Citation Nr: 1738643 Decision Date: 09/13/17 Archive Date: 09/22/17 DOCKET NO. 15-03 684 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure. 2. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Monrose, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1955 to March 1959 and May 1959 to August 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran sought to reopen the claim in December 2006 and December 2010, but the RO did not reopen the claim and denied the claim on the merits in June 2009 and June 2011, respectively. The Veteran did not appeal the RO's decisions. In January 2012, the Veteran sought to reopen the claim by submitting a lay statement that his exposure to Agent Orange occurred during his active duty in Thailand. The RO did not reopen the claim of service connection for diabetes mellitus, and subsequently denied the claim on the merits in a rating decision dated January 2013. In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). In June 2017, the Veteran testified at a hearing before the undersigned Veteran Law Judge. The hearing transcript has been associated with the claims file. A motion to advance this appeal on the Board's docket has been raised by the Board's Acting Vice Chairman. The undersigned is granting the motion and advancing the appeal on the docket based on advanced age. 38 C.F.R. § 20.900(c) (2016) ("advanced age" is defined as 75 or more years of age). FINDINGS OF FACT 1. By an April 2003 rating decision, the RO denied the Veteran's claim for service connection for diabetes mellitus; he was advised of the RO's decision, and of his appellate rights. The Veteran did not initiate an appeal of the RO's decision within one year; nor was any new and material evidence received within a year. 2. Evidence received since the April 2003 rating decision is new and material as to the issue of service connection for diabetes. 3. During service, the Veteran was stationed at the Korat Royal Thai Air Force Base (RTAFB) in Thailand from January 1973 to January 1974, and his duty required him to be near the perimeter on a regular basis. CONCLUSIONS OF LAW 1. The April 2003 rating decision denying service connection for diabetes mellitus is final. 38 U.S.C.A. § 7105(c) (West 2015); 38 C.F.R. §§ 3.156, 20.1103 (2016). 2. New and material evidence has been received to reopen the Veteran's claim for service connection for diabetes mellitus. 38 U.S.C.A. § 5108 (West 2015); 38 C.F.R. § 3.156 (2016). 3. The criteria for service connection for diabetes mellitus as a result of exposure to herbicides have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2015); 38 C.F.R. § 3.102, 3.303, 3.304, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). Neither the Veteran nor the representative, in this case, has referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015), cert. denied, 137 S. Ct. 33 (2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). New and material evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C.A. § 5108 (West 2015); 38 C.F.R. § 3.156(a) (2016). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a) (2016). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence is new and material. The Veteran filed a claim for service connection for diabetes mellitus in March 2002. The April 2003 rating decision denied his claim because the Veteran's service medical records did not show a diagnosis of diabetes mellitus in service or at discharge and the medical evidence of record did not show that this condition was caused by exposure to Agent Orange while in service. Hearing testimony, documentary evidence, and a written statement received since the April 2003 rating decision contains new and material evidence sufficient to reopen the prior claim. In a written statement dated January 2012, the Veteran stated that he was stationed at the Korat RTAFB in Thailand and worked near the perimeter fence of the base where he was exposed to Agent Orange. The Veteran provided the VA with a copy of a map showing the proximity of his barracks to the base's perimeter. During a videoconference hearing held in June 2017, the Veteran testified that he resided and engaged in recreational activities less than 100 feet from the perimeter. Hr. Tr. pp. 3-4. In addition, he stated that Agent Orange was sprayed at the perimeter of the base. Id. at 3. The Board finds that this new evidence relates to an unestablished fact which may substantiate the claim for service connection for diabetes mellitus (i.e., it tends to show that the Veteran may have been exposed to herbicide agents while stationed in Thailand. Accordingly, new and material evidence has been received to reopen a service connection for diabetes mellitus. See 38 C.F.R. § 3.156(a) (2016). Diabetes mellitus - presumptive service connection The Veteran contends that his diabetes mellitus was caused by exposure to Agent Orange in Thailand. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2015); 38 C.F.R. § 3.303(a) (2016). 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. See 38 C.F.R. § 3.303(d) (2016). The condition type II diabetes mellitus is a "chronic disease[s]" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provision of 38 C.F.R. § 3.303(b) apply to the Veteran's claim. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Generally, 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). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. See 38 U.S.C.A. § 1116 (a) (West 2015); 38 C.F.R. § 3.309(e) (2016). Type II diabetes mellitus is listed as a disease associated with exposure to herbicide agents. Id. The term "herbicide agent" is defined as 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, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307 (a)(6)(i) (2016). VA procedures for verifying exposure to herbicides in Thailand during the Vietnam Era are detailed in the VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (M21-1MR). VA 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 as evidenced in "Project CHECO Southeast Asia Report: Base Defense in Thailand." Special consideration of herbicide 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 exposure. Under M21-1MRIV.ii.2.C.10.q, the VA will concede herbicide exposure at the Korat RTAFB if the Air Force Veteran served as military policemen, security patrol dog handler, member of the security police squadron, or otherwise was near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. However, 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). A review of the Veteran's post-service treatment records reflects his history of treatment for diabetes mellitus. See correspondence from a private physician dated January 2012 (indicating diabetes treatment since 2005). For these reasons, the Board finds that the evidence establishes that the Veteran has a current disability. The Veteran's service personnel records show that he had foreign service in Thailand at the Korat RTAFB from January 1973 to January 1974. Therefore, the Veteran served in Thailand during the Vietnam Era and was stationed at an Air Force base known to have been exposed to herbicides. See M21-1MRIV.ii.2.C.10.q and JSRRC memorandum dated December 2012. That notwithstanding, the Veteran's service in Thailand did not include being an Air Force security policeman, security patrol dog handler, member of the security police squadron, member of a military police unit, or with a military police occupational specialty. Instead, service records showed his military occupation specialties (MOS) included Airborne Aircraft Controller and Orbit Controller Training OJT monitor. As such, the remaining element as to whether the Veteran is entitled to the presumption of herbicide exposure is whether he served on or near the perimeter of Korat RTAFB. The Board finds that the evidence of record is in equipoise as to whether this element has been established. The Veteran has presented sufficient evidence to demonstrate that he served on or near the perimeter of Korat RTAFB. As noted above, the Veteran prepared a written statement wherein he alleged that his primary job as an airborne command and control required him to work on the flight line, which was along the perimeter fence of the base. See Statement in Support of Claim dated January 2012. On a map of the Korat RTAFB, the "hootch" living quarters is approximately 11 meters from the base perimeter and the physical training and recreational area are approximately 28 meters from the base perimeter. The map indicates that "hootch" living quarters had window screens but no glass in a very open setting near the base perimeter. The depictions on the map are similar to the Veteran's hearing testimony in June 2017. He testified that he resided approximately 35 to 40 feet from the base's perimeter. Hr. Tr. pp. 3-4. The Veteran also testified that they engaged in recreational activities 100 feet from the base's perimeter. Id. at 4. The Board finds that the Veteran performed his duties and lived in quarters in close proximity to the air base perimeter. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). There is nothing in the available service records, to include his DD 214, which refutes the Veteran's recollections. Accordingly, the Veteran's service connection claim for diabetes mellitus is warranted. The benefit of the doubt doctrine applies because the preponderance of the competent evidence is favorable. Accordingly, the Veteran's claim for a presumptive service connection for diabetes mellitus is warranted. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for diabetes mellitus is reopened; the appeal is granted. Entitlement to service connection for diabetes mellitus, as due to herbicide exposure, is granted. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs