Citation Nr: 1631403 Decision Date: 08/05/16 Archive Date: 08/12/16 DOCKET NO. 09-07 172 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for venereal disease. 2. Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as a result of herbicide exposure and/or secondary to the service-connected diabetes mellitus. 3. Entitlement to service connection for prostate cancer, to include as a result of herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from March 2008, October 2009, and March 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The RO previously considered and denied service connection for venereal disease. See December 1969 rating decision. Consequently, the Board must first determine whether there is new and material evidence to reopen this claim because this initial determination affects the Board's jurisdiction to adjudicate this claim on its underlying merits, meaning on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). If there is not the required new and material evidence to reopen this claim, then further consideration of it is neither required nor permitted, and what the RO determined in this regard is irrelevant. Conversely, if there is the required new and material evidence, then as mentioned this claim must be reopened and reconsidered in light of the entirety of evidence, new and old. In his June 2014 substantive appeal, the Veteran indicated that he was no longer appealing the claim for depressive disorder; consequently, the matter is no longer in appellate status. 38 C.F.R. § 20.302(b). In May 2106, the Veteran presented testimony before the Board in support of his appeal; a transcript of the hearing has been associated with the electronic (i.e. paperless) record. The claims for peripheral neuropathy of the lower extremities and prostate cancer 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 December 1969 rating decision denied service connection for venereal disease; the Veteran did not appeal that decision and no relevant evidence was received within one year of that decision; that decision consequently is a final and binding determination based on the evidence then of record. 2. The additional evidence submitted or otherwise obtained since that December 1969 decision does not relate to an unestablished fact and does not raise a reasonable possibility of substantiating the claim for service connection for venereal disease. CONCLUSION OF LAW New and material evidence has not been received to reopen the Veteran's claim for service connection for venereal disease. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d), 20.200, 20.302, 20.1103 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the Veteran pre- adjudication notice by letters dated in September 2009 and August 2011. It is additionally worth bearing in mind that, with regards to the new-and-material-evidence claim, a precedent opinion of VA's General Counsel, VAOPGCPREC 6-2014, concludes that the plain language of 38 U.S.C.A. § 5103(a)(1) does not require VA, upon receipt of a previously-denied claim, to provide notice of the information and evidence necessary to substantiate the element or elements that were found insufficient in the previous denial of the claim. In other words, the opinion holds that notice per Kent v. Nicholson, 20 Vet. App. 1 (2006), is no longer controlling insofar as it construed the former § 5103(a) to require that VA provide case-specific notice to a claimant in a claim to reopen. In concluding this, the Office of General Counsel (OGC) looked to the legislative history and amendments to the statute and case law. For example, OGC noted that "[n]othing in the plain language of section 5103(a)(1) requires VA to analyze the evidence provided for a previously finally decided claim and inform the claimant of its inadequacy." Additionally, in 2012, Congress revised § 5103(a) by removing the requirement that notice to be provided after a claim had been received. See Pub. L. No. 112-154, § 504(a), 126 Stat. 1165, 1191 (2012). OGC stated that the change in the law now allowed for notice to be provided on the "claims application forms," which showed Congress' understanding that the statute allows VA to provide generic notice. Finally, OGC concluded that case law from the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court), decided after Kent, supports this conclusion. For example, in Wilson v. Mansfield, 506 F.3d 1055, 1059 (Fed. Cir. 2007), the Federal Circuit held that the language of the statute was not "intended to require an analysis of the individual claim in each case," but only to require notice of "the information and evidence necessary to substantiate the particular type of claim being asserted." OGC also stated that Vazquez-Flores v. Shinseki made clear that "Wilson and Paralyzed Veterans put to rest the notion that the VA is required to provide veteran-specific notice, although Wilson requires the notice be claim-specific." 580 F.3d 1270, 1277 (Fed. Cir. 2009). To summarize, in a claim to reopen, while VA is not required to provide notice of the information and evidence necessary to substantiate the element or elements that were found insufficient in the previous denial of the claim, it is required "to explain what 'new and material evidence' means." Akers v. Shinseki, 673 F.3d 1352, 1358 (Fed. Cir. 2012). This was accomplished in the August 2011 letter. VA also has a duty to assist the Veteran in the development of the claim. VA has obtained service treatment and personnel records, assisted the Veteran in obtaining evidence, provided the Veteran VA examination, and afforded the Veteran the opportunity to give testimony in support of his appeal, the transcript of which has been associated with the electronic record. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements, and the Veteran is not prejudiced by a decision on the claim at this time. II. Analysis The Board has reviewed all the evidence in the Veteran's electronic record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In order to reopen a claim that has been previously considered and denied in a final and binding decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). But see also Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible" or to blindly accept, as true, assertions that are beyond the competence of the person making them). The Board finds that the Veteran has not submitted new and material evidence sufficient to reopen his claim for service connection for venereal disease, which was denied by the RO in December 1969. The RO denied the claim on the basis that there was no evidence of venereal disease in service or currently. The Veteran did not appeal the decision. 38 C.F.R. § 20.302(a). Additionally, no new and material evidence was submitted within one year of the date on which notice of the decision was issued. See 38 C.F.R. § 20.1103; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). This is the last final denial on any basis. Since December 1969 the Veteran has not submitted new or material evidence which shows treatment for or diagnosis of a venereal disease either in service or currently. Essentially, the evidence submitted since the last final denial does nothing but reiterate the Veteran's prior claim-that he seeks entitlement to service connection for venereal disease. As such, the evidence received since 1969 is duplicative or cumulative of that on file prior to the last final decision of that year. To the extent that the evidence of record received since the prior final decision could be deemed new, it does not, when considered by itself or with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran's claim. Specifically, none of the evidence shows that the Veteran had a venereal disease in service or currently. Thus, on this record, new and material has not been submitted to reopen the previously denied claim of service connection for venereal disease. See 38 C.F.R. § 3.156(a). ORDER New and material evidence has not been received to reopen the claim of entitlement to service connection for venereal disease; the appeal to this extent is denied. REMAND The Veteran has also claimed entitlement to service connection for peripheral neuropathy of the lower extremities and prostate cancer. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). The Veteran claims entitlement to service connection for prostate cancer. He contends that this disability is due to in-service herbicide exposure, including Agent Orange, while serving near the Korean demilitarized zone (DMZ). The Veteran at one time also indicated that his peripheral neuropathy of the lower extremities was also due to such exposure. The Veteran claims that he was exposed to Agent Orange, specifically dioxin, near the Korean DMZ while assigned to the 696th Ordinance Company. Specifically, he indicated that he was part of a special unit attached to the 7th Infantry Division that patrolled the area around the DMZ, to include Camp Alex Williams, Camp Casey, and Camp Red Cloud. See March 2008 and April 2011 statements. The Board notes that effective February 24, 2011, VA amended its regulations (38 C.F.R. § 3.307 ) to extend a presumption of herbicide exposure to certain Veterans who served in Korea. 76 Fed. Reg. 4245 -01 (Jan. 25, 2011). Specifically, a Veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DoD), operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, 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)(iv). Once exposure has been established by the evidence, the presumptions found at 38 C.F.R. § 3.309(e) are applicable. The Board notes that the DMZ cuts the Korean Peninsula roughly in half following the geographic 38th parallel north latitude and is approximately 155 miles long and 2.5 miles wide. The DoD has advised that herbicides were not applied within the DMZ, but were applied in some adjacent areas. Specifically, DoD has reported that herbicides were applied between April 1968 and July 1969 along a strip of land 151 miles long and up to 350 yards wide along the southern edge of the DMZ north of the civilian control line. The herbicide agents were applied through hand spraying and hand distribution of pelletized herbicides; there was no aerial spraying. DoD also has provided VA a list of the military units that are currently known to have operated in that area during the period that herbicides were applied. See 74 Fed. Reg. 36640, 36641. VA's Adjudication Procedure Manual (M21-1MR) contains a list of service units that have been recognized by the DoD as having served in areas along the Korean DMZ. Exposure to herbicides is to be conceded for Veterans who allege service along the DMZ in Korea and were assigned to certain units between April 1968 and July 1969. See M21-1MR at IV.ii.2.C.10.q. The Veteran's service personnel records indicate that he served in Korea from July 1967 to October 1968. He was assigned to Battery B, 6th Battalion, 12th Artillery, 8th Army from July 1967 to January 1968 and then to the 696th Ordnance Company from January 1968 to October 1968. Such units are not listed among those recognized by the DoD as having served along the Korean DMZ. Under these circumstances, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(q), directs that a request to the U.S. Army and Joint Service Records Research Center (JSRRC) be sent for verification of exposure to herbicides. It appears the RO initiated a request in April 2014, but never received a response. See Formal Finding of Lack of Information to Concede Agent Orange Exposure for South Korea, DMZ dated in December 2014. Accordingly, the Board finds that remand is necessary in this case to attempt to verify the Veteran's reported exposure to herbicides, to include Agent Orange, during his service in Korea. With regard to the claim for peripheral neuropathy of the lower extremities, the Veteran alternatively contends the condition is secondary to his service-connected diabetes mellitus. The Veteran was afforded a VA examination in January 2012; however, it was inadequate. Notably, the examiner failed to address whether his peripheral neuropathy of the lower extremities was aggravated by his diabetes mellitus. Such failure renders the opinion inadequate. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). The RO should ensure that all due process requirements are met. The RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claims on appeal. 38 U.S.C.A. § 5103A (b). Accordingly, the case is REMANDED for the following action: 1. Contact the U.S. Army and Joint Service Records Research Center (JSRRC) or other appropriate entity, provide the verified particulars of the Veteran's foreign service (assigned to Battery B, 6th Battalion, 12th Artillery, 8th Army from July 1967 to January 1968 and the 696th Ordnance Company from January 1968 to October 1968), and specifically request verification of the claimed herbicide exposure near or in the Korean DMZ. This request should include the information presented by the Veteran, including his March 2008 and April 2011 statements that he served near the Korean DMZ while assigned to a special unit attached to the 7th Infantry Division that patrolled the area around the DMZ, to include Camp Alex Williams, Camp Casey, and Camp Red Cloud. Ensure that documentation of this entity inquiry is added to the electronic record that includes the complete content of the inquiry and the information provided to the entity by the RO. 2. Following completion of the above, make a clear determination as to whether the Veteran was exposed to herbicides during service in Korea. 3. If available to provide still further comment, obtain an addendum opinion from the examiner who rendered the January 2012 VA opinion. Otherwise the opinion must be rendered by someone with the necessary qualifications or competence to comment. Explanatory rationale must be provided, regardless, citing to specific evidence in the file supporting conclusions. If the requested opinion cannot be provided without resorting to mere speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resorting to mere speculation. Merely saying he/she cannot respond will not suffice. To wit: the examiner must comment on the likelihood (very likely, as likely as not, or unlikely) that peripheral neuropathy of the lower extremities is aggravated by (beyond the natural progression of the disease) the service-connected diabetes mellitus. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims, in light of all evidence of record. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. The Veteran 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). These claims 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). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs