Citation Nr: 1629530 Decision Date: 07/25/16 Archive Date: 08/04/16 DOCKET NO. 14-18 931 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for diabetes mellitus, type II. 2. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure. 3. Entitlement to service connection for a heart disability (previously claimed as ischemic heart disease), to include as due to herbicide exposure. 4 Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for basal cell carcinoma of the left shoulder. 5. Entitlement to service connection for skin cancer (previously claimed as basal cell carcinoma of the left shoulder and right ear lobe), to include as due to herbicide exposure. REPRESENTATION Veteran represented by: West Virginia Department of Veterans Assistance WITNESSES AT HEARING ON APPEAL Veteran and L. E. ATTORNEY FOR THE BOARD T. Carter, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1970 to November 1971, with service in Korea from October 1970 to November 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Huntington, West Virginia. In June 2016, the Veteran testified at a video conference hearing before the undersigned. Before reaching the merits of the claims for diabetes mellitus, type II, and skin cancer, the Board must first determine whether new and material evidence has been received to reopen the previously denied claims of diabetes mellitus, type II, and basal cell carcinoma of the left shoulder. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Therefore, the Board has listed these issues on the title page accordingly. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA electronic claims file, to include VA treatment records dated from April 2002 to March 2013. Accordingly, any future consideration of the case should take into consideration the existence of these electronic records. 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 reopened claim of entitlement to service connection for skin cancer (previously claimed as basal cell carcinoma of the left shoulder and right ear lobe), to include as due to herbicide exposure, is addressed in the REMAND portion of this decision. FINDINGS OF FACT 1. In an August 2006 VA rating decision, the claim for entitlement to service connection for diabetes mellitus, type II, was denied; the Veteran was notified of this action and of his appellate rights, filed a timely Notice of Disagreement, but did not file a timely substantive appeal in response to a February 2008 statement of the case. 2. The evidence received since the August 2006 VA rating decision, regarding diabetes mellitus, type II, is not cumulative or redundant and raises the possibility of substantiating the claim. 3. The Veteran served in Korea from October 1970 to November 1971 and is presumed to have herbicide exposure from temporary service along the Demilitarized Zone (DMZ). 4. The Veteran's current diagnosis of diabetes mellitus, type II, is manifested to a compensable degree of at least 10 percent after separation from service by the required management of a restricted diet. 5. The Veteran's current diagnosis of coronary artery disease status post coronary artery bypass graft (CABG) is manifested to a compensable degree of at least 10 percent after separation from service by the required continuous medication. 6. In an August 2006 VA rating decision, the claim for entitlement to service connection for basal cell carcinoma of the left shoulder was denied; the Veteran was notified of this action and of his appellate rights, but did not file a timely Notice of Disagreement or submit new and material evidence within a year thereafter. 7. The evidence received since the August 2006 VA rating decision, regarding basal cell carcinoma of the left shoulder, is not cumulative or redundant and raises the possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The August 2006 VA rating decision, denying entitlement to service connection for diabetes mellitus, type II, is final. 38 U.S.C.A. § 7105(b), (d) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2015). 2. New and material evidence has been received since the August 2006 VA rating decision to reopen service connection for diabetes mellitus, type II. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. §§ 3.156, 3.307, 3.309 (2015). 3. With resolution of reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for diabetes mellitus, type II, as due to herbicide exposure have been met. 38 U.S.C.A. §§ 1116, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.307(a)(6), 3.309(e), 4.119, Diagnostic Code 7913 (2015). 4. With resolution of reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for a heart disability as due to herbicide exposure have been met. 38 U.S.C.A. §§ 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.307(a)(6), 3.309(e), 4.104, Diagnostic Code 7007 (2015). 5. The August 2006 VA rating decision, denying entitlement to service connection for basal cell carcinoma of the left shoulder, is final. 38 U.S.C.A. § 7105(b), (d); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 6. New and material evidence has been received since the August 2006 VA rating decision to reopen service connection for basal cell carcinoma of the left shoulder. 38 U.S.C.A. § 5108; 38 C.F.R. §§ 3.156, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. Given the decision below, a detailed explanation of how VA complied with its duties to notify and assist is unnecessary. Diabetes Mellitus, type II and Heart Disability In the August 2006 VA rating decision, service connection for diabetes mellitus, type II, was denied. The Veteran's service treatment records were negative for any findings, treatment, or diagnosis of diabetes mellitus, type II, while in service or within one year of separation from service, the Veteran's service in Korea was not sufficient to allow for the presumption of exposure to herbicides therein, and there was no indication of occupational exposure to herbicides during military service. The Veteran was notified of this action and of his appellate rights, filed a timely Notice of Disagreement in December 2006, but did not file a timely substantive appeal in response to a February 2008 statement of the case. Therefore, the August 2006 VA rating decision is final. See 38 U.S.C.A. § 7105(b), (d); 38 C.F.R. §§ 20.302, 20.1103. Relevant evidence received since the August 2006 VA rating decision includes lay statements from the Veteran at the January 2016 Board hearing that he served along the DMZ on temporary duty during his period of active service in Korea with other units. These statements are presumed as credible evidence for the purpose of deciding whether it is new and material. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board finds that this evidence is new and material to the element of establishing an-service incurrence of herbicide exposure, which was not established at the time of the August 2006 VA rating decision. As a result, the claim for service connection for diabetes mellitus, type II, is reopened. 38 U.S.C.A. §§ 1116, 5108; 38 C.F.R. §§ 3.156(a), 3.307, 3.309. If it is determined that a veteran served on active duty from April 1, 1968 to August 31, 1971, in a unit that, determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, then it is presumed that the Veteran was exposed to an herbicide agent, and the presumptions outlined in 38 C.F.R. § 3.309(e) will apply. 38 C.F.R. § 3.307(a)(6)(iv) (effective February 24, 2011); see M21-1, Part IV, Subpart ii, Chapter 1, Section H, para. 4 (January 20, 2016) (developing claims based on herbicide exposure on the Korean DMZ). If a veteran was exposed to an herbicide agent during active military, naval, or air service, a specified list of diseases, to include diabetes mellitus, type II, and coronary artery disease, shall be service-connected if they manifest to a compensable degree of 10 percent or more at any time after service. See 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6)(ii); 3.309(e). Review of the Veteran's service personnel records show he served in Korea from October 1970 to November 1971. At the January 2016 Board hearing, the Veteran's report that he served along the DMZ on temporary duty with other units during his period of active service in Korea is consistent with the circumstances of his service, and thus deemed credible. 38 U.S.C. § 1154(a). As a result, the Board finds that the Veteran served in Korea from October 1970 to November 1971 and is presumed to have herbicide exposure from temporary service along the DMZ. There is no affirmative evidence to the contrary that the Veteran did not have herbicide exposure while stationed in Korea. Review of the evidentiary record demonstrates the Veteran has post-service diagnoses of diabetes mellitus, type II, and coronary artery disease status post CABG manifested to a compensable degree of at least 10 percent. An initial record of the Veteran's diagnoses of diabetes mellitus, type II, was in the June 2006 VA general medical examination report. A VA hospitalization record noted the Veteran's in-patient treatment for status post CABG from April 26, 2011 to May 2, 2011, and VA treatment records note the Veteran's history of coronary artery disease since April 18, 2011. Additional VA treatment records during the appeal period, dated from April 2002 to March 2013 in Virtual VA, reiterate these diagnoses and show the Veteran's restricted diet for diabetes mellitus, type II, and required medication for coronary artery disease. As such, service connection is in order. See 38 U.S.C.A. § 5107; 38 U.S.C.A. §§ 3.102, 3.307(a)(6), 3.309(e). Basel Cell Carcinoma (Skin Cancer) In the August 2006 VA rating decision, service connection for basal cell carcinoma of the left shoulder was denied because the Veteran's diagnosis in June 2002 was many years after separation from service and there was no medical evidence of record relating the diagnosis to service nor was it noted during service. The Veteran was notified of this action and of his appellate rights, but did not file a timely Notice of Disagreement or submit new and material evidence within a year thereafter. Therefore, the August 2006 VA rating decision is final. See 38 U.S.C.A. § 7105(b), (d); 38 C.F.R. §§ 20.204, 20.302, 20.1103. Relevant evidence received since the August 2006 VA rating decision includes lay statements from the Veteran at the January 2016 Board hearing that he received treatment for skin cancer soon after separation from service. In addition, the Veteran's sister and brother-in-law reported in June 2016 VA Forms 21-4138 their belief that the Veteran's onset of skin cancer was within one year of separation from active service in November 1971. These statements are presumed as credible evidence for the purpose of deciding whether it is new and material. See Justus, 3 Vet. App. at 513. The Board finds that this evidence is new and material to the element of establishing a nexus to service, which was not established at the time of the August 2006 VA rating decision. As a result, the claim for service connection for basal cell carcinoma of the left shoulder is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. §§ 3.156(a), 3.303. In light of the Veteran's assertion of basal cell carcinoma of the right ear lobe in the July 2013 notice of disagreement, the Board has recharacterized the Veteran's claim for basal cell carcinoma of the left shoulder more broadly to skin cancer, to include as due to herbicide exposure, in order to clarify the nature of the benefit sought and ensure complete consideration of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). Because additional evidence is needed to adjudicate this newly reopened claim, it is addressed further in the remand discussion below. ORDER As new and material evidence has been received, the claim of entitlement to service connection for diabetes mellitus, type II, is reopened. Service connection for diabetes mellitus, type II, as due to herbicide exposure is granted. Service connection for a heart disability as due to herbicide exposure is granted. As new and material evidence has been received, the claim of entitlement to service connection for basal cell carcinoma of the left shoulder is reopened. REMAND A remand is needed to obtain a VA medical opinion for the issue of entitlement to service connection for skin cancer, to include as due to herbicide exposure. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Review of the Veteran's VA treatment records show the Veteran has the following current diagnoses of skin cancer during the appeal period: history of squamous cell carcinoma of skin (June 2013, November 2013 VA treatment records and April 2011 to June 2011, September 2011, November 2011, and June 2012 VA treatment record in Virtual VA) and basal cell carcinoma (November 2012 VA treatment record in Virtual VA). As noted above, the Veteran is presumed to have herbicide exposure from temporary service along the DMZ. In light of these current diagnoses, the Veteran's in-service presumed herbicide exposure, and lay statements regarding onset of skin cancer within close proximity to separation from service, the Board finds that additional development is needed to determine the etiology of his reported skin cancer. 38 C.F.R. § 3.303. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Send the Veteran's file to an appropriate examiner to provide an opinion regarding his current skin cancer, as noted during the appeal period. Only if an examiner concludes that an examination is required, should one be provided. A complete rationale should be provided for all opinions. The VA examiner must opine as to whether it is at least as likely as not, i.e., is there a 50/50 chance or above, that the Veteran's skin cancer, including squamous cell carcinoma of skin (as documented in June 2013, November 2013 VA treatment records and April 2011 to June 2011, September 2011, November 2011, and June 2012 VA treatment record in Virtual VA) and basal cell carcinoma (as documented in November 2012 VA treatment record in Virtual VA) manifested in service, or is otherwise causally or etiologically related to an injury or event during his period of honorable service, to include herbicide exposure during his active service. The examiner must address and consider the Veteran's testimony at the June 2016 Board hearing and the June 2016 statements from his sister and brother-in-law regarding onset and treatment of skin cancer within one year of separation from service in 1971. 2. After the development requested has been completed, the AOJ should review the medical opinion to ensure that it is in complete compliance with the directives of this REMAND. If the opinion is deficient in any manner, the AOJ must implement corrective procedures at once. 3. When the development requested has been completed, the issue on appeal should be reviewed by the AOJ on the basis of additional evidence. If any benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). The 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). ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs