Citation Nr: 1604275 Decision Date: 02/05/16 Archive Date: 02/11/16 DOCKET NO. 12-05 717 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for type II diabetes mellitus as result of exposure to herbicides. 2. Entitlement to service connection for peripheral neuropathy as secondary to type II diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from December 1964 to October 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in January 2010; a statement of the case was issued in January 2012; and a substantive appeal was received in February 2012. The Veteran presented testimony at a Board hearing in December 2015. A transcript of the hearing is associated with the Veteran's claims folder. FINDINGS OF FACT 1. In July 2003, the RO denied the Veteran's claim for entitlement to service connection for diabetes mellitus type II. The Veteran failed to file a timely notice of disagreement; and no new and material evidence was received within a year of the rating decision's issuance 2. Certain evidence received since the July 2003 decision is neither cumulative nor redundant of the evidence of record at the time of the July 2003 denial and, by itself or in conjunction with the evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim of service connection. 3. Exposure to herbicides, either actual or presumptive, is not established based on the evidence of record. 4. Type II Diabetes mellitus was not manifested during the Veteran's active duty service or for many years after service, nor is it otherwise related to service or to exposure to herbicide agents during service. 5. Peripheral neuropathy was not manifested during the Veteran's active duty service or for many years after service, nor is otherwise related to service. CONCLUSIONS OF LAW 1. The July 2003 RO rating decision, which denied the Veteran's claim of entitlement to service connection for diabetes mellitus type II is final. 38 U.S.C.A. § 7105 (West 2014). 2. Evidence received since the July 2003 RO rating decision is new and material; accordingly, the claim for service connection for diabetes mellitus type II is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. The criteria for an award of service connection for type II diabetes mellitus, to include as due to herbicide exposure, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309 (2015). 4. The criteria for an award of service connection for peripheral neuropathy, to include as secondary to type II diabetes mellitus, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) In a June 2008 letter, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2014) and 38 C.F.R. § 3.159(b) (2015). The RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that he was expected to provide. The Veteran was informed of the process by which initial disability ratings and effective dates are assigned, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In claims to reopen, VA must both notify a claimant of the evidence and information necessary to reopen the claim, as well as the evidence and information required to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy the above requirement, the Secretary must consider the bases for the denial in the prior decision and provide the claimant with a notice letter describing what evidence would be necessary to substantiate those elements required to establish service connection that were previously found insufficient. The Board finds that the June 2008 VCAA notice fully complied with Kent. The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (2015). VA has done everything reasonably possible to assist the Veteran with respect to the claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2014) and 38 C.F.R. § 3.159(c) (2015). Relevant service treatment and other medical records have been associated with the claims file. The Board notes that the VA did not provide the Veteran with a VA examination for the purposes of determining the etiology of his diabetes mellitus and peripheral neuropathy. In light of the holding in McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Board feels that an examination is not required. McLendon provides that in disability compensation (service connection) claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. The standards of McLendon are not met in this case as the evidence of records fails to suggest that diabetes mellitus and peripheral neuropathy, first reported many years post service, had their onset in service or are otherwise related thereto. The duties to notify and to assist have been met. Further regarding the duty to assist, the United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). At his hearing, the undersigned identified the issues and sought information as to treatment to determine whether all relevant records had been obtained. The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant. New and Material Evidence Following notification of an initial review and adverse determination by the Regional Office (RO), a notice of disagreement must be filed within one year from the date of notification thereof; otherwise, the determination becomes final and is not subject to revision except on the receipt of new and material evidence. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. Following receipt of a notice of a timely disagreement, the RO is to issue a statement of the case. 38 C.F.R. § 19.26. A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the statement of the case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b). Otherwise, the determination becomes final and is not subject to revision except on the receipt of new and material evidence. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. When a claim to reopen is presented, a two-step analysis is performed. The first step of which is a determination of whether the evidence presented or secured since the last final disallowance of the claim is "new and material." See Elkins v. West, 12 Vet. App. 209, 218-19 (1999) (en banc); see also 38 U.S.C. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). The provisions of 38 C.F.R. § 3.156 (which define "new and material evidence") provides as follows: New evidence means 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) (2015) Second, if VA determines that the evidence is new and material, the VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist has been fulfilled. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000); Elkins, supra. The second step becomes applicable only when the preceding step is satisfied. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). In Evans v. Brown, 9 Vet. App. 273 (1996), the Court held that to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally denied on any basis. Additionally, evidence considered to be new and material sufficient to reopen a claim should be evidence that tends to prove the merits of the claim that was the specified basis for the last final disallowance of the claim. In Justus v. Principi, 3 Vet. App. 510 (1992), the Court held that for new and material evidence purposes only, new evidence is presumed to be credible. The only exception would be where evidence presented is either (1) beyond the competence of the individual making the assertion or (2) inherently incredible. If new and material evidence has been received with respect to a claim that has become final, then the claim is reopened and decided on a de novo basis. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. The Veteran's claim of service connection for type II diabetes mellitus was denied by way of a July 2003 RO decision. The Veteran failed to file a timely notice of disagreement, and no evidence was received within the appeal period after the decision. As such, the decision became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 3.156(b) (2015) (new and material evidence received within the appeal period after a decision is considered as having been received in conjunction with the prior claim); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (VA must determine whether evidence received during the appeal period after a decision contains new and material evidence per 3.156(b) and failure to readjudicate the appeal after receipt of such evidence renders the decision non-final). The evidence on record at the time of the July 2003 denial included service treatment records (that included no treatment for diabetes), post service treatment records, and a VA internal email citing a Department of Defense finding that there was no instance of the use of Agent Orange in Guam at any time. The basis for the denial was the fact that the Veteran did not serve in Vietnam, and the Department of Defense found that Agent Orange was not used in Guam. Evidence received since the July 2003 rating decision includes articles reflecting that Agent Orange was stored and used in Guam. The Board notes that the Court has interpreted the language of 38 C.F.R. § 3. 156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as enabling rather than precluding the reopening of a claim. The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which does not require new and material evidence as to each previously unproven element of a claim. The Board finds that the new evidence regarding Agent Orange having been used in Guam constitutes new and material evidence. As noted above, the RO previously denied the claim because the Veteran did not serve in Vietnam (and was therefore not presumptively exposed to Agent Orange), and because the Department of Defense stated that Agent Orange was not used in Guam at any time. Evidence that Agent Orange may have been used and/or stored in Guam constitutes an unestablished fact necessary to substantiate the claim. As new and material evidence has been received to reopen the claim, the claim for entitlement to service connection is reopened. Service Connection Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as diabetes mellitus, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet.App. 439 (1995). Diabetes Mellitus The Veteran contends that his diabetes mellitus is due to exposure to herbicides while he was stationed in Guam from August 1971 to November 1974. In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran has submitted private treatment records that reflect a current diagnosis of diabetes mellitus, type II. Consequently, the first element of service connection is not at issue. It is the second and third elements of service connection in which the Veteran's claim falls short. Applicable law also provides that a Veteran who, during active service, served during a certain time period in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during service. 38 U.S.C.A. § 1116; see also Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). Regulations further provide, in pertinent part, that if a Veteran was exposed to an herbicide agent (such as Agent Orange) 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) 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: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; multiple myeloma; non- Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); Type II diabetes mellitus, and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). In this case, the Veteran has not alleged to have served in Vietnam. He has stated only that he served in the waters off the coast of Vietnam. His primary contention is that he was exposed to Agent Orange when he was stationed in Guam. He testified that he was an aviation support equipment technician. He stated that he was frequently called on by VQ1, which he stated was a "secret type of squadron that had black birds EP3 Charlies and EA3Bs" that were "constantly flying back and forth between Vietnam and Guam." He stated that they seldom washed the aircraft when they came back. He stated that another part of his job was helping subordinate personnel mix and spray Agent Orange as well as Silvex for the purpose of spreading it around the compound. He stated that he was on the flight line most of the time, and that he sprayed Agent Orange. He stated that he has been receiving treatment for diabetes mellitus since it was diagnosed in 1997. Service personnel records confirm that the Veteran was stationed at The U.S. Naval Air Station in Agana, Guam from October 1971 to November 1974 (VBMS, 2/5/09). The RO attempted to verify the Veteran's claim of herbicide exposure by contacting the Joint Services Records Research Center (JSRRC). Its response (received 2/5/09) stated that "To date, we have been unable to locate documentation, which verifies that Agent Orange was stored or used at Guam, Marianas Islands (Ml) during the period of January 1, 1970 to October 9, 1974. We also reviewed the ?Department of Defense (DoD) listing of herbicide test sites outside the Republic of Vietnam (RVN)? and herbicides are not listed as being sprayed, stored, tested or transported in Guam during the period." The Veteran has submitted an October 2005 Board decision finding that another Veteran's diabetes mellitus was secondary to herbicide exposure incurred while he was stationed on Guam (VBMS, 9/4/08). He also submitted an article regarding contamination of drinking water in Guam (VBMS, 1/31/08). The memorandum stated that "An air force base (Andersen AFB), located in northern Guam in the Southwest Pacific was established during World War II, has provided 50 years of military support service..Base activities have resulted in numerous fuel, pesticide, and chemical spills over part of Guam's aquifer in the Groundwater Protection Zone...Soil monitoring data revealed very high concentrations of elements such as lead, arsenic, chromium, and cadmium..however, there is limited information on the distribution of As in the groundwater of Guam. The Board notes that this memorandum from Dr. L.S. (VBMS, 1/31/08, pgs. 1-4), does not mention Agent Orange at all. It does refer to fuel, pesticide, and chemical spills, at Andersen Air Force Base, located in the northern part of the island. It makes no mention of the U.S. Naval Air Station in Agana (where the Veteran was stationed), which is not in the northern part of the island. The Veteran also submitted a February 2007 bill introduced in the U.S. House of Representatives (entitled the "Civilian Agent Orange Act of 2007") regarding compensation for those exposed to Agent Orange (VBMS, 1/31/08, pgs. 5-9). It specifically states that the term "exposed employee" means an individual who was a civilian employee of the Federal Government or a Department of Defense contractor who was "physically present in the Republic of Vietnam during the period beginning January 9, 1962, and ending on May 7, 1975; or in or near the Korean demilitarized zone during the period beginning September 1, 1967, and ending on August 31, 1971..." There is no mention of exposure to Agent Orange while on Guam. In the 2005 Board decision that is heavily relied upon by the Veteran, the appellant in that case served in Guam from December 1966 to October 1968. He was stationed at Andersen Air Force Base and he submitted articles that suggested that Agent Orange was stored and/or used at Andersen Air Force Base from 1955 to the late 1960s. These articles reflected that in the 1990s, the Environmental Protection Agency listed Andersen Air Force base as a toxic site with dioxin contaminated soil and ordered clean up of the site. In short, the Veteran in that case provided evidence that Agent Orange was used/stored at Andersen Air Force base from 1955 to the late 1960s (a period of time in which the Veteran was stationed there). The Veteran in this case was stationed at the U.S. Naval Air Station in Agana, Guam from October 1971 to November 1974. The Board finds that evidence that Agent Orange or other herbicides were stored and/or used on Guam is insufficient to find that every Veteran stationed on the island was exposed to it. The Veteran has suggested that there is no evidence that Agent Orange stopped being used prior to 1970. He has also argued that usage in the 1950s and 1960s would have contaminated the water he used in the 1970s. The Board notes that the evidence presented does not support these arguments. Moreover, the arguments presented by the Veteran, if accepted, would result in a finding that any Veteran stationed on Guam at any time after 1955 was exposed to Agent Orange. In this case, the Board finds that evidence of Agent Orange storage and/or use at Andersen Air Force Base from 1955 to the late 1960s does not lead to the conclusion that the current Veteran (who served at the U.S. Naval Air Station in Agana in the 1970s) was exposed to Agent Orange or other herbicides. In this case, the JSRRC has leaned that that there is no documentation which verifies that Agent Orange was stored or used at Guam, Marianas Islands (Ml) during the period of January 1, 1970 to October 9, 1974. Moreover, the Department of Defense (DoD) listing of herbicide test sites outside the Republic of Vietnam fails to show that herbicides were sprayed, stored, tested or transported in Guam during that period. The evidence submitted by the Veteran (that Agent Orange was stored and/or used at Andersen Air Force Base in the late 1950s and 1960s) does not refute this. To the extent the Veteran has testified to the mixing of chemicals while in Guam, the Board does not dispute his account of events. However, the weight of the evidence is against a finding that the chemicals he was working with were herbicides. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for service connection for diabetes mellitus type II must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). Peripheral neuropathy The Veteran's claim for peripheral neuropathy is based on the contention that it is secondary to his diabetes mellitus. Since the Veteran is not service connected for diabetes mellitus, there is no basis for any claims made secondary it. Moreover, the evidence is against service connection for peripheral neuropathy on a direct basis. The service treatment records fail to reflect findings attributed to peripheral neuropathy. Peripheral neuropathy was not incurred until years after service, and there is no evidence that there was any continuity of symptomatology since service. In the absence of any findings in service or for many years after service, and in the absence of a competent medical opinion linking it to service, the preponderance of the evidence weighs against the claim. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for service connection for peripheral neuropathy must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). ORDER New and material evidence having been received, the Veteran's claim for entitlement to service connection for type II diabetes mellitus is reopened. Entitlement to service connection for type II diabetes mellitus is denied. Entitlement to service connection for peripheral neuropathy is denied. ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs