Citation Nr: 1641620 Decision Date: 10/27/16 Archive Date: 11/08/16 DOCKET NO. 11-25 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure. 2. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Martha R. Luboch, Associate Counsel INTRODUCTION The Veteran had active duty service from October 1964 to August 1968. These matters come to the Board on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran requested a Travel Board hearing before a Veterans Law Judge but later cancelled his scheduled hearing. Thus, his hearing request is considered withdrawn and the Board will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (2015). The Board notes that additional evidence has been associated with the claims file since the last issuance of the statement of the case in September 2011. However, in April 2015, the Veteran submitted a waiver of regional office consideration of the additional evidence. Therefore, this appeal is properly before the Board. FINDINGS OF FACT 1. A July 2006 rating decision denied the Veteran's claim to reopen his claim of entitlement to service connection for diabetes mellitus, type II. The Veteran did not file an appeal to that decision and it is final. 2. Evidence pertaining to the Veteran's diabetes mellitus, type II, to include as due to herbicide exposure, received since the July 2006 rating decision relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. 3. The Veteran's personnel records show that he served in Korea from July 1967 to August 1968 and his unit was the 2nd Medical Battalion. 4. The Veteran did not serve in the Republic of Vietnam or in one of the units designated by the Department of Defense as having served in or near the Korea demilitarized zone (DMZ) between April 1968 and August 1971, and thus, he is not presumed to have been exposed to herbicides. 5. The Veteran's diabetes mellitus, type II, is not shown to have onset during service, or to be causally or etiologically related to any disease, injury, or incident in service, and did not manifest within one year of the Veteran's discharge from service. CONCLUSIONS OF LAW 1. The July 2006 rating decision that denied the Veteran's claim to reopen his claim of entitlement to service connection for diabetes mellitus, type II, is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2014). 2. Evidence received since the April 2002 decision is new and material, and the Veteran's claim for service connection for diabetes mellitus, type II, is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014). 3. Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicides, is not established. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with adjudication of the issue of whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for diabetes mellitus. Given the favorable nature of the Board's decision herein, any error in notice or assistance is harmless. With regard to the issue of entitlement to service connection for diabetes mellitus, VA has a duty to inform a claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (b)(1). Additionally, in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159 (b) apply to all five elements of a service connection claim, including veteran status, existence of a disability, a connection between service and the disability, the degree of disability, and effective date of the disability. Here, an adequate notice letter was provided to the Veteran in Ocotober 2008. Additionally, the VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits. The VA obtained the Veteran's service treatment records and VA treatment records. Although the Veteran has not been afforded a VA examination, such an examination is not necessary. In determining whether the duty to assist requires that a VA examination be provided or a medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, no examination is necessary in order to adjudicate the Veteran's claim of entitlement to service connection for diabetes mellitus. Specifically, there is no indication, that he manifested any symptoms of diabetes mellitus during service. Additionally, the Veteran was not diagnosed with diabetes mellitus within one year of service and none of the medical evidence of record suggests an association between the Veteran's diabetes mellitus and his active service. Because all necessary evidentiary development was conducted, and an examination regarding the Veteran's claim of entitlement to service connection for diabetes mellitus is not warranted, the Board finds that VA's duty to assist has been met. II. New and Material Evidence to Reopen Claim for Diabetes Mellitus, Type II The Veteran seeks to reopen his previously denied claim for diabetes mellitus, type II, to include as due to exposure to herbicides. Notwithstanding determinations by the RO that new and material evidence has or has not been received to reopen the Veteran's claims, the Board is required to determine whether new and material evidence has been presented. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (holding that the Board has a legal duty under 38 U.S.C.A. §§ 5108 and 7105, to address the question of whether new and material evidence has been presented to reopen a previously denied claim); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The United States Court of Appeals for Veterans Claims (Court) has emphasized that the final sentence of 38 C.F.R. § 3.156 (a), especially the phrase "raise[s] a reasonable possibility of substantiating the claim," does not create a third element or separate determination in the reopening process, but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id.; see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Court has elaborated on what constitutes "new and material evidence." New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans, 9 Vet. App. at 273. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The record reflects that the Veteran's claim to reopen his claim for service connection was last denied in July 2006. The Veteran did not express timely disagreement or submit new and material evidence within one year, and subsequently the July 2006 rating decision became final. Evans v. Brown, 9 Vet. App. 273, 285 (1996). As such, the Veteran's claim for service connection may only be reopened if new and material evidence is submitted. In this instance, since the July 2006 rating decision denied the claim on the basis that there was no evidence that proves that the Veteran was exposed to herbicides in service, the Board finds that new and material evidence would consist of evidence showing that the Veteran either had service in Vietnam (which he does not allege) or served in or near the Korea demilitarized zone (DMZ) between April 1968 and August 1971. The evidence received since the July 2006 rating decision consists of numerous records and documents. Included within those documents are pictures, which the Veteran alleges shows that he was adjacent to where the Agent Orange was sprayed, a personnel record indicating where the Veteran was assigned, and a March 2015 statement from the Veteran indicating that as a medical technician, he was responsible for transporting the sick and injured from the affected area where herbicides were sprayed (DMZ). The Board must presume the credibility of all newly submitted evidence for the purpose of determining if such evidence is new and material evidence sufficient to reopen the claim. Fortuck v. Principi, 17 Vet. App. 173, 179 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Presuming its credibility, the aforementioned evidence indicates that the Veteran may have served in or near the Korea demilitarized zone (DMZ) between April 1968 and August 1971. As a result, the Board finds that this additional evidence is neither cumulative nor redundant, and it is material since the evidence raises the possibility of substantiating the claim of service connection for diabetes. See 38 C.F.R. § 3.156 (a). Therefore, the Board determines that this claim is reopened. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015). "To establish a right to compensation for a present disability, a veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). There is a presumption of service connection for certain diseases that are associated with exposure to herbicide agents and that become manifest within a specified time period in a veteran who, during active military, naval, or air service, served in the Republic of Vietnam or in or near the Korean DMZ during specified periods of time, even if there is no record of evidence of such disease during the period of service. See 38 U.S.C.A. § 1116 (West 2014); 38 C.F.R. § 3.307 (a)(6)(iv) (2015). Diabetes mellitus is among those diseases for which presumptive service connection is available and must manifest to a degree of 10 percent or more at any time after the last exposure to the specific herbicide agents. 38 U.S.C.A. § 1116 (a)(2); 38 C.F.R. § 3.309 (e) (2015). In this case, the Veteran does not contend service in Vietnam and the record does not reasonably raise that contention. As such, a presumption of herbicide exposure based upon exposure in Vietnam is not warranted. See 38 C.F.R. § 3.307 (a)(6)(iii). Rather, the Veteran asserts that he was exposed to herbicides coincident with service in Korea and the DMZ. Analysis The Veteran claims entitlement to service connection for diabetes as a result of his exposure to herbicides while entering the DMZ in Korea. In a March 2015 statement, the Veteran contended that as a medical technician, he was responsible for transporting the sick and injured from the DMZ in Korea. Various VA treatment records reflect that the Veteran has been diagnosed diabetes mellitus, type II. Thus, a current disability is established and the first element of service connection is met. The Veteran's service personnel records show that he served in Korea from July 1967 to August 1968 and his unit was Co. C, 2D Medical Battalion until July 1 1968 and you were stationed at Camp Casey, South Korea. Camp Casey is located south of the DMZ. The presumption of herbicide exposure in Korea only applies to units 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. See 38 C.F.R. § 3.307 (a)(6)(iv). VA's Adjudication Procedure Manual 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 presumed for Veterans who allege service along the DMZ in Korea and were assigned to certain units between April 1968 and August 1971. See VBA Manual M21-1, Part IV.ii.1.H.4.a. (2016). However, the Board notes that the Veteran's assigned unit, Co. C, 2D Medical Battalion, is not listed among those recognized by the DoD as having served along the Korean DMZ and also the Veteran has not alleged having been assigned to a unit that was stationed along the DMZ during this time period. See VBA Manual M21-1, Part IV.ii.1.H.4.b. The Board notes, lay testimony is competent to establish facts that can be observed by the use of a person's senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). As such, the Veteran is competent to report the events that occurred in service, including the locations of such service and his duties during service. However, in rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In this case, VA attempted to verify the Veteran's presence in the DMZ in Korea. In a response received in January 7, 2011, the Service Department stated that they reviewed the 1967 history of Headquarters and Headquarters Company, 2nd Infantry Division. This history documents that the unit consisted of Administrative Personnel, Medical Personnel, and the 2nd Infantry Division Band in support of the 2nd Infantry Division. They were located at Camp Edwards, approximately 26 miles from the demilitarized zone (DMZ). The histories do not document the use, storage, spraying or transportation of herbicides. In addition, the records do not mention or document any specific duties performed by the unit members along the DMZ. While the Veteran's service personnel records confirm his unit assignment and his service periods, there is no other evidence submitted to confirm his claimed trips to the DMZ, except for lay evidence from the Veteran. The Board notes the Veteran indicated in a March 2015 statement that he was exposed to herbicides (Agent Orange) while transporting the sick and injured from the DMZ in Korea. The Board has considered the Veteran's service personnel records and the lay evidence of record. However, the Board finds that there is insufficient evidence to establish that the Veteran as likely as not served in or near the DMZ at any time from April 1968 to August 1971. DoD has provided the units of which are known to have served in such a capacity. Although not being on the list is not dispositive, the Board finds that an assertion without more does not meet the evidentiary burden that a claimant must meet to substantiate this element of the claim. See 38 U.S.C.A. § 5107 (a) (a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary). While the Board recognizes that the Veteran submitted pictures of areas which he alleges were sprayed with herbicides and pictures of him in service, these pictures still do not place the Veteran within the DMZ. Moreover, while VA has a duty to assist a claimant to meet this burden, VA attempted to find evidence that the Veteran or his unit did serve in the requisite location during the requisite time period to no avail. As such, the Veteran is not presumed to have been exposed to herbicide agents. Furthermore, the evidence does not show on a facts found basis that he was actually exposed to herbicide agents such as Agent Orange. For instance, VA treatment records from January 2012 indicated that the Veteran stated that he was not sure whether he was exposed to Agent Orange. Therefore, a presumption of service connection for a disease associated with herbicide exposure, here diabetes mellitus, is not warranted. Although the primary contention has been the theory of in-service herbicide exposure, the record also does not reflect that the Veteran's diabetes mellitus first manifested within one year of service, or that such disorder is otherwise related to service on a direct basis. The Veteran's service treatment records are silent for any possible complaints, treatment, or diagnosis related to diabetes mellitus. Additionally, the earliest clinical evidence of diabetes mellitus is from January 1999. Given that there has been an insufficient showing of treatment or symptoms until many years following service, a continuity of symptomatology is not shown. See 38 C.F.R. § 3.303 (b) Finally, the Veteran has not submitted any medical evidence relating diabetes mellitus to service. Although lay persons are competent to provide opinions on some medical issues, here, diabetes mellitus falls outside the realm of common knowledge or observations of a lay person as the onset and etiology of diabetes mellitus involves complex medical questions. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, in this instance, the Veteran as a lay person has not been shown to be capable of making medical conclusions, especially as to complex medical questions, such as a link between his diabetes mellitus and his service. Further, the Veteran does not claim such direct causation and there is nothing in the record showing that a medical professional found the Veteran's in-service medical history supports a later diagnosis. In summary, the Board finds that the Veteran was not exposed to herbicides during service and his diabetes mellitus is not shown to have onset during service, or to be causally or etiologically related to any disease, injury, or incident in service, and did not manifest within one year of the Veteran's discharge from service. Accordingly, the Board finds that the preponderance of the evidence is against the claim of service connection for diabetes mellitus. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable and the claim must be. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102 (2015); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure, is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs