Citation Nr: 1753356 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 13-32 958 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Whether new and material evidence has been submitted to warrant reopening the claim of service connection for diabetes mellitus type II with bilateral lower extremity peripheral neuropathy, to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Miller, Associate Counsel INTRODUCTION The Veteran served on active duty in the Navy from June 1963 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In October 2013, the Veteran requested a Board hearing at the local VA office. In December 2015, the Veteran's wife notified the board that the Veteran was in a VA rehabilitation center and the Veteran requested a live videoconference. The Veteran received notification that the hearing was scheduled for October 25, 2016. The Veteran later notified VA that he would be unable to attend his Board hearing due to the severity of his medical conditions. A new hearing was not requested at that time. In April 2017, the Veteran's wife submitted a letter stating the Veteran currently resides in a nursing home facility and is unable to attend a hearing. Therefore, the hearing request is considered withdrawn. FINDINGS OF FACT 1. In March 2009, the RO denied the Veteran's claim of entitlement to service connection for diabetes mellitus and notified the Veteran of its decision. The Veteran did not file a notice of disagreement (NOD) to appeal the March 2009 rating decision, and it became final. 2. Evidence received since the March 2009 rating decision does not raise a reasonable possibility of substantiating the Veteran's claim of service connection for diabetes. CONCLUSION OF LAW New and material evidence has not been received to reopen the claim for service connection for diabetes secondary to herbicide exposure. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 to notify and assist. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. § 3.102, 3.159, 3.326(a). A February 2012 letter notified the Veteran of the evidence required to reopen his claim of service connection for diabetes. The duty to notify is satisfied. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159(b). VA's duty to assist includes helping claimants to obtain service treatment records and other pertinent records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment and personnel records, along with VA and private medical records. The duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159(c). In cases involving a petition to reopen a previously denied claim, the duty to assist does not require a medical examination or opinion unless new and material evidence has been secured with respect to that claim. 38 C.F.R. 3.159(c)(4)(iii). Because new and material evidence has not been submitted to reopen the issue of service connection for diabetes, a VA examination is not required. VA has satisfied its duties to notify and assist and the Board may proceed with appellate review. New and Material Evidence A finally adjudicated claim may be reopened if the claimant submits new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. 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). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase "raise a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently false or untrue or, if the evidence is in the form of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Generally, establishing service connection requires (1) evidence of a current disability; (2) medical, or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where a veteran served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including diabetes, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Along with the occurrence of an injury or disability during service, there must also 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), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, a veteran who, during active military 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 to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. §§ 1116; 38 C.F.R. § 3.307. For the purposes of presumptive herbicide exposure, service in Vietnam requires a presence on the ground or in the inland waterways of the country; service on deep-water offshore vessels is insufficient to trigger the presumption. 38 C.F.R. § 3.307(a)(6)(iii); see also Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). In support of his claim, the Veteran submitted medical records and a statement dated July 2008. According to the Veteran, he served aboard the U.S.S. Leonard F. Mason (DD-852), which he reported was assigned to harbor patrol in Vietnam. The Veteran also submitted a 2005 rating decision from the case file of another veteran, E.D., who served on the same ship around the same time as the Veteran in Vietnam. The RO in E.D.'s case granted service connection for diabetes mellitus secondary to herbicide exposure, finding that E.D. was exposed to herbicides because U.S.S. Leonard F. Mason (DD-852) was assigned to harbor duty at Da Nang, South Vietnam. In March 2009, the RO denied the Veteran's claim of entitlement to service connection for diabetes because treatment records fail to show a diagnosis of diabetes during service or within one year of separation from service. Private treatment records from August 1983 indicate the Veteran had no history of diabetes. The earliest diagnosis of diabetes within the claims file is from a June 1991 treatment record, which is more than 20 years after the Veteran's active duty. The RO also denied presumptive service connection due to herbicide exposure. The National Personnel Records Center (NPRC) documented that the Veteran served on board the U.S.S. Leonard F. Mason (DD-852), which was in the official waters of the Republic of Vietnam from August 6, 1964 to April 4, 1965. However, there was no evidence that the Veteran was physically present within the land borders, including the inland waters, of Vietnam during service. The Veteran did not file a NOD to appeal the March 2009 rating decision and it became final. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1103. In August 2012, the RO denied reopening for the Veteran's claim of service connection for diabetes. The RO determined there was no new and material evidence showing that the Veteran's current diabetes occurred in or was caused by military service. The Board finds that reopening is not warranted. See Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). In the August 2013 Statement of the Case, the RO further explained that VA's list of Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents shows that U.S.S. Leonard F. Mason (DD-852) was in Vung Ganh Rai Bay channels in August 1969, years after the Veteran served aboard in 1964. Additionally, there is no probative evidence that the ship was in Da Nang Harbor during 1964. Since the August 2012 reopening denial, the Veteran reiterated in his NOD and in his appeal request to the Board that he was assigned to harbor duty at Da Nang, South Vietnam and therefore was exposed to herbicides. Otherwise, the Veteran has not submitted any new and material evidence to support his claim, and has only resubmitted documents that were previously in the claims file. In regards to the rating decision referring to E.D., a rating decision is not precedential and the Board is not bound to follow the RO's findings in E.D.'s case. The Board has not found evidence showing the U.S.S. Leonard F. Mason was present in Vietnam's inland waterways during the time the Veteran served on the vessel. (CONTINUED ON NEXT PAGE) ORDER The petition to reopen the claim of service connection for diabetes is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs