Citation Nr: 1600566 Decision Date: 01/07/16 Archive Date: 01/21/16 DOCKET NO. 14-17 715 ) 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 in order to reopen a claim of entitlement to service connection for diabetes mellitus, claimed as due to Agent Orange exposure, and, if so, whether service connection is warranted. 2. Entitlement to service connection for ischemic heart disease, claimed as due to Agent Orange exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2013 by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In January 2014, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. The issues of entitlement to service connection for diabetes mellitus and ischemic heart disease are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A final, April 2009 RO decision denied the Veteran's initial claim for service connection for diabetes mellitus; the RO found no evidence that the Veteran was exposed to Agent Orange while serving in Thailand. 2. The evidence associated with the claims file since the April 2009 final denial relates to an unestablished fact necessary to substantiate the Veteran's claim. CONCLUSIONS OF LAW 1. The April 2009 decision is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2015). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for diabetes mellitus. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this case, the Board is reopening the claim for service connection for diabetes mellitus, which is a full grant of the appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. New and Material Evidence Claim The Veteran contends that he was exposed to Agent Orange while stationed in Thailand, and that such exposure caused his claimed diabetes mellitus. He has reported that though his main duty was as a switchboard operator, he also performed telephone repair which required him to bury cables into the ground by guard locations and camp buildings. (November 2012 statement). He has further claimed that if military police and guards are allowed the coverage from Agent Orange, he should also receive coverage, as he was at the same camp, breathing the same air, and walking the same perimeter as them on a daily basis. He also noted that a defoliant had been used around the Army base compound. (January 2014 BVA hearing). In December 2008, the Veteran filed his initial claim for service connection for diabetes mellitus. In the April 2009 rating decision, the RO found that the Veteran had not served in Vietnam and that there was no evidence of exposure to herbicides in service. AOJ 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 an AOJ 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(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). The appellant did not file an application for review on appeal within one year of the decision. Therefore, such decision is final. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as the AOJ did not receive any evidence in conjunction with the claim until over a year following the April 2009 rating decision. Thereafter, the RO received the appellant's petition to reopen the claim in November 2011. Generally, a claim that has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing 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). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. 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 is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the November 2011 claim, the Veteran has provided additional lay evidence regarding his claimed Agent Orange exposure. He has reported exposure in Thailand, including while performing telephone repair, which required him to bury cables into the ground by guard locations and camp buildings. (November 2012 statement). He also reported that a defoliant had been used around the Army base compound. (January 2014 BVA hearing). The Board concludes that the new lay evidence of record constitutes evidence of possible Agent Orange exposure in Thailand. The additional evidence relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim when considered with the old evidence. The claim for entitlement to service connection for diabetes mellitus is reopened. ORDER As new and material evidence has been received to reopen a claim for service connection for diabetes mellitus, the appeal, to this extent, is granted. REMAND The Veteran contends that he was exposed to Agent Orange while stationed in Thailand, and that such exposure caused his claimed diabetes mellitus and ischemic heart disease. He has reported that though his main duty was as a switchboard operator, he also performed telephone repair, which required him to bury cables into the ground by guard locations and camp buildings. (November 2012 statement). He further claimed that if military police and guards are allowed the coverage from Agent Orange, he should also receive coverage, as he was at the same camp, breathing the same air, and walking the same perimeter as them on a daily basis. He noted the use of a defoliant around the Army base compound. (January 2014 BVA hearing). Regulations provide that if a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for ischemic heart disease and type two diabetes. 38 C.F.R. § 3.309(e). In a March 2013 memorandum, the RO made a formal finding of a lack of information required to corroborate herbicide exposure, based in part on Fast Letter 09-20, which showed that Agent Orange was not used in Thailand. However, a recently declassified Department of Defense report written in 1973, Project CHECO Southeast Asia Report: Base Defense in Thailand 1968-1972, contained evidence that there was a significant use of herbicides on the fenced-in perimeters of military bases in Thailand to remove foliage that provided cover for enemy forces. VA determined that herbicides used on the Thailand base perimeters may have been tactical and procured from Vietnam, or a strong, commercial type resembling tactical herbicides. See VBA Manual M21-1, IV.ii.1.H.5.b. VA's Compensation & Pension Service has since established a procedure for verifying exposure to herbicides in Thailand during the Vietnam Era. See VBA Manual M21-1, IV.ii.1.H.5.b. It directs that information regarding herbicide exposure be referred to the U.S. Army and Joint Services Records Research Center (JSRRC) coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist. Thus, a remand is necessary to determine whether the Veteran was exposed to Agent Orange in Thailand. As this matter is being remanded, the AOJ should give the Veteran another opportunity to provide information regarding his claimed Agent Orange exposure for JSRRC verification purposes. The AOJ should also verify whether all the Veteran's service personnel records have been associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. The AOJ should give the Veteran an opportunity to provide any additional information regarding his reported exposure to Agent Orange while stationed in Thailand, for verification purposes. 2. The AOJ should verify whether all service personnel records have been obtained and associated with the claims file. If additional records exist, take all indicated action to contact the appropriate authorities and attempt to secure the Veteran's complete service personnel records. If no additional records are available, that fact should be documented, in writing, in the record, and the Veteran should be provided notice of that fact. 3. A request should be sent to the U.S. Army and Joint Services Records Research Center (JSRRC) for any information it can provide to corroborate the Veteran's claimed exposure to Agent Orange exposure while in Thailand from June 1969 to September 1970. In particular, the JSRRC should attempt to verify that whether the Veteran's military occupational specialty as a switchboard operator would have led to him performing telephone repair, which required him to bury cables into the ground near the perimeter of the base. 4. Thereafter, the RO should produce a formal memorandum for the file documenting efforts to obtain information regarding Agent Orange exposure. 5. The AOJ should re-adjudicate the Veteran's claims on appeal, taking into consideration all of the relevant evidence of record and the guidance provided in VBA Manual M21-1, IV.ii.1.H.5.b, concerning exposure to herbicidal agents in Army bases in Thailand. If any benefit sought remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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 2014). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs