Citation Nr: 1753969	
Decision Date: 11/27/17    Archive Date: 12/07/17

DOCKET NO.  14-07 855	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus.

2. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure.

3. Entitlement to service connection for bilateral diabetic eye problem, to include on a secondary basis.

4. Entitlement to service connection for right lower extremity neuropathy associated with diabetes mellitus, to include on a secondary basis.

5. Entitlement to service connection for left lower extremity neuropathy associated with diabetes mellitus, to include on a secondary basis.




REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. D'Allaird, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1961 to August 1981.

These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

The Veteran testified at a February 2017 Travel Board hearing before the undersigned Veterans Law Judge. A transcript is of record.

The issues of service connection for a bilateral diabetic eye problem, service connection for bilateral hearing loss, service connection for right lower extremity neuropathy associated with diabetes mellitus, and left lower extremity neuropathy associated with diabetes mellitus are being remanded to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action on his part is required.


FINDINGS OF FACT

1. By an October 2007 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. Additional evidence received since the RO's October 2007 decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for diabetes mellitus, and raises a reasonable possibility of substantiating the claim.

3.  The Veteran's in-service duties during the Vietnam Era required him to be on or near the perimeter of the U-Tapao Royal Thai Air Force base in Thailand.

4.  The Veteran's diabetes mellitus may be presumed to have been incurred during service, based on facts-found in-service herbicide agent exposure.  


CONCLUSIONS OF LAW

1. The October 2007 rating decision denying service connection for diabetes mellitus is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017)

2. New and material evidence has been received to reopen the Veteran's claim for service connection for diabetes mellitus. 38 U.S.C. §§ 1110, 1131, 5108 (2012); 38 C.F.R. §§ 3.303, 3.156 (2017).

3.  On a facts-found basis, in-service herbicide exposure has been established.  38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 

4.  Service connection for diabetes mellitus is warranted.  38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e).





REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159.  Any error in notice or assistance is harmless given the favorable determination in this case.

New and Material Evidence 

For claims to reopen filed on or after August 29, 2001-such as the Veteran's-evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is 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 determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992).  Whether newly submitted evidence raises a "reasonable possibility of substantiating the claim" is part of what constitutes new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. If the new evidence would raise a reasonable possibility of substantiating the claim when considered with the old evidence, it triggers the Secretary's duty to assist by providing a medical opinion.  

In the present case, the RO, by a decision entered in October 2007, denied the Veteran's claim for service connection for diabetes mellitus because there was a lack of a nexus between the Veteran's disability and his service. The RO notified the Veteran of its decision, and of his appellate rights, but he did not initiate an appeal of the RO's decision within one year. Nor was any new and material evidence received within a year. 38 C.F.R. § 3.156(b). As a result, the RO's decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).

Here, the evidence received since the time of the RO's October 2007 rating decision includes the Veteran's testimony during the February 2017 hearing and the May 2012 statement of his fellow service member describing their exposure to herbicide spray while serving in Thailand. This evidence was not before adjudicators when the Veteran's claim was last denied in October 2007, and it is not cumulative or redundant of the evidence of record at the time of that decision. It also relates to an unestablished fact necessary to substantiate the claim for service connection for diabetes mellitus, and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened.


Service Connection for Diabetes Mellitus

Legal Criteria

Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. To substantiate a claim of service connection there must be evidence of: (1) a present disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 

Certain diseases, including diabetes mellitus, associated with exposure to herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). 

The Veteran has stated that he was exposed to herbicide agents while stationed in Thailand. VA procedures for verifying exposure to herbicide agents 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 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 Southeast Asia Report: Base Defense in Thailand" (Project CHECO Report). 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. 

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 MOS (military occupational specialty), 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, from February 28, 1961, to May 7, 1975. See M21-1MR, Part IV, Subpart ii, Chapter 1, Section H.5.b.

Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied. If the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Factual Background

VA treatment records dated in September 2007 reflect a diagnosis of diabetes mellitus, satisfying the first element of service connection, a current disability. 

The Veteran's service records reflect he served in Thailand in U-Tapao during November 1971 to November 1972. A November 1972 performance report reflects the Veteran worked as a flightline supervisor. 

During the 2017 Board hearing, the Veteran testified that while working on the flight line, planes would land and have a substance dripping off them which would blow on to the service members working. He further testified that he had to take a shower with hot water and soap afterward and that he would be given a new uniform because the substance would not wash out. He also testified that the same substance would be sprayed around the perimeter and he also worked as a controller and would drive a truck around the perimeter, further exposing himself to herbicide agents. The Veteran also testified that his barracks were located within less than 75 yards from the base perimeter.

A May 2012 statement submitted by the Veteran's fellow service member, G.B., stated that they had served together while in Thailand. G.B. further stated that he could personally attest that Agent Orange was stored in the supply depot on base for shipment to other bases, and it was used around the perimeter of the base regularly.

The Veteran also submitted a map of the base in Thailand showing that his barracks were located very near to the perimeter. 

Analysis

The evidence of record clearly establishes that the Veteran had service at one of the designated Thailand military bases. He also served on active duty for a period of the Vietnam era during which VA has acknowledged that herbicide agents were used near those air base perimeters in Thailand. The Board finds the statements of the Veteran and G.B. about herbicide agent exposure while on base to be competent and credible. 

In light of the above evidence, the Board finds that the Veteran's duties at the U-Tapao Royal Thai Air Force base in Thailand exposed him to herbicide agents. 

Accordingly, service connection for diabetes mellitus is warranted. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e).


ORDER

New and material evidence has been received and the previously denied claim of entitlement to service connection for diabetes mellitus is reopened.

Service connection for diabetes mellitus is granted.


REMAND

Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete and accurate record upon which to decide the Veteran's claim so that every possible consideration is afforded.

The Veteran has not been afforded a VA examination for his claimed bilateral eye problem and right and left lower extremity neuropathy. VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low for purposes of requesting an examination. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. The Veteran's reports of a persistence of symptoms since service can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83. 

In this case, the Veteran's VA treatment records dated in October 2016 note that the Veteran reported when his blood sugar spikes, his vision becomes blurred. Furthermore, VA treatment records dated in April 1998 reflect the Veteran reported leg cramps. The Veteran has stated that these conditions are related to his diabetes mellitus.  Given that the Veteran is now service connected for diabetes mellitus [as discussed earlier in this decision], he may be entitled to disability compensation for the above conditions based on secondary service connection. 

Therefore, in accordance with McLendon, the Board must remand the claim to provide the Veteran with a VA examination to determine the nature and cause of the Veteran's bilateral eye problem and right and left lower extremity neuropathy. Given that the Veteran has shown signs or symptoms of such conditions, and he is service-connected for diabetes mellitus, the Board finds the threshold requirements discussed in McLendon are met, warranting an examination in accordance with the duty to assist.

Accordingly, the case is REMANDED for the following actions:

1. Schedule the Veteran for appropriate VA examination(s) to determine whether he has (1) a current bilateral eye condition, and (2) right and left lower extremity neuropathy, and if so, the nature and cause of each of these conditions. The entire claims file must be made available to the examiner(s).

The examiners must first determine whether any current bilateral eye disability and right and left lower extremity neuropathy are present.

THEN, if the examiner determines the Veteran has a current disability, the examiner is asked to provide an opinion addressing the following questions:

a. It is at least as likely as not (50 percent or greater probability) that bilateral eye disability was either caused or aggravated by his service-connected diabetes mellitus?  (aggravation means the disability increased in severity beyond its natural progression)

b. It is at least as likely as not (50 percent or greater probability) that right OR left (OR both) lower extremity neuropathy was either caused or aggravated by his service-connected diabetes mellitus?  (aggravation means the disability increased in severity beyond its natural progression)

The examiner must describe all findings in detail and provide a detailed explanation (rationale) for all conclusions and opinions expressed.  If the examiner cannot provide the requested opinion without resorting to mere speculation, he or she must state this and specifically explain why an opinion cannot be provided without resorting to speculation.

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2. After completing the above actions and any other development as may be indicated, the AOJ must readjudicate the Veteran's claim on appeal in light of all the evidence of record. If the benefits on appeal remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The Veteran has the right to submit additional evidence and argument on the remanded matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). As a remand, this matter must be handled expeditiously. 38 U.S.C. §§ 5109B, 7112 (2012).





_________________________________________________
VICTORIA MOSHIASHWILI
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs