Citation Nr: 1736022 Decision Date: 08/30/17 Archive Date: 09/06/17 DOCKET NO. 14-29 109A ) 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 submitted to reopen a previously denied claim of service connection for diabetes mellitus, type II, to include as due to exposure to an herbicide agent. 2. Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to an herbicide agent. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his friend ATTORNEY FOR THE BOARD S. Kalolwala, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1962 to May 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In July 2017, the Veteran appeared with his representative for a travel board hearing before the undersigned. A transcript of that proceeding has been associated with the record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. A January 2008 rating decision denied, in pertinent part, the claim of service connection for diabetes mellitus, type II; the Veteran did not perfect an appeal with respect to this issue. 2. The evidence received since the January 2008 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the underlying claim of entitlement to service connection for diabetes mellitus, type II. 3. The Veteran did not serve in Vietnam during service, and was not otherwise exposed to herbicides during service. 4. The Veteran's diabetes mellitus, type II, is not caused by, a result of, or otherwise etiologically related to military service. CONCLUSIONS OF LAW 1. The January 2008 rating decision denying, in pertinent part, service connection for diabetes mellitus, type II, is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2016). 2. New and material evidence sufficient to reopen the claim of service connection for diabetes mellitus, type II, has been received. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2016). 3. The criteria for service connection of the Veteran's diabetes mellitus, type II, have not been met. 38 U.S.C.A. § 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence VA must reopen a previously and finally disallowed claim when "new and material evidence" is presented or secured. 38 U.S.C.A. §§ 5108, 7104(b); 38 C.F.R. § 3.156(a). In order to satisfy these requirements, the evidence "must be both new and material." Smith v. West, 12 Vet. App. 312, 314 (1999). "New and material evidence" is defined as follows: New evidence means existing 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). In making the determination of materiality, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board notes that 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 evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Here, the relevant evidence at the time of the January 2008 rating decision consisted of the Veteran's service treatment records (STRs), military personnel records (MPRs), VA and private treatment records, and lay statements by the Veteran and other sources. The relevant evidence that has been added to the record since the January 2008 rating decision consists of the Veteran's lay statements regarding exposure to herbicide agents in service. For instance, at the July 2017 Board hearing the Veteran testified that his military occupational specialty (MOS), i.e., communications crewman, required him to lay communication wires near the perimeter of the base in Korat, Thailand, thereby exposing him to Agent Orange. A transcript of the Veteran's May 2014 RO hearing has also been associated with the record. The Board has considered whether this evidence constitutes new and material evidence sufficient to reopen the claim of service connection for diabetes mellitus, type II, and finds that it does. The new evidence was not of record at the time of the prior denial and relates to unestablished fact necessary to substantiate the claim. Accordingly, the Board finds that new and material evidence has been submitted and the petition to reopen the claim for service connection for diabetes mellitus, type II, must be granted. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (a). II. Service Connection Legal Principles Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 281 F.3d 1163, 1167 (Fed. Cir. 2004). Veterans who served in Vietnam between January 9, 1962, and May 7, 1975, are presumed to have been exposed to herbicide agents, such as Agent Orange (AO), unless there is affirmative evidence to the contrary. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. §§ 3.307(a)(6)(iii). Certain listed medical conditions-including diabetes mellitus-may be granted service connection on a presumptive basis due to such exposure. 38 C.F.R. § 3.309(e). The availability of presumptive service connection does not, however, preclude a grant of service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); 38 C.F.R. § 3.303 ("The presumptive provisions of the statute and [VA] regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid."). For a veteran to be entitled to the presumption of service connection under 38 C.F.R. § 3.307(a)(1)(6)(iii), he or she must have been present at some point on the landmass or "inland waters" (aka brown waters) of Vietnam. Haas v. Peake, 525 F.3d 1168, 1182-83 (Fed. Cir. 2008). Such inland waterways include "rivers, estuaries, canals and deltas 'inside the country.'" Gray v. McDonald, 27 Vet. App. 313, 321 (2015). The presumption of herbicide exposure is also extended to veterans who served on ships where deck logs reference "anchoring [in] or entering the 'mouth of' the Cua Viet River, Saigon River, Mekong River Delta, Ganh Rai Bay, and the Rung Sat Special Zone." Id. Additionally, VA has established specific procedures for verifying exposure to herbicide agents in Thailand during the Vietnam era. See VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C ("M21-1MR"). VA has determined that there was significant use of herbicide agents on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes, as evidenced in a declassified Vietnam era Department of Defense document titled "Project CHECO Southwest Asia Report: Base Defense in Thailand." Special consideration of herbicide agent exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. This allows for presumptive service connection of the diseases associated with herbicide agent exposure. If a Veteran served on a Thailand airbase 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 the Veteran's MOS, performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts found or direct basis. However, this applies only during the Vietnam era, i.e., from February 26, 1961, through May 7, 1975. Id. Factual Background There is a large amount of evidence in this case, consisting of both lay and medical evidence. The Board notes that it has reviewed the evidence in its entirety, but will not be discussing all of it with specificity. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (the Board is presumed to have considered all evidence presented in the record; it is not required to specifically discuss every piece of evidence). The relevant evidence of record consists of the Veteran's STRs, MPRs, VA and private treatment records, and lay statements by the Veteran and other sources. STRs are silent for any complaints of, treatment for or diagnosis of diabetes mellitus or associated symptomatology. The Veteran's DD-214 reflects that the Veteran was assigned to the 25th infantry, 7th battalion, and 11th artillery unit. His MOS was listed as communications crewman. MPRs further reflect foreign service at the Royal Thai Air Force Base in Korat, Thailand between June 1963 and July 1963. In a March 2007 statement, the Veteran reported service in Thailand, i.e., at Camp Friendship, between June 1963 and August 1963. He further reported performing "fire missions" into Cambodia, Laos, and Vietnam. The Veteran expressed his belief that his service led him developing diabetes "in the early 1970's." Private medical treatment records dated in February 1980 reflect normal blood sugar findings. Treatment records dated in December 1983 indicate a provisional diagnosis of diabetes mellitus, and a record dated in July 1987 reflects a diagnosis of diabetes mellitus, for which the Veteran has been receiving treatment since. The treatment records do not indicate that the Veteran's diabetes is related to the Veteran's military service and/or exposure to AO. Reports of VA examinations (provided for the Veteran's other claims) conducted in November 2008 and July 2010, respectively, document the Veteran's statements regarding his medical history. At that time, the Veteran reported being diagnosed with diabetes in 1978. Several lay statements regarding exposure to AO and service in Vietnam are of record. In an August 2007 statement, the Veteran indicated that he served with "the [Southeast Asia Treaty Organization (SEATO)]" forces in S.E. Asia from June 1963 thru September 1963 . . . based at Camp Friendship, Thailand, but visited many other countries . . . [including] Cambodia, Vietnam, and Laos [and he] spent considerable time in those countries." Similarly, a statement dated in November 2007 noted the living conditions in Southeast Asia from June 1963 to August 1963, e.g., the temperature. In May 2014, the Veteran and his representative testified a hearing before a decision review officer. At that time, the Veteran reported, in pertinent part, service in Thailand, Cambodia, and Vietnam, through the missions carried out by the SEATO forces. The Veteran indicated that his MOS was communications crewman, but that he was actually a "jack of all trades in this particular outfit and [he] did a little bit of everything." The Veteran reported he developed diabetes "in the early 70's," which is now managed by insulin and a restricted diet. On his VA form 9 dated in August 2014, the Veteran indicated that "living in the jungles . . . exposed [him] to herbicides in Thailand, Cambodia, Laos, or Vietnam." As mentioned, in July 2017 the Veteran also testified at a travel board hearing. At that time, the Veteran indicated, in pertinent part, that he was exposed to Agent Orange while serving at Korat, Thailand. Specifically, the Veteran indicated that his responsibilities as a communications crewman required him to "lay[] wire to connect all types of communication equipment to include along the perimeter." He further indicated he performed many additional duties in support of the field artillery battery. The Veteran reported that he was diagnosed with diabetes in June 1971; however, that he had his "first experience" in approximately 1978 when he "fainted at work." He began taking medication for his diabetes at that time. The Veteran also reiterated conducting fire missions in Cambodia, Laos, and Vietnam. Analysis After a thorough review of the record, the Board finds that service connection is not warranted for the Veteran's claimed diabetes mellitus, due to exposure to AO, on a presumptive basis. In making this finding, the Board notes that the Veteran's MPRs reflect service in Thailand between June 1963 and July 1963 as a communications crewman. The records do not, however, reflect the Veteran served in Vietnam or conducted military operations into Vietnam. The Board has considered the various lay statements of record, including his July 2017 hearing statements that he was exposed to herbicide agents in Thailand while laying communications wires around the perimeter of the base. The Veteran is clearly competent to report his own activities. Once evidence is determined to be competent, the Board must determine whether the evidence is also credible. The former, the Court has held, is a legal concept, which is useful in determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Credibility can be generally evaluated by considering interest, bias, or inconsistent statements, the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In this case, the Board finds that the lay statements by the Veteran and others regarding exposure to AO are internally inconsistent and not supported by the other evidence of record. The Board first notes that the veteran served in the Army, and was in Thailand for a short term on his route to Hickam Air Force Base in Hawaii. The Board next notes that it is unlikely that the command at Korat Air Base, which was under the command of the U.S. Air Force, would have need of a service member of another branch of service for routine construction and maintenance matters on base, such as laying communications wire. The Board finds it unlikely the U.S. Air Force had no personnel capable of and available to lay communications wire, and instead had to rely on a servicemember from another branch, namely the Veteran, to accomplish this task. Moreover, the Veteran has made several inconsistent statements concerning his claimed herbicide exposure which generally undermine his credibility. For example, in his August 2014 statement, the Veteran indicated that "living in the jungles . . . exposed [him] to herbicides in Thailand, Cambodia, Laos, or Vietnam." Yet, at the July 2017 hearing, the Veteran indicated that his AO exposure was due to laying communication wires around the perimeter of the base in Korat, Thailand. The internal inconsistencies of the Veteran's claim undermine his credibility as an accurate historian. Moreover, the Veteran has repeatedly indicated that he conducted fire missions into Cambodia, Laos, and Vietnam. Unfortunately, MPRs do not support these statements or the purported timeframe of service, which further undermines the Veteran's credibility. In short, the Board finds that the Veteran was not exposed, either presumptively or actually, to herbicides in service. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for diabetes mellitus, due to AO exposure, on a presumptive basis. Next, the Board finds that service connection is not warranted for the Veteran's claimed diabetes mellitus, due to exposure to AO, on a direct basis. In making this finding, the Board notes that STRs are silent for any complaints of, treatment for or diagnosis of diabetes mellitus or associated symptomatology. The Board further notes that the Veteran was definitively diagnosed with diabetes mellitus on or about July 1987, i.e., more than two decades after service. The Board has considered the Veteran's statements that he believes his diabetes was caused by service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, questions of medical causation falls outside the realm of common knowledge of a lay person. See Jandreau, supra (lay persons not competent to diagnose cancer). In this case, the cause of the Veteran's diabetes mellitus is a matter suited to the realm of medical expertise. As such, to the extent the Veteran is addressing questions of medical causation of his diabetes mellitus, the Board finds his statements are not competent lay evidence. Notwithstanding, the medical evidence of record does not reflect that the Veteran's diabetes is related to the Veteran's military service. Neither the Veteran nor his representative has provided any direct evidence corroborating exposure to AO in service. The Board has also considered the Veteran's prior statements regarding an earlier date of diagnosis, i.e., June 1971. The Veteran is clearly competent to relay information provided to him by his physician, i.e., a diagnosis. However, the Board finds that the Veteran's statements regarding date of his diagnosis are internally inconsistent and not supported by the evidence of record. For instance, treatment records dated in February 1980 reflect normal blood sugar findings, and records dated in December 1983 indicate a provisional diagnosis of diabetes mellitus. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board sympathetically finds that the preponderance of the evidence is against the Veteran's claim of service connection for diabetes mellitus, type II. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim for service connection, that doctrine is not helpful. See 38 U.S.C.A § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Board lastly notes that, inasmuch as the Regional Office reopened the Veteran's claim, the Board's decision on the merits in this case after reopening does not prejudice the Veteran. ORDER As new and material evidence has been received, the claim of entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to an herbicide agent is reopened; to this extent only, the appeal is granted. Entitlement to service connection for diabetes mellitus, type II, is denied. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs