Citation Nr: 1739996 Decision Date: 09/18/17 Archive Date: 09/29/17 DOCKET NO. 14-32 278 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for diabetes mellitus type II, and if so, whether service connection is warranted. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD I. Umo, Associate Counsel INTRODUCTION The Veteran served active duty in the U.S Air Force from November 1952 to August 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 decision by the Department of Veteran Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDINGS OF FACTS 1. Service connection for diabetes mellitus type II was denied in a January 2005 rating decision, which became final when the Veteran did not timely appeal the decision. 2. Evidence associated with the claims file since the January 2005 rating decision is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim of entitlement to service connection for diabetes mellitus type II. 3. The preponderance of the probative evidence is against a finding that the Veteran's diabetes mellitus type II is related to his active duty service. CONCLUSIONS OF LAW 1. The January 2005 rating decision that denied entitlement to service connection for diabetes mellitus is final. 38 U.S.C. § 7105(c) (West 2014); 38 C.F.R. §§ 20.302(b), 20.1103 (2016). 2. New and material evidence has been received since the RO's January 2005 rating decision that denied a claim for service connection for diabetes mellitus type II; the claim for service connection for diabetes is reopened. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (2016). 3. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify & Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A and 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The duty to notify has been met. See the July 2011 VCAA letter. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances ... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran ...." Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2016), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. VA is not required to obtain a medical opinion for a claimant seeking to reopen a previously and finally disallowed claim prior to a determination that new and material evidence has been received. See Paralyzed Veterans of Am. V. Sec'y of Veterans Affairs, 345 F.3d 1334 (Fed. Circ. 2003). Thus, any question as to the adequacy of a VA examination is moot prior to reopening of the claim. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The record reflects that all available records pertinent to the claim have been obtained. The Veteran has not identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claims. II. Decision New and Material As a brief background, the Veteran filed to reopen his claim for diabetes in January 2011 VA 21-526b. The RO denied the claim in an August 2011 rating decision, which the Veteran appealed in July 2012. The RO issued an statement of the case in September 2014 and the Veteran submitted a substantive appeal in September 2014. Generally, a claim that has been denied in a final unappealed RO decision may not be reopened and readjudicated. 38 U.S.C. § 7105(c) (West 2014). An exception to that rule is that if new and material evidence is presented or secured with respect to a claim, which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108 (West 2014). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). The threshold for determining whether new and material evidence has been submitted is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). However, evidence that is merely cumulative of other evidence in the record cannot be new and material even if that had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). At the time of the January 2005 rating decision, which denied service connection for diabetes mellitus, the evidence of record consisted of the Veteran's private medical records, VA treatment records, and VA examinations and statements from the Veteran. The RO denied the Veteran's claim as the evidence did not show that he was entitled to service connection on a presumptive basis due to exposure to herbicides and his diabetes mellitus was not incurred during active duty service. The Veteran was notified of the denial in a February 2005 letter, including his appeal rights, and he did not appeal the decision within a year of the rating decision. Thus, it is final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The Board has reviewed the evidence of record and finds that the Veteran has submitted new and material evidence necessary to reopen the claim of service connection for diabetes. Since the January 2005 rating decision, there has been pertinent evidence associated with the record to substantiate the Veteran's claim of exposure to Agent Orange. The Veteran submitted a statement in support of his claim detailing that he served in Thailand and at Eglin Air Force Base (AFB). See June 2011 Statement in Support. The Veteran's personnel record supports the fact that he served in Thailand and at Eglin AFB as an aircraft maintenance supervisor. Likewise, he provided more information regarding his service at Eglin AFB and Thailand, where the Veteran claims he was exposed to Agent Orange (AO), a herbicide. See July 2012 Notice of Disagreement and VA Form 9 in September 2014. Moreover, in February 2015 and 2017, the Veteran submitted evidence concerning the use of Agent Orange around Eglin AFB. Because such a finding of potential exposure to AO was one of the elements not present in January 2005, this evidence is sufficient to reopen the previously denied claim. The foregoing evidence is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim. Therefore, this evidence is new and material, and reopening of the claim is in order. Shade v. Shinseki, 24 Vet. App. 110 (2010). Service Connection Service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 1131; 38 C.F.R. §§ 3.303, 3.304. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see Hickson v. West, 12 Vet. App. 247, 253 (1999). A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain designated herbicide agents during such service, absent affirmative evidence to the contrary. Service in the Republic of Vietnam includes service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116 (f); 38 C.F.R. § 3.307(a)(6)(iii). Service connection based on exposure to the designated herbicide agents will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. The diseases are associated with herbicide exposure for purposes of the presumption include diabetes mellitus type II. 38 U.S.C.A. § 1116 (a)(2); 38 C.F.R. § 3.309 . In this case, the evidence does not show that the Veteran served at any time in the Republic of Vietnam; rather, he claims only that he was exposed to herbicides, in part, while on duty in Thailand. 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. Special consideration of herbicide exposure on a facts-found basis is 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. See M21-1, Part IV, Subpart ii, Chapter 1, Section H, para. 5(b). The majority of troops in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases 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 occupational specialty, performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts found or direct basis. Id. Even if a veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide exposure, VA must also consider the claim on a direct service-connection basis. When a disease is first diagnosed after service but not within the applicable presumptive period, service connection may nonetheless be established by evidence demonstrating that the disease was in fact incurred in service. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of [his] current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board must assess the credibility and weight of evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Federal Circuit recognizes that the Board has an inherent fact-finding ability. Jefferson v. Principi, 271 F.3d 1072, 1076 (Fed. Cir. 2001); see also 38 U.S.C.A. § 7104 (a). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). The Board notes that when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The record shows that the Veteran has been diagnosed with diabetes mellitus. Therefore, he satisfies the first element of a service connection claim - a current disability. However, the Veteran's service treatment records do not show a diagnosis of diabetes mellitus. Additionally, the record did not show that the Veteran complained of or showed symptoms of diabetes during his time in service, or within a year of discharge from service. In fact, the outpatient treatment records from Biloxi VA first mentions the diagnosis of diabetes mellitus in March 2005. This diagnosis is more than twenty-five years after the Veteran served in Thailand or Eglin. Moreover, the Veteran has not asserted that his diabetes manifested during service or within a year of discharge from service. As the evidence fails to show that his diabetes had its onset in service, or manifested to a compensable degree within one year of discharge from service, direct service connection is denied as is service connection based on the presence of a chronic disease under 38 C.F.R. § 3.309(a). Similarly, the Board finds that the Veteran is not entitled to service connection for diabetes mellitus based on a presumption for AO exposure. The Board took into account the Veteran's service in Thailand and Eglin AFB, where there is documented evidence of AO usage. However, based on VA memorandum concerning the use of herbicide agents in Thailand, the Veteran is not entitled to the presumption based on facts found. See April 2017 VA Memo. Specifically, the DoD indicated that only limited testing of tactical herbicides was conducted in Thailand from April to September 1964, with a specific location identified as the Pranburi Military Reservation near Pranburi, Thailand. This location was not near any U.S. military installation or Royal Thai Air Force Base. The Veteran's base in Thailand was not located near Pranburi and would not have been with the area of effect for AO. Likewise, the Veteran's claim based on working on aircraft that flew missions over Vietnam does not entitle him to the presumption. Specifically, there is no presumption to secondary exposure based on being near or working on aircraft that flew over Vietnam or handling equipment used in Vietnam. Furthermore, the veteran worked on aircraft that generally flew far above the aircraft that sprayed tactical herbicides over Vietnam. Even more, the Veteran's personnel records do not indicate that he worked with the crew that handled and researched the usage of AO. The Veteran has not submitted any competent evidence which supports his allegation that exposure to these aircraft could cause diabetes mellitus. The Veteran is not competent to make promulgate such an opinion. To the extent it has been argued that the wind must be taken into account when determining if the Veteran was exposed to herbicides, the Board finds this argument is not probative. The Veteran has not submitted any competent evidence which indicates that wind direction can cause exposure to herbicides. This is beyond the Veteran's competency to provide evidence on. In a June 2011 statement, the Veteran alleged that he was assigned to Korat Air Force Base on two different occasions. He reported he worked on the flight line and the adjoining perimeters were sprayed with Agent Orange. On the second assignment to Korat, he reported he helped close the base down. Service personnel records reveal the Veteran was assigned to Korat Royal Thai Air Force Base. His duties were performed on the flight line. His MOS does not indicate any reason why the Veteran would be exposed to the perimeter of the air base. He was not involved with base security as a security policeman, security patrol dog handler or member of a security police squadron. The Veteran wrote in a June 2011 statement that, during both tours of duty in Thailand, he worked on the flight line. There was no suggestion that he served near the air base perimeter. In regards to his service at Eglin AFB, the evidence of record is against a finding that the Veteran was exposed to AO. The Veteran rightfully asserts that AO was used at Eglin AFB for testing purposes. However, AO was tested in a rural area in the southeastern section of the Eglin reservation, about three miles north of Choctawatchee Bay and eight miles east of Niceville, Florida. The test grid is located about 10,930 feet from the nearest base boundary. The Board's review of the Veteran's military occupation specialty does not show that he was involved in the management and/or testing of herbicides. Furthermore, a review of the Veteran's performance evaluation does not indicate involvement with the C-123 aircraft primarily used in the spraying of AO. There was also no evidence that the Veteran's routine duties placed him in the vicinity of the 1.25 mile test grid. The Veteran performed his duties on the flight line. The Veteran has not submitted any competent evidence linking his currently existing diabetes mellitus to active duty service or exposure to herbicides on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Based on the foregoing, the preponderance of the evidence is against finding that the Veteran's diabetes is related to service, or presumed to be based on herbicide exposure. 38 C.F.R. §§ 3.303, 3.307, 3.309. For these reasons, the benefit-of-doubt standard of proof does not apply, and service connection for diabetes mellitus must be denied. See 38 U.S.C. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER New and material evidence having been received, the claim of entitlement to service connection for diabetes mellitus has been reopened. The claim is granted to that extent only. Service connection for diabetes mellitus is not warranted. The claim is denied. ____________________________________________ G. A. Wasik Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs