Citation Nr: 1641402 Decision Date: 10/24/16 Archive Date: 11/08/16 DOCKET NO. 16-26 239 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been received to reopen service connection for diabetes mellitus type II, claimed as due to herbicide exposure, and if so, whether service connection is warranted. 2. Entitlement to service connection for ischemic heart disease, claimed as due to herbicide exposure. 4. Entitlement to service connection for non-Hodgkin's lymphoma, claimed as due to herbicide exposure. REPRESENTATION The Veteran is represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran; the Veteran's spouse ATTORNEY FOR THE BOARD A. Tenney, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from May 1971 to November 1974, and from November 1974 to July 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision by the RO in in Indianapolis, Indiana, which denied service connection for ischemic heart disease and non-Hodgkin's lymphoma and reopened and denied service connection for diabetes mellitus. The Veteran testified from Indianapolis, Indiana, at a July 2016 Board Videoconference hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2014) and 38 C.F.R. § 20.900(c) (2015). FINDINGS OF FACT 1. A December 2007 rating decision denied service connection for diabetes mellitus claimed as due to herbicide exposure, finding no exposure to herbicide agents. 2. The Veteran submitted a timely notice of disagreement to the December 2007 rating decision denying service connection for diabetes mellitus, but did not submit a timely substantive appeal. 3. New evidence received since the December 2007 rating decision relates to an unestablished fact of herbicide exposure that is necessary to substantiate a claim of service connection for diabetes mellitus. 4. The Veteran was exposed to herbicide agents during service in Thailand. 5. The Veteran is currently diagnosed with diabetes mellitus type II. 6. Diabetes mellitus is presumed to be associated with herbicide exposure. 7. The Veteran is currently diagnosed with ischemic heart disease. 8. Ischemic heart disease is presumed to be associated with herbicide exposure. 9. The Veteran is currently diagnosed with non-Hodgkin's lymphoma. 10. Non-Hodgkin's lymphoma is presumed to be associated with herbicide exposure. CONCLUSIONS OF LAW 1. The December 2007 rating decision denying service connection for diabetes mellitus became final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2015). 2. Evidence received since the December 2007 rating decision is new and material to reopen service connection for diabetes mellitus. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. Resolving reasonable doubt in favor of the Veteran, the criteria for presumptive service connection for diabetes mellitus as due to herbicide exposure have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326 (2015). 4. Resolving reasonable doubt in favor of the Veteran, the criteria for presumptive service connection for ischemic heart disease as due to herbicide exposure have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326 (2015). 5. Resolving reasonable doubt in favor of the Veteran, the criteria for presumptive service connection for non-Hodgkin's lymphoma as due to herbicide exposure have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159 (2015). The Board is granting service connection for ischemic heart disease and non-Hodgkin's lymphoma, as well as reopening and granting service connection for diabetes mellitus. As there remains no aspect of the claim to be further substantiated, there is no further VCAA duty to notify or assist, or to explain compliance with VCAA duties to notify and assist. Reopening Service Connection for Diabetes Mellitus Generally, when a claim is disallowed, the claim may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. § 7105. However, pursuant to 38 U.S.C.A. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as 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). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Regardless of the RO's determination as to whether new and material evidence had been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In a December 2007 rating decision, the RO denied service connection for diabetes mellitus, finding no exposure to herbicide agents during service. The Veteran submitted a notice of disagreement to the December 2007 rating decision, but did not file a timely substantive appeal within 60 days of the March 2009 statement of the case. Because the Veteran did not perfect a timely appeal, the decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Since the December 2007 rating decision, the Veteran has submitted several lay statements and testified at a July 2016 Board hearing. The evidence submitted since the December 2007 rating decision is new and material as it relates to an unestablished fact of exposure to herbicide agents during service that is necessary to substantiate the issue of service connection for diabetes mellitus; specifically, it has some tendency to show that the Veteran was stationed at an Air Force Base in Thailand during the Vietnam Era and was in proximity to the perimeter of the base where herbicides were known to have been sprayed. See July 2016 Board hearing transcript. At the July 2016 Board hearing, the Veteran testified to witnessing spray trucks with herbicides around the antenna field and perimeter of the base, that his barracks were approximately 150 feet away from the perimeter, and that he performed administration work at a communications center near the area where herbicides were applied. Such evidence could reasonably substantiate a claim of service connection for diabetes; at the very least, such evidence, when considered with the other evidence of record, triggers the VA Secretary's duty to assist. As such, the new evidence meets the low reopening standard of Shade. For these reasons, the Board finds that the additional evidence is new and material to reopen service connection for diabetes. 38 C.F.R. § 3.156(a). Service Connection for Diabetes Mellitus The Veteran contends that service connection for diabetes mellitus type II is warranted as due to in-service exposure to herbicides. Specifically, at the July 2016 Board hearing, the Veteran testified to exposure to herbicides while stationed in Thailand from 1971 to 1972. See July 2016 Board hearing transcript. As discussed above, service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110; 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, 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. The following diseases are deemed associated with herbicide exposure under VA law: AL amyloidosis, Chloracne or other acneform disease consistent with chloracne, Type II diabetes (also known as diabetes mellitus Type II or adult-onset diabetes), Hodgkin's disease, Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), Multiple myeloma, Non-Hodgkin's lymphoma, Parkinson's disease, early onset peripheral neuropathy, Porphyria cutanea tarda, Prostate cancer, Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). As such, diabetes mellitus is a disability for which presumptive service connection based exposure to herbicides may be granted. Id. The Department of Defense has also confirmed to VA that herbicides were used in Thailand during the Vietnam Era. The majority of troops in Thailand during the Vietnam Era were stationed at the Royal Thai Air Force Bases (AFB) of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. This applies only during the Vietnam Era, from February 28, 1961 to May 7, 1975. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10. (q). Initially, the Board finds that the Veteran has currently diagnosed diabetes mellitus type II. Various VA treatment records show a diagnosis of and treatment for diabetes mellitus. Current disability is not in question. After review of the lay and medical evidence of record, the Board finds the evidence to be in relative equipoise on the factual question of herbicide exposure during service in Thailand. In this case, service personnel records reflect the Veteran was stationed at the Udorn AFB in Thailand from 1971 to 1972 as a communications specialist. At the July 2016 Board hearing, the Veteran testified that, throughout service at the Udorn AFB, in Thailand he witnessed spray trucks with herbicides around the antenna field and perimeter of the base, that his barracks were approximately 150 feet away from the perimeter, and that he performed administration work at a communications center approximately 300 feet from the area where herbicides were applied. The Veteran also stated that he did not see foliage near the barracks and/or communications center because of the use of herbicides. Because the self-reports of the close proximity between the communications center and barracks to the perimeter and witnessing spray trucks with herbicides around the antenna field and perimeter of the base are facts consistent with the circumstances and conditions of the Veteran's service at the Udorn AFB in Thailand during the Vietnam era. Because the use of herbicide agents at AFBs during the Vietnam era is recognized, the Board finds the Veteran's account of herbicide exposure during service to be credible. Evidence weighing against a finding of exposure to herbicides includes a June 2016 VA formal finding that herbicide exposure has not been corroborated because of an inability to verify herbicide exposure in Thailand. Based on the foregoing, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran was in fact exposed to herbicide agents during service in accordance with in-service duties and living quarters near the base perimeter, as well as the self-reports of witnessing spray trucks with herbicides around the antenna field and perimeter of the base. See 38 C.F.R. §§ 3.307, 3.309. Because diabetes mellitus type II is presumptively associated with herbicide exposure, service connection for diabetes mellitus type II as a result of herbicide exposure is warranted on a presumptive basis. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Because service connection is granted on a presumptive basis, no further discussion is required with respect to other theories of entitlement to service connection. See 38 U.S.C.A. § 7104 (West 2014) (stating that the Board decides questions of law or fact). Service Connection for Ischemic Heart Disease The Veteran contends that service connection for ischemic heart disease is warranted as due to in-service exposure to herbicides. Specifically, at the July 2016 Board hearing, the Veteran testified to exposure to herbicides while stationed in Thailand from 1971 to 1972. See July 2016 Board hearing transcript. Initially, the Board finds that the Veteran has currently diagnosed ischemic heart disease as various VA treatment records show a diagnosis of and treatment for the disability. Current disability is not in question. Next, as discussed above, the Board has found that the Veteran was exposed to herbicide agents during service in Thailand. Accordingly, as ischemic heart disease is a disability for which presumptive service connection based exposure to herbicides may be granted, the Veteran is entitled to the presumptions based on herbicide exposure. See 38 C.F.R. §§ 3.307, 3.309. Because service connection is granted on a presumptive basis, no further discussion is required with respect to other theories of entitlement to service connection. See 38 U.S.C.A. § 7104 (West 2014) (stating that the Board decides questions of law or fact). Service Connection for Non-Hodgkin's Lymphoma The Veteran contends that service connection for non-Hodgkin's lymphoma is warranted as due to in-service exposure to herbicides. Specifically, at the July 2016 Board hearing, the Veteran testified to exposure to herbicides while stationed in Thailand from 1971 to 1972. See July 2016 Board hearing transcript. At the Board hearing, the Veteran also testified that, throughout service at the Udorn AFB, he witnessed spray trucks with herbicides around the antenna field and perimeter of the base, that his barracks were approximately 150 feet away from the perimeter, and that he performed administration work at a communications center approximately 300 feet from the perimeter. Id. Initially, the Board finds that the Veteran has currently diagnosed non-Hodgkin's lymphoma. Various VA treatment records show a diagnosis of and treatment for cancer. Current disability is not in question. Next, as discussed above, the Board has found that the Veteran was exposed to herbicide agents during service in Thailand. Accordingly, as non-Hodgkin's lymphoma is a disability for which presumptive service connection based exposure to herbicides may be granted, the Veteran is entitled to the presumptions based on herbicide exposure. See 38 C.F.R. §§ 3.307, 3.309. Because service connection is granted on a presumptive basis, no further discussion is required with respect to other theories of entitlement to service connection. See 38 U.S.C.A. § 7104 (West 2014) (stating that the Board decides questions of law or fact). ORDER New and material evidence having been received, the appeal to reopen service connection for diabetes mellitus type II is granted. Service connection for diabetes mellitus type II, as due to herbicide exposure, is granted. Service connection for ischemic heart disease, as due to herbicide exposure, is granted. Service connection for non-Hodgkin's lymphoma, as due to herbicide exposure, is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs