir. 2003). In February 2012, the Veteran was provided an opportunity to set forth his contentions with regard to his claim with the undersigned Acting Veterans Law Judge. See 38 U.S.C.A. § 7107(c). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims recently held that 38 C.F.R. § 3.103(c)(2) requires that an RO Decision Review Officer who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the February 2012 hearing, the Acting Veterans Law Judge identified the issue on appeal. Information was solicited regarding the onset and cause of his disability. The testimony did not reflect that there were any outstanding medical records available that would support of his claim. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussion did not reveal any evidence that might be available that had not been submitted. As such, the Board finds that, consistent with Bryant, the Acting Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER New and material evidence not having been submitted, the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is not reopened. To this extent, the appeal is denied. New and material evidence having been submitted, the claim of entitlement to service connection for diabetes mellitus, type 2, is reopened. To this extent only, the appeal is granted. REMAND The Veteran asserts that he is entitled to service connection for diabetes mellitus, type 2. During his Board hearing, held in February 2012, the Veteran testified that he had been aboard planes that landed at Tan Son Nhut Air Base in the Republic of Vietnam "a couple of times," and that he had set foot on that base. He further asserted that he had served at air bases in U-Tapao and Korat in Thailand, and that he was exposed to Agent Orange during this time, as his duties placed him near the perimeters of those bases, and that the perimeters had been sprayed with Agent Orange. The Veteran's personnel records indicate that he served in Thailand on two occasions, although a specific base in not identified. Service in Vietnam is not currently shown. VA has acknowledged that Agent Orange was in some instances used in Thailand and has developed specific procedures to determine whether a Veteran was exposed to herbicides in locations other than the Republic of Vietnam or along the demilitarized zone (DMZ) in Korea (to specifically include Thailand). See 38 C.F.R. § 38 U .S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6) (iii)-(iv); VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(n). C&P Service has determined that special consideration of herbicide exposure cases should be extended to those Veterans whose duties placed them on or near the perimeters of specified Thailand military bases. This allows for presumptive service connection of the diseases associated with herbicide exposure. The majority of the personnel in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases (RTAFBs), including U-Tapao RTAFB and Korat RTAFB. VA guidance states that if an Air Force veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS, performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts found or direct basis. This applies only during the Vietnam era, from February 28, 1961, to May 7, 1975. See VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.q. A memorandum for the record had been placed in the Veteran's claims file. See M21-1MR, Part IV, Subpart ii, 2.C.10.r. (this memorandum is a different one than is discussed at M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.q.) In addition, the RO's decision shows that it determined that the Veteran's personnel records did not show exposure to Agent Orange during service in Thailand. However, there is no indication that that RO ever referred the case to the JSRRC coordinator to make a formal finding as to whether or not sufficient information required to verify herbicide exposure exists, and if so, whether such exposure is shown. Evidentiary development procedures provided in the Adjudication Procedure Manual are binding. See Patton v. West, 12 Vet. App. 272, 282 (1999) (holding that the Board failed to comply with the duty-to-assist requirement when it failed to remand the case for compliance with the evidentiary development called for by M21-1). In this regard, the Board finds that sufficient information exists about the Veteran's claimed exposure to herbicides while he was stationed at U-Tapao and Korat in order to formulate a request to the JSRRC to attempt to verify the claimed Agent Orange exposure. On remand, the RO should submit of a request to JSRRC for verification of the Veteran's assertions regarding his exposure to herbicides while serving in Thailand at U-Tapao and Korat RTAFBs. Accordingly, the case is REMANDED for the following action: 1. An appropriate request should be sent to the U.S. Army and Joint Services Records Research Center (JSRRC) for information it can provide to corroborate the Veteran's claimed exposure to Agent Orange exposure during service at U-Tapao, and Korat, Royal Thai Air Bases between October 1966 and October 1967, and March 1968 and March 1969, during service with 55th Signal Company (Spt) USARPAC-Thailand. In particular, provided service at either of these air bases is shown, the JSRRC should attempt to verify whether the Veteran's military occupational specialty, or principal duties during his service in Thailand, would have placed him near the perimeter of either of these bases, as appropriate. 2. After completing the above action, and any other development as may be indicated by any response received as a consequence of the action taken in the preceding paragraph, the case should be reviewed on the basis of the additional evidence. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity for response. 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. 2012). ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs