Citation Nr: 1707008 Decision Date: 03/08/17 Archive Date: 03/16/17 DOCKET NO. 11-33 693 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for type II diabetes mellitus. 2. Entitlement to service connection for type II diabetes mellitus, to include as due to in-service exposure to herbicides while deployed to Thailand. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Avery M. Schonland, Associate Counsel INTRODUCTION The Veteran had active service from June 1973 through April 1976. This included deployment to Thailand from February 1975 through April 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The RO in Roanoke, Virginia certified this case to the Board on appeal. The appeal initially included claims for an acquired psychiatric disorder (including posttraumatic stress disorder), alcohol abuse, diverticula (claimed as a colon disorder), a neck injury, heart problems, and dizziness. However, the Veteran withdrew these issues by limiting his appeal to the issue of service connection for type II diabetes mellitus on his December 2011 substantive appeal. These issues are not before the Board for appellate review. See 38 U.S.C.A. § 7105(d)(3). This appeal was processed using the Virtual VA and the Veterans Benefits Management System electronic claims files. FINDINGS OF FACT 1. The claim for service connection for type II diabetes mellitus was previously considered and denied by the RO in a December 2002 rating decision. The Veteran was informed of that decision and of his appellate rights, but he did not appeal or file new evidence within one year. 2. The evidence received since the December 2002 rating decision is not cumulative or redundant of the evidence of record at the time of the prior denial and relates to an unestablished fact necessary to substantiate the claim for service connection for type II diabetes mellitus. 3. The Veteran was exposed to herbicides while serving in Thailand at Udorn Royal Thai Air Force Base from February 1975 to April 1976. 4. The Veteran has been diagnosed with type II diabetes mellitus. CONCLUSIONS OF LAW 1. The December 2002 rating decision denying service connection for type II diabetes mellitus is final. 38 U.S.C.A. § 7105(c) (West 2000); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.302, 20.1103 (2002). 2. The evidence received since the December 2002 rating decision is new and material, and the claim for service connection for type II diabetes mellitus is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2016). 3. The Veteran's type II diabetes mellitus is presumed to have been incurred during his active service in Thailand during the Vietnam era. 38 U.S.C.A. §§ 1101, 1110, 1116, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309(e) (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the favorable action taken herein, the Board finds that further discussion of the Veterans Claims Assistance Act of 2000 (VCAA) is not required at this time. New and Material Evidence In a December 2002 rating decision, the RO previously considered and denied the Veteran's June 2002 claim for service connection for type II diabetes mellitus. The RO notified the Veteran of the December 2002 rating decision later that month, finding no diagnosis for type II diabetes mellitus and no qualifying service within the Republic of Vietnam. The Veteran did not initiate an appeal. Therefore, the December 2002 decision is final. 38 U.S.C.A. § 7105(d)(3) (West 2014); 38 C.F.R. §§ 3.156, 3.160(d), 20.200, 20.302, 20.1103 (2016). The Veteran sought to reopen his claim for service connection for diabetes in September 2009. The RO continued its denial of his claim in the March 2010 rating decision on appeal, finding no new and material evidence sufficient to reopen the claim. However, his claim may be reopened if new and material evidence has been secured or presented since the last final rating decision. 38 U.S.C.A. § 5108, 38 C.F.R. § 3.156(a). The Board has a jurisdictional responsibility to consider whether it is proper for a claim to be reopened. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Board must preliminarily decide whether new and material evidence has been presented in a case, before addressing the merits of the claim. Butler v. Brown, 9 Vet. App. 167, 171 (1996). Therefore, the Board must consider the question of whether new and material evidence has been received despite the RO's findings in the March 2010 rating decision. New evidence means evidence not previously submitted to agency decision makers. Material evidence means 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). New evidence is not that which is merely cumulative of other evidence on the record. Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). For the purpose of establishing whether new and material evidence has been received, the credibility of the new evidence is to 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. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When making a determination on whether the submitted evidence meets the definition of new and material evidence, the Board must consider whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying the concepts derived from the VCAA. Shade, 24 Vet. App. at 118. Moreover, the Veteran need not present evidence as to each previously unproven element of a claim. Shade, 24 Vet. App. at 120. Originally, the RO denied service connection for diabetes in the December 2002 rating decision finding no current diagnosis. The available medical records at that time included July 2002 treatment for posttraumatic stress disorder and December 2002 treatment for the Veteran's feet at the Hampton VA Medical Center (VAMC). These treatment records did not reflect any treatment of or diagnosis for type II diabetes mellitus. The Veteran had also claimed exposure to herbicides in Vietnam on his original June 2002 claim, and the RO found no documentation for qualifying service within the Republic of Vietnam in his service personnel records. Since the December 2002 rating decision, the Veteran has submitted more recent treatment records from the Hampton VAMC, showing a January 2014 diagnosis for adult onset diabetes. As such, the evidence reflects a current diagnosis for diabetes. Moreover, the Veteran submitted an October 2009 stressor statement in support of his claim for service connection of posttraumatic stress disorder, reporting his exposure to herbicides in Thailand rather than Vietnam. As such, the evidence also reflects a new source of possible herbicide exposure during service. The medical evidence showing a diagnosis for type II diabetes mellitus and the Veteran's statement reporting exposure to herbicides in Thailand provide information as to a current chronic condition and an in-service event. As is explained below, this new evidence in conjunction with research from the Army corroborating his description of herbicide exposure in Thailand, will substantiate the claim. See Shade, 24 Vet. App. at 117. Accordingly, the Board concludes that new and material evidence has been presented to reopen the Veteran's previously denied claim for service connection for type II diabetes mellitus. Service Connection for Type II Diabetes Mellitus As discussed above, the Veteran has described his exposure to herbicides in Thailand. At an October 2010 Decision Review Officer's Hearing, the Veteran reported serving in Thailand at Ramasun Station near Udorn Royal Thai Air Force Base (Udorn RTAFB). This is consistent with his service personnel records, showing that he served with the H & S Company of the 7th Radio Research Field Site (7th RRFS) in Thailand from February 1975 through April 1976. U.S. Army Intelligence and Security Command (Army INSCOM) has verified that the 7th RRFS was at Ramasun Station near Udorn RTAFB during Fiscal Year 1975. The Veteran has further argued that his diabetes is due to his in-service exposure to herbicides in Thailand. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease or injury 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). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, capable of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including type II diabetes mellitus, shall be service-connected if the requirements of section 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(d)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(d)(6)(i). Section 3.307(d)(6) also provides that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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(d)(6)(iii). VA's Compensation & Pension Service (C&P) has issued information concerning the use of herbicides in Thailand during the Vietnam War. In a May 2010 bulletin, C&P indicated that it has determined that there was significant use of herbicides on the fenced in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. A primary source for this information was the declassified Vietnam era Department of Defense (DOD) document titled Project CHECO Southeast Asia Report: Based Defense in Thailand. Although DOD indicated that the herbicide use was commercial in nature rather than tactical (such as Agent Orange), C&P has determined that there was some evidence that herbicides of a tactical nature, or that of a "greater strength" commercial variant, were used. Given this information, C&P has determined that special consideration should be given to veterans whose duties placed them on or near the perimeters of Thailand military bases. Consideration of herbicide exposure on a "facts found or direct basis" should be extended to those veterans. Significantly, C&P stated that "[t]his allows for presumptive service connection of the diseases associated with herbicide exposure." The May 2010 bulletin identifies several bases in Thailand, including Udorn RTAFB. C&P indicated that herbicide exposure should be acknowledged on a facts found or direct basis if (1) a United States Air Force veteran served at one of the air bases as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by his or her military occupational specialty, performance evaluations, or other credible evidence; (2) an Army veteran was a member of a military police unit that served at or near a base perimeter in Thailand; or (3) an Army veteran who served on an air base in Thailand and provided perimeter security. For the criteria for presumptive service connection to be met for most of the diseases listed at 38 C.F.R. § 3.309(e), including type II diabetes mellitus, that disease shall have become manifest to a degree of 10 percent or more any time after service. 38 C.F.R. § 3.307(a)(6)(ii). The existence of a current disability is not at issue in this case. Post-service VA medical treatment records show that the Veteran has been diagnosed with type II diabetes mellitus as discussed above. The records further show that the disease manifested to at least a compensable degree. For example, the Hampton VAMC treatment records record a diabetic diet as therapy for his diabetes in September 2010 and February 2012. 38 C.F.R. § 4.119, Diagnostic Code 7913 (noting 10 percent is warranted for diabetes managed with restricted diet only). Moreover, the Veteran's service personnel records and the Army INSCOM response show that he served in Thailand at Ramasun Station and Udorn RTAFB during the period from February 1975 to April 1976, so that Agent Orange exposure may have occurred, depending on the nature and circumstances of his period of duty there. Therefore, the only question remaining is whether the Veteran was exposed to herbicides in service such that presumptive service connection is warranted. While the Veteran served in the Army in Thailand, rather than the Air Force in Thailand or the Army in Vietnam, and his military occupational specialty was that of a motor vehicle operator, rather than a security guard; he reported in an October 2009 statement that he filled in as a security guard for the Thai Security Guards during a strike. Army INSCOM's February 2011 response corroborates the fact of the Fiscal Year 1975 strike by the Thai Security Guards, and further corroborates that personnel from Ramasun Station filled in as Security Guards until company personnel could be provided and duty rosters established. Although Army INSCOM was unable to verify if the Veteran had been among those standing in for the Thai Security Guards, the Board finds his descriptions to be generally credible and consistent with the circumstances of his service and the information verified by Army INSCOM. Further, his description of his in-service duties included work as a Security Guard, which was specifically highlighted by the May 2010 C&P bulletin as one type of work that would have placed personnel on or near the perimeters of Thailand military bases. There is no evidence to the contrary, and every detail that can be verified has been verified by the February 2011 Army INSCOM response. Accordingly, as a factual matter, affording the Veteran the benefit of the doubt, the Board finds that it is at least as likely as not that the Veteran was exposed to herbicide agents during his deployment to Thailand from February 1975 to April 1976. As he also has type II diabetes mellitus that is manifested to a compensable level for VA purposes as noted above, diabetes mellitus shall be presumed to be due to exposure to certain herbicide agents. See 38 C.F.R. §§ 3.307, 3.309(e). Accordingly, entitlement to service connection for diabetes mellitus is warranted. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for type II diabetes mellitus is reopened. Service Connection for type II diabetes mellitus is granted. ______________________________________________ A. S. Caracciolo Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs