Citation Nr: 1606682 Decision Date: 02/23/16 Archive Date: 03/01/16 DOCKET NO. 12-30 850 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for lower extremity peripheral neuropathy. 2. Entitlement to service connection for diabetes mellitus type II (diabetes), to include as due to herbicide exposure. 3. Entitlement to service connection for lower extremity peripheral neuropathy, to include as secondary to diabetes. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active naval service from November 1966 to June 1970, to include service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The issue of entitlement to service connection for kidney failure, secondary to service-connected diabetes, has been raised most recently by the record in a December 2015 letter from the Veteran's representative, but this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of service connection for peripheral neuropathy 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 a June 2007 rating decision, the Veteran's claim for service connection for lower extremity peripheral neuropathy was denied as the evidence failed to show that his lower extremity peripheral neuropathy was due to his service. This decision was not appealed and no new and material evidence was submitted within a year of that decision. 2. The evidence received since the June 2007 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim for service connection for lower extremity peripheral neuropathy, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim. 3. The evidence of record establishes that the Veteran was likely exposed to herbicides during his naval service. 4. The Veteran's diagnosed diabetes is presumed to have been caused by his herbicide exposure in service. CONCLUSIONS OF LAW 1. The June 2007 rating decision denying service connection for lower extremity peripheral neuropathy is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2006). 2. New and material evidence has been received since the June 2007 rating decision that is sufficient to reopen the Veteran's claim of entitlement to service connection for lower extremity peripheral neuropathy. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015). 3. The criteria for service connection for diabetes have been met. 38 U.S.C.A. §§ 1110, 1112, 1116 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Reopened Claim Generally, a claim that has been finally denied in an unappealed RO decision or a Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. New evidence means 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 regulation does not require new and material evidence as to each previously unproven element of a claim and creates a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran's claim of entitlement to service connection for lower extremity peripheral neuropathy was denied in June 2007. The RO reopened the claim in May 2012 finding that the evidence submitted was new and material, but denied the claim on the merits. The Veteran did not appeal the June 2007 decision, nor did he submit any new and material evidence within a year of the June 2007 rating decision. See 38 C.F.R. §3.156(b). The June 2007 decision thereby became final. At the time of the June 2007 rating decision, the record consisted of the Veteran's military personnel records, service treatment records (STRs), and VA medical evidence. The Veteran's claim was denied because the evidence of record failed to show that he met the diagnostic criteria for diabetes mellitus. Evidence received since the June 2007 rating decision includes new VA medical evidence and private medical evidence which shows that the Veteran now meets the diagnostic criteria for diabetes mellitus. This information is both new and material and is therefore sufficient to reopen the previously-denied claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection is also warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran is currently diagnosed with diabetes, which he believes is the result of herbicide exposure while in service in Vietnam. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, including diabetes, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. §§ 3.307, 3.309. Any Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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. 38 C.F.R. § 3.307(a)(6)(iii). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.313(a); see also Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (upholding VA's interpretation of § 3.307(a)(6)(iii) as requiring the service member's presence at some point on the landmass or the inland waters of Vietnam). Review of the Veteran's service records show he completed a tour in Vietnam for more than 90 days and was assigned to the 55th River Squadron. In addition, dental records show that he received treatment in Vietnam. As such, the evidence is judged to be sufficient to establish that the Veteran was presumptively exposed to herbicides during his naval service. The Veteran filed his service connection claim for diabetes in February 2012. In March 2012, the VA was afforded a VA examination for his diabetes. After reviewing the Veteran's claims file, interviewing the Veteran, and conducting a physical examination, the examiner reported that the Veteran only had a single HgBA1C score that was in the diabetic range, that being in January 2012, and thus, the Veteran did not have a diagnosis of diabetes for VA purposes. The examiner reported that if the Veteran had another elevated HgBA1C score, he then might qualify for the diagnosis of diabetes. In May 2012, the RO denied the Veteran's claims as he did not have a diagnosis of diabetes for VA purposes. Instead, the RO found that the Veteran had impaired fasting glucose. In April 2013, the Veteran was afforded another VA examination. Once again, after reviewing the Veteran's claims file, interviewing the Veteran, and conducting a physical examination, the examiner reported that the Veteran did not have a diagnosis of diabetes for VA purposes as he did not have two HgBA1C scores over 6.5. Afterwards, the Veteran submitted additional medical evidence showing that he had an HgBA1C score of 6.6 in May 2013. Thus, the Veteran now meets the criteria to establish a diagnosis of diabetes. As noted, when a veteran is diagnosed with diabetes and is presumed to have been exposed to herbicides during service, service connection will be granted unless there is clear evidence to the contrary, which is not present here. As such, the criteria for service connection for diabetes have been met, and the Veteran's claim is granted. In light of this result, a detailed discussion of VA's various duties to notify and assist is unnecessary (because any potential failure of VA in fulfilling these duties is harmless error). ORDER New and material evidence has been presented, and the claim of entitlement to service connection lower extremity peripheral neuropathy is reopened. To that extent only, the appeal is granted. Service connection for diabetes is granted. REMAND The Veteran asserts that his lower extremity peripheral neuropathy is secondary to his diabetes. The granting of service connection for the Veteran's diabetes raises the possibility that the Veteran's lower extremity peripheral neuropathy is related to a now service-connected disability. The May 2012 VA examiner noted that the Veteran had a loss of sensation in the callused areas of feet and toes, but the etiology was unknown. Therefore, the Board finds that a remand is necessary in order for the RO to obtain a VA medical opinion regarding the etiology of the Veteran's lower extremity peripheral neuropathy. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records from January 2012 to the present. 2. Obtain a medical opinion to address the etiology of the Veteran's lower extremity peripheral neuropathy. If an opinion cannot be provided without an examination, one should be provided. The examiner is asked to answer the following questions: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's lower extremity peripheral neuropathy was caused by his service-connected diabetes mellitus? Why or why not? b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's lower extremity peripheral neuropathy was aggravated (permanently increased in severity beyond the natural progress of the disorder) by his service-connected diabetes? Why or why not? If aggravation is found, a baseline severity of the erectile dysfunction should be established prior to the aggravation occurring. c) Is it at least as likely as not (50 percent or greater) that the Veteran's peripheral neuropathy began prior to June 1971 and has been present since. Why or why not? 2. Then readjudicate the appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter 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). ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs