Citation Nr: 1606191	
Decision Date: 02/18/16    Archive Date: 03/01/16

DOCKET NO.  03-20 523	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1. Entitlement to service connection for diabetes mellitus, type II, as a result of exposure to herbicides. 
 
2. Entitlement to service connection for a skin disability, as a result of exposure to herbicides. 
 
3. Entitlement to service connection for sarcoid arthritis (claimed as a disability of the bones and muscles), as a result of exposure to herbicides.

4. Entitlement to service connection for hypertension, as a result of exposure to herbicides. 

5. Entitlement to service connection for respiratory cancer, as a result of exposure to herbicides. 

6. Entitlement to service connection for Hodgkin's disease, as a result of exposure to herbicides. 

7. Entitlement to service connection for a disability manifested by constant stinging in the chest, as a result of exposure to herbicides. 

8. Entitlement to service connection for posttraumatic stress disorder (PTSD), as a result of exposure to herbicides. 

9. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for asthmatic bronchitis, as a result of exposure to herbicides.

10. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for uveitis of the right eye with increased ocular pressure and defective vision, as a result of exposure to herbicides.

11. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for increased ocular pressure of the left eye with defective vision, as a result of exposure to herbicides.


REPRESENTATION

Appellant represented by:	Sean A. Ravin, Attorney


ATTORNEY FOR THE BOARD

M. Purdum, Counsel


INTRODUCTION

The Veteran served on active duty from January 1967 to December 1968, and has a period of active duty for training (ACDUTRA) dated from May 26, 1979, to June 9, 1979, in the Army National Guard in Connecticut. 
This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). A May 2002 rating decision denied service connection for diabetes mellitus, type II, a skin disability, and sarcoid arthritis. A November 2009 rating decision denied service connection for hypertension, respiratory cancer, Hodgkin's disease, a disability manifested by constant stinging in the chest, and PTSD, and declined to reopen previously denied claims of entitlement to service connection for asthmatic bronchitis, uveitis of the right eye with increased ocular pressure and defective vision, and increased ocular pressure of the left eye with defective vision. 

In August 2007, the Board denied the claims of entitlement to service connection for diabetes mellitus, type II, a skin disability, and sarcoid arthritis. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court), which in November 2008 granted a Joint Motion for Remand (Joint Motion), and remanded the issues to the Board. Thus, in April 2009, the Board remanded the issues for additional development. The file has now been returned to the Board for further consideration.

Meanwhile, the Veteran perfected his appeal as to the remaining issues included on the title page herein. 

The issues of entitlement to service connection for diabetes mellitus, type II, a skin disability, sarcoid arthritis, hypertension, respiratory cancer, Hodgkin's disease, a disability manifested by constant stinging in the chest, PTSD, asthmatic bronchitis, uveitis of the right eye with increased ocular pressure and defective vision, and increased ocular pressure of the left eye with defective vision, each as a result of exposure to herbicides, addressed in the REMAND portion of the decision below, are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The Veteran did not appeal a September 1991 RO decision that denied service connection for asthmatic bronchitis, uveitis of the right eye with increased ocular pressure and defective vision, and increased ocular pressure of the left eye with defective vision. 
 
2. Evidence received since the September 1991 RO decision is not cumulative or redundant of evidence previously of record and raises a reasonable possibility of substantiating the claims for service connection for asthmatic bronchitis, uveitis of the right eye with increased ocular pressure and defective vision, and increased ocular pressure of the left eye with defective vision, each as a result of exposure to herbicides.


CONCLUSIONS OF LAW

1. The September 1991 RO decision that denied service connection for asthmatic bronchitis, uveitis of the right eye with increased ocular pressure and defective vision, and increased ocular pressure of the left eye with defective vision, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2015). 
 
2. The evidence received subsequent to the September 1991 RO decision is new and material; the claims of entitlement to service connection for asthmatic bronchitis, uveitis of the right eye with increased ocular pressure and defective vision, and increased ocular pressure of the left eye with defective vision, each as a result of exposure to herbicides, are reopened. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108 (West 2002 & Supp. 2015); 38 C.F.R. §§ 3.156 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

New and Material Evidence

In general, VA rating decisions that are not timely appealed are final. 38 U.S.C.A.   § 7105; 38 C.F.R. § 20.302. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C.A. § 5108. New evidence is defined as 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). 

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). Furthermore, "material evidence" could be "some new evidence [that] may well contribute to a more complete picture of the circumstances surrounding the origin of the Veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Hodge v. West, 155 F. 3d 1356, 1363 (Fed. Cir. 1998). If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to the merits of the claim on the basis of all of the evidence of record.

VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Thus, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id.   

Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). 

In this case, the Veteran's initial claims of entitlement to service connection for asthmatic bronchitis, uveitis of the right eye with increased ocular pressure and defective vision, and increased ocular pressure of the left eye with defective vision were denied in a September 1991 RO decision. Within one year of the RO's rating decision, the Veteran did not express disagreement with the decision, nor was any relevant new and material evidence, medical or lay, physically or constructively received by VA prior to the expiration of the appellate period. See 38 U.S.C.A.       § 7105; 38 C.F.R. §§ 3.156(b); 20.201; see also Buie, 24 Vet. App. 242, at 251-52. As such, the September 1991 RO decision became final.

The relevant evidence of record at the time of the September 1991 RO decision included the Veteran's claim and related statements, his service treatment records, his private treatment records, and reports of July 1991 and August 1991 VA examinations. His claims were denied as there was no evidence of in-service increased ocular pressure and no evidence that his impaired vision noted prior to service was aggravated by service, and uveitis of the right eye was not noted until many years after service. 

Evidence added to the record since that time includes the Veteran's claim and related statements, as well as additional VA and private treatment records. His related statements and submissions, including buddy statements, testimony from a similar Board case, and internet articles, include numerous assertions that he was exposed to herbicides and other chemicals during service in the Panama Canal Zone and at Fort Drum, New York. His statements and submissions regarding herbicide or other chemical exposure are new and they are material; as with VA's assistance, in the form of additional development to confirm such exposure, the evidence could reasonably result in substantiation of the claims. Shade, 24 Vet. App. 110, 118.

As the Board has determined that new and material evidence has been received as to the Veteran's previously denied claims, it is necessary to consider whether the Veteran would be prejudiced by the Board proceeding to a decision on the merits. However, as will be discussed below, further development is required prior to the Board's review of the merits of the claims.

ORDER

New and material evidence having been received, the claim of entitlement to service connection for asthmatic bronchitis, as a result of exposure to herbicides, is reopened, and the appeal is granted to this extent only.

New and material evidence having been received, the claim of entitlement to service connection for uveitis of the right eye with increased ocular pressure and defective vision, as a result of exposure to herbicides, is reopened, and the appeal is granted to this extent only.

New and material evidence having been received, the claim of entitlement to service connection for increased ocular pressure of the left eye with defective vision, as a result of exposure to herbicides, is reopened, and the appeal is granted to this extent only.


REMAND

At the time of its April 2009 remand as to the issues of entitlement to service connection for diabetes mellitus, type II, a skin disability, and sarcoid arthritis, each as a result of exposure to herbicides, the Board directed the AOJ to complete specific development of the Veteran's claims to comply with the directives of the November 2008 Joint Motion. It is clear that the salient issue before the Board, as to all of the disabilities currently on appeal, is whether the Veteran was exposed during service to herbicides and/or other chemicals during service. This issue has been complicated by multiple entities serving as record keepers and multiple requests made by the AOJ for information made numerous times over the course of the appeal. However, the Board requires additional development prior to adjudicating the Veteran's claims.

In summary, the Veteran asserts that he was exposed to herbicides and/or chemicals during active service in the Panama Canal Zone and during service with the Army National Guard in Fort Drum, New York. The Veteran's service personnel records reflect that he was stationed in the Canal Zone in Panama, with the Co A 4th Bn 10th Inf, Fort Davis, from March 26, 1967, to December 7, 1968. Special orders indicate that the Veteran, assigned to the HHC 4th Bn 10th Inf, was temporarily assigned to duty at Fort Clayton, Canal Zone, on February 2, 1968; and was temporarily assigned to support the Jungle Operations Course at Fort Sherman, Canal Zone, from April 6, 1968, to May 15, 1968, with Co C 4th Bn 10th Inf. The Veteran submitted a certificate of completion of training given at the 1031st USAR School in West Hartford, Connecticut, dated in May 1979. A retirement points capture document in his service personnel records indicates that the Veteran had a period of ACDUTRA, noted above, dated from May 26, 1979, to June 9, 1979, in the Army National Guard in Connecticut. 

To date, the AOJ, over the course of the appeal, obtained the Veteran's service treatment and personnel records from his period of active service dated from January 1967 to December 1968, and there is no indication that there are outstanding service records related to that period of service. The AOJ has also obtained service treatment and personnel records from the Veteran's Army National Guard service in Connecticut, including his separation orders, his service separation document, his personnel qualification record, and a retirement credits capture document, as well as his September 1978 National Guard service entrance medical examination and history reports. 

The records gathered, despite the AOJ's requests to the National Personnel Records Center (NPRC), the Adjutant Generals in Mississippi and Connecticut, the Health Services, Medical Records Release, in Mississippi, and the Joint Force Headquarters, in Mississippi, are silent for evidence that the Veteran was assigned to any type of service in Fort Drum, New York, in 1979. The Board, in its April 2009 remand, directed the AOJ to seek outstanding records using alternative sources, using the information of record and any additional information the Veteran may provide. 

On remand, the AOJ should thus forward a NA Form 13055 to the Veteran in order to obtain any information that would be helpful in obtaining any outstanding service treatment and/or personnel records from his Army National Guard service in Connecticut, and conduct another search for such records based upon the Veteran's response. All requests should specifically seek records related to the location at which the Veteran was assigned during his period of ACDUTRA dated from May 26, 1979, to June 9, 1979, in the Army National Guard in Connecticut.

Despite the AOJ's inquires over the course of the appeal, there is no evidence that the Veteran was exposed to herbicides during service in the Panama Canal Zone, and as discussed above, there is, as of yet, no evidence of any type of service in Fort Drum, New York, such that inquires as to any exposure in that location could be made. The Board, in its April 2009 remand, directed the AOJ to use official channels, such as the NPRC and the service department, to ascertain whether any unit to which the Veteran was assigned during his active service, including any ACDUTRA or inactive duty for training (INACDUTRA), was exposed to a herbicide agent, such as Agent Orange, and directed the AOJ to attempt to verify the Veteran's exposure to chemicals at Fort Drum, New York, during training in May 1979. The Veteran did not respond to the AOJ's March 2010 and May 2013 requests as to his alleged exposure and the AOJ, in Formal Findings dated in November 2013, March 2014, and April 2014, determined that sufficient information required to verify exposure to herbicides did not exist.

On remand, the AOJ should provide the Veteran a final opportunity to describe his alleged exposure to herbicides and/or other chemicals during service, including in the Panama Canal Zone and at Fort Drum, New York. As noted above, the Veteran did not respond to the AOJ's March 2010 and May 2013 requests. The Veteran has submitted an April 2014 statement from a fellow service member reporting that on or about November 1, 1966, he was stationed in the Panama Canal Zone, specifically, Fort Davis and Fort Sherman. He reported that the Army tested herbicides, Agent Orange, and other chemicals there, and that he saw the use of Agent Orange, fire, and a bulldozer to clear foliage for a jump site and to manage the jungles, generally, at Fort Sherman. He asserted that the chemicals had to be strong, Agent Orange and other chemicals, in order to clear the foliage in Panama.

Even if the Veteran does not respond to the AOJ's inquires as to the specifics of his in-service exposure to herbicides and/or other chemicals, the AOJ should request verification from the United States Army and Joint Services Records Research Center (JSRRC), using the information already of record, as to whether any unit to which the Veteran was assigned in the Panama Canal Zone and at Fort Drum, New York, was exposed to herbicides and/or other chemicals during any type of active service, and if any Army National Guard members from Connecticut were sent to Fort Drum, New York, from May 26, 1979, to June 9, 1979. 

Whether or not, if as a result of this remand, the AOJ is able to place the Veteran at Fort Drum, New York, from May 26, 1979, to June 9, 1979, and confirm that he was exposed to herbicides and/or other chemicals there, and/or confirm that he was exposed to the same during active service in the Panama Canal Zone, additional development is required in order the adjudicate the service connection claims on appeal. In short, the Veteran's updated VA and private treatment records should be obtained and associated with the claims file and he should be afforded VA examinations to determine the etiology of the disabilities claimed, outside of any disabilities presumed related to exposure to herbicides. 

In this regard, the Board notes that the Veteran asserts that all of the disabilities on appeal are related to in-service exposure to tactical herbicides, Agent Orange, and/or other chemicals. He has also asserted that his claimed PTSD is related to training troops that were going to the Republic of Vietnam during his service in the Panama Canal Zone. He also asserts that he experienced the beginning of his skin disability during active service. On his January 1976 service entrance report of medical history, the Veteran reported that he wore glasses. His service treatment records dated in February 1967 indicate that he complained of swollen feet, and in October 1967, he complained of left wrist weakness. In February 1968, he complained of chest pain over the sternum, and in June 1968 he complained of an injury to the left ankle and also complained of arthritis in the knees and ankles. On his service separation medical examination in November 1968, he presented with circular old scars of the bilateral legs. 




Accordingly, the case is REMANDED for the following action:

1. Contact the Veteran, documenting all inquiries and responses in the claims file and informing him that his complete assertions as to his service history and alleged exposure to herbicides and/or other chemicals, are necessary to adjudicate his claims, and:

(a) Provide him a NA Form 13055 in order to obtain any information that would be helpful in obtaining any outstanding service treatment and/or personnel records from his Army National Guard service in Connecticut, specifically, records related to the location at which he was assigned during his period of ACDUTRA dated from May 26, 1979, to June 9, 1979.

(b) Provide him a final opportunity to describe the circumstances, including specific dates and locations, of his alleged exposure to herbicides and/or other chemicals, during active service in the Panama Canal Zone and Fort Drum, New York. 

2. Based upon the information provided by the Veteran on the NA Form 13055, and considering any appropriate repository of records, including the U.S. Army Personnel Administration Center in St. Louis, Missouri, attempt to obtain any outstanding service treatment and/or personnel records from the Veteran's Army National Guard service in Connecticut, specifically seeking records related to the location at which the Veteran was assigned during his period of ACDUTRA dated from May 26, 1979, to June 9, 1979. Any and all responses, including negative responses, must be properly documented in the claims file. If a negative response is received from any facility, the Veteran must be duly notified and provided an opportunity to submit such records.

3. Based upon the information provided by the Veteran as to his alleged in-service exposure to herbicides and/or other chemicals, and/or information already of record, contact the JSRRC and:

(a) Request verification of members of the Army National Guard in Connecticut being assigned to Fort Drum, New York, from May 26, 1979, to June 9, 1979.

(b) Request verification of members of the Army National Guard, while assigned to service at Fort Drum, New York, from May 26, 1979, to June 9, 1979, being exposed to herbicides and/or other chemicals.

(c) Request verification that any unit to which the Veteran was assigned during his active service in the Panama Canal Zone, or any other identified period of service, was exposed to herbicides and/or other chemicals, considering that the Veteran was stationed in the Canal Zone in Panama, with the Co A 4th Bn 10th Inf, Fort Davis, from March 26, 1967, to December 7, 1968, that the Veteran, assigned to the HHC 4th Bn 10th Inf, was temporarily assigned to duty at Fort Clayton, Canal Zone, on February 2, 1968, and that the Veteran was also temporarily assigned to support the Jungle Operations Course at Fort Sherman, Canal Zone, from April 6, 1968, to May 15, 1968, with Co C 4th Bn 10th Inf.
Any and all responses, including negative responses, must be properly documented in the claims file. If a negative response is received from any facility, the Veteran must be duly notified and provided an opportunity to submit such records.

4. Obtain and associate with the Veteran's claims file his VA updated treatment records maintained by the VA Medical Center (VAMC) in Jackson, Mississippi. Make certain that the Veteran's VA treatment records dated during the entire appellate period are of record. Any and all responses, including negative responses, must be properly documented in the claims file. If a negative response is received from any VA facility, the Veteran must be duly notified and provided an opportunity to submit such records.

5. Send the Veteran a VA Forms 21- 4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, and request that he complete such in order to obtain his updated private treatment records. Advise the Veteran that he may submit his own private treatment records if he so chooses. Any and all responses, including negative responses, must be properly documented in the claims file. If a negative response is received from any facility, the Veteran must be duly notified and provided an opportunity to submit such records.

6. When the above development has been completed, and only if additional pertinent evidence has been obtained pursuant to such development, afford the Veteran VA examination(s), by appropriate examiner(s), to determine the nature, extent, and etiology of any manifested diabetes mellitus, type II, skin disability, sarcoid arthritis (claimed as a disability of the bones and muscles), hypertension, respiratory cancer, Hodgkin's disease, a disability manifested by constant stinging in the chest, PTSD and/or any acquired psychiatric disorder, asthmatic bronchitis, uveitis of the right eye with increased ocular pressure and defective vision, and increased ocular pressure of the left eye with defective vision, each claimed to include as a result of exposure to herbicides. All indicated tests and studies should be performed. The examiners should consider/address the following:

(a) Consider any determination by the AOJ as to whether the Veteran has service beyond his active service dated from January 1967 to December 1968 and his ACDUTRA dated from May 26, 1979, to June 9, 1979; or was exposed to herbicides and/or other chemicals, during active service in the Panama Canal Zone, from March 26, 1967, to December 7, 1968, during ACDUTRA in Fort Drum, New York, from May 26, 1979, to June 9, 1979, or during any other period of service.

(b) Consider the Veteran's lay assertion that his PTSD is related to training troops that were going to the Republic of Vietnam during his service in the Panama Canal Zone, as well as exposure to herbicides and/or other chemicals, and that he experienced the beginning of his skin disability during active service. Consider that on his January 1976 service entrance report of medical history, the Veteran reported that he wore glasses, and that his service treatment records demonstrate that in February 1967, he complained of swollen feet, in October 1967, he complained of left wrist weakness, in February 1968, he complained of chest pain over the sternum, and in June 1968 he complained of an injury to the left ankle and also complained of arthritis in the knees and ankles. Consider that on his service separation medical examination in November 1968, he presented with circular old scars of the bilateral legs. 

(c) Summarize the medical history, including the onset and course, of any manifested diabetes mellitus, type II, skin disability, sarcoid arthritis (claimed as a condition of the bones and muscles), hypertension, respiratory cancer, Hodgkin's disease, a disability manifested by constant stinging in the chest, PTSD and/or any acquired psychiatric disorder, asthmatic bronchitis, and uveitis of the right eye with increased ocular pressure of both eyes. Describe any current symptoms and manifestations attributed to any manifested disabilities. 

(d) In particular, the examiner(s) are requested to provide the following opinions: 

(i) Is it at least as likely as not (at least a 50 percent probability) that any diagnosed diabetes mellitus, type II, skin disability, sarcoid arthritis (claimed as a condition of the bones and muscles), hypertension, respiratory cancer, Hodgkin's disease, a disability manifested by constant stinging in the chest, PTSD and/or any acquired psychiatric disorder, asthmatic bronchitis, or uveitis of the right eye with increased ocular pressure of both eyes is/are the result of in-service exposure to herbicides and/or other chemicals? 
(ii) In the alternative, is it at least as likely as not (at least a 50 percent probability) that any diagnosed diabetes mellitus, type II, skin disability, sarcoid arthritis (claimed as a condition of the bones and muscles), hypertension, respiratory cancer, Hodgkin's disease, a disability manifested by constant stinging in the chest, PTSD and/or any acquired psychiatric disorder, asthmatic bronchitis, or uveitis of the right eye with increased ocular pressure of both eyes was/were incurred in or aggravated by any period of active service, ACDUTRA, or for injuries only, INACDUTRA? 

(iii) Also (the Board will determine the applicability of any regulations regarding presumptive service connection of certain disabilities), is it at least as likely as not (at least a 50 percent probability) that any diagnosed diabetes mellitus, type II, skin disability, sarcoid arthritis (claimed as a condition of the bones and muscles), hypertension, respiratory cancer, Hodgkin's disease, a disability manifested by constant stinging in the chest, PTSD and/or any acquired psychiatric disorder, asthmatic bronchitis, or uveitis of the right eye with increased ocular pressure of both eyes was/were manifest to a compensable degree within one year of separation from active service in December 1968, thus by December 1969? 

(iv) Finally, as to the Veteran's refractive error, noted upon entry into service on examination in January 1967, and claimed as defective vision in the present appeal, is it at least as likely as not (50 percent or greater probability) that the Veteran's refractive error, claimed as defective vision, was subject to, or aggravated by, a superimposed disease or injury during service, including consideration of his later-diagnosed uveitis of the right eye with increased ocular pressure of both eyes and/or any in-service exposure to herbicides and/or other chemical? 

The claims file, including a complete copy of this remand, must be made available to the examiner for review of the pertinent medical and other history. It is critically necessary that the examiner discuss the underlying medical rationale of the opinions, if necessary citing to specific evidence in the record. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice.

7. Then, readjudicate the Veteran's claims in light of the additional evidence. If his claims are not granted to his satisfaction, send him and his attorney an SSOC and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).






(Continued on the next page)
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 2015).




______________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs