Citation Nr: 1754562 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 16-45 386 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicides. 2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for peripheral neuropathy of the left and right upper extremities, to include as secondary to diabetes mellitus, type II, or as due to exposure to herbicides. 3. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for peripheral neuropathy of the left and right lower extremities, to include as secondary to diabetes mellitus, type II, or as due to exposure to herbicides. 4. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for proliferative diabetic retinopathy, to include as secondary to diabetes mellitus, type II, or as due to exposure to herbicides. 5. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for ischemic heart disease, to include as due to exposure to herbicides. 6. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for skin cancer, also claimed as melanoma, to include as due to exposure to herbicides. 7. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for bilateral hearing loss. 8. Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicides. 9. Entitlement to service connection for peripheral neuropathy of the left and right upper extremities, to include as secondary to diabetes mellitus, type II, or as due to exposure to herbicides. 10. Entitlement to service connection for peripheral neuropathy of the left and right lower extremities, to include as secondary to diabetes mellitus, type II, or as due to exposure to herbicides. 11. Entitlement to service connection for proliferative diabetic retinopathy, to include as secondary to diabetes mellitus, type II, or as due to exposure to herbicides. 12. Entitlement to service connection for ischemic heart disease, to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. A notice of disagreement was received in August 2015, a statement of the case was issued in August 2016, and a substantive appeal was received in September 2016. The Board notes that the April 2015 rating decision found that new and material evidence has been received to reopen the claims adjudicated herein. However, the Board must consider the new and material evidence question independently from the RO's determination, as it goes to the Board's jurisdiction to reach the underlying service connection claims and adjudicate the claims de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). FINDINGS OF FACT 1. The above claims were most recently denied in an April 2013 rating decision; that decision was not appealed and is final. 2. When considered by itself or in connection with the evidence previously assembled, the evidence received since the April 2013 rating decision relates to an unestablished fact necessary to substantiate the claims and raises a reasonable possibility of substantiating the claims of entitlement to service connection for diabetes mellitus, type II, peripheral neuropathy of the left and right upper and lower extremities, proliferative diabetic retinopathy, and ischemic heart disease. 3. When considered by itself or in connection with the evidence previously assembled, the appellant has not submitted evidence that was not previously submitted, relates to an unestablished fact necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims of entitlement to service connection for skin cancer and bilateral hearing loss. 4. The Veteran has verified service in the Republic of Vietnam during the Vietnam Era and is therefore presumptively considered to have been exposed to herbicides during service. 5. The Veteran's diabetes mellitus, type II, is a disease that is presumptively associated with herbicide exposure. 6. The Veteran's peripheral neuropathy of the left and right upper extremities is at least as likely as not related to his diabetes mellitus. 7. The Veteran's peripheral neuropathy of the left and right lower extremities is at least as likely as not related to his diabetes mellitus. 8. The Veteran's proliferative diabetic retinopathy is at least as likely as not related to his diabetes mellitus. 9. The Veteran's ischemic heart disease is presumptively associated with herbicide exposure. CONCLUSIONS OF LAW 1. New and material evidence with respect to the claims of entitlement to service connection for diabetes mellitus, type II, peripheral neuropathy of the left and right upper and lower extremities, proliferative diabetic retinopathy, and ischemic heart disease has been added to the record since the April 2013 rating decision; thus, those claims are reopened. 38 U.S.C. §§ 5108, 7105 (West 2012); 38 C.F.R. §§ 3.156, 20.1103 (2017). 2. New and material evidence with respect to the claims of entitlement to service connection for skin cancer and bilateral hearing loss has not been added to the record since the April 2013 rating decision; thus, those claims are not reopened. 38 U.S.C. §§ 5108, 7105 (West 2012); 38 C.F.R. §§ 3.156, 20.1103 (2017). 3. The criteria for establishing entitlement to service connection for diabetes mellitus, type II, are met. 38 U.S.C. §§ 1101, 1110, 1116, 1137, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 4. Peripheral neuropathy of the left and right upper extremities was incurred secondary to service-connected diabetes mellitus, type II. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a)-(b) (2017). 5. Peripheral neuropathy of the left and right lower extremities was incurred secondary to service-connected diabetes mellitus, type II. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a)-(b) (2017). 6. Proliferative diabetic retinopathy was incurred secondary to service-connected diabetes mellitus, type II. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a)-(b) (2017). 7. The criteria for establishing entitlement to service connection for diabetes mellitus, type II, are met. 38 U.S.C. §§ 1101, 1110, 1116, 1137, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duty to notify was satisfied by a letter that was sent to the Veteran in February 2015. See 38 U.S.C. §§ 5102, 5103, 5103A (West 2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). All relevant, obtainable evidence has been associated with the claims file to fulfill VA's duty to assist. 38 U.S.C. § 5103A. I. New and Material Evidence Rating actions from which an appeal is not perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200 (2017). A final decision cannot be reopened unless new and material evidence is presented or secured with respect to that claim. See 38 U.S.C. § 5108; see also Knightly v. Brown, 6 Vet. App. 200 (1994). 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) (2017). The question of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court has held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the evidence is presumed credible unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran contends that all of the above disabilities except for bilateral hearing loss developed secondary to in-service herbicide exposure. He further contends that the peripheral neuropathy of the left and right upper and lower extremities claims and the claim of entitlement to service connection for proliferative diabetic retinopathy were incurred secondary to diabetes mellitus. At the time of the April 2013 rating decision, the Veteran's assertions of in-service herbicide exposure had not been verified. In relevant part for the new and material evidence analysis, VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand during the period from February 28, 1961 through May 7, 1975, for the purpose of eliminating 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.' VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (M21-1MR); Compensation and Pension Bulletin, May 2010. 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. Id. In the case at hand, the Veteran submitted photographs that he asserts demonstrate his presence near the perimeter of the Royal Thai Air Force Base (RTAFB) in Ubon, Thailand, from March 1969 to March 1970. These particular photos were not of record at the time of the April 2013 decision. The evidence is presumed credible for purposes of determining whether new and material evidence has been submitted. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Therefore, they are material to demonstrating his in-service herbicide exposure. A. Reopened Claims The Board finds that this evidence constitutes new and material evidence that raises a reasonable possibility of substantiating the claims of entitlement to service connection for diabetes mellitus, type II; peripheral neuropathy of the left and right upper and lower extremities; proliferative diabetic retinopathy; and ischemic heart disease. Diabetes mellitus type II and ischemic heart disease are considered to be presumptive diseases for purposes of establishing entitlement to service connection based on herbicide exposure. 38 C.F.R. § 3.309(e). The Veteran has claimed, and evidence indicates, that his peripheral neuropathy of the left and right upper and lower extremities and his proliferative diabetic retinopathy were incurred secondary to his diabetes. These claims are therefore considered to be reopened. B. Claims that are not Reopened i. Skin Cancer The Board finds, however, that this evidence does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for skin cancer, as the Veteran's type of cancer is not considered to be a disability that is presumptively entitled to service connection based on herbicide exposure. Nor does the evidence suggest that the Veteran's skin cancer was incurred secondary to or aggravated by a disability that is presumptively entitled to service connection. Furthermore, the medical evidence that has been submitted since the April 2013 rating decision is not material to establishing a direct link between his service (to include his herbicide exposure) and his subsequent skin cancer of the left shoulder and the top of the head. Therefore, new and material evidence has not been received with respect to the claim of entitlement to service connection for skin cancer, and that claim is not reopened. ii. Bilateral Hearing Loss The Veteran has also claimed entitlement to service connection for bilateral hearing loss. At the time of the April 2013 denial, a May 2011 VA audiology consultation record established that the Veteran has a current hearing loss disability of the left and the right ears pursuant to VA regulations. See 38 C.F.R. § 3.385. This record notes that the Veteran reported in-service noise exposure from engine noise from aircraft taking off on the runway. He was provided with hearing protection, but some of the engine noise was still very loud depending on the type of engine. He also reported that, outside of the military, he was "exposed to machine noise while working in a factory / RCA." Also of record at the time of the April 2013 rating decision was a March 2012 VA hearing loss and tinnitus examination report. Based on review of the record and interview and examination of the Veteran, the VA examiner opined that the Veteran's hearing loss is not at least as likely as not caused by or a result of an event in service. The examiner's rationale was that the Veteran's hearing was normal for both ears in the 500 through 6000 Hertz frequencies upon separation in 1971. The examiner converted the 1967 hearing testing (which was completed in ASA calibration standard) to ISO calibration standard and compared those test results to the 1971 separation test results. Based on the above, the examiner determined that there was no significant threshold shift in hearing for either ear. The Board has reviewed the medical evidence that has been submitted since the April 2013 rating decision and finds no evidence of a link between in-service noise exposure and current hearing loss. The Board therefore finds that new and material evidence has not been received with respect to the claim of entitlement to service connection for bilateral hearing loss, and that claim is not reopened. II. Service Connection Having reopened the claims of entitlement to service connection for diabetes mellitus, type II, peripheral neuropathy of the left and right upper and lower extremities, proliferative diabetic retinopathy, and ischemic heart disease, the Board will now address these claims on their merits. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, or nexus, between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, or results from, another disease or injury for which service connection has been granted shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Applicable regulations also provide that a Veteran who served on active duty in Vietnam during the Vietnam era (from January 9, 1962, through May 7, 1975) is presumed to have been exposed to Agent Orange or similar herbicide. 38 C.F.R. § 3.307(a)(1)(6)(iii). The Veteran in the case at hand contends that, while he was stationed at the Ubon RTAFB, his duties took him to Vietnam. (See May 2011 personal statement.) His service in Vietnam is corroborated by a December 1970 performance evaluation that notes the Veteran "was a volunteer blood donor prior to his service in Vietnam," and that he "was recently awarded the Air Force Commendation Medal for achievements performed while serving in Vietnam." Therefore, the Board finds that the Veteran is presumed to have been exposed to herbicides during his military service. Regulations issued pursuant to 38 U.S.C.A. § 1116 stipulate the diseases for which service connection may be presumed due to an association with exposure to herbicide agents. Diabetes mellitus type II and ischemic heart disease are considered to be presumptive diseases for these purposes. 38 C.F.R. § 3.309(e). The Veteran has been diagnosed with diabetes mellitus, type II, (see, e.g., February 2012 VA diabetes mellitus examination report) and with ischemic heart disease (see, e.g., February 2012 VA ischemic heart disease examination report). Given his presumed herbicide exposure, and his symptoms that suggest the diseases have manifested to a compensable degree, service connection for diabetes mellitus, type II, and ischemic heart disease is presumed. Therefore, entitlement to service connection for diabetes mellitus, type II, and ischemic heart disease is warranted. The Veteran's peripheral neuropathy of the left and right upper extremities, peripheral neuropathy of the left and right lower extremities, and proliferative diabetic retinopathy have been established as secondary to the service-connected diabetes mellitus, type II. (See, e.g., February 2012 VA diabetes mellitus examination report and March 2012 VA eye conditions examination report.) Service connection for these disabilities is thus established on a secondary basis. Therefore, entitlement to service connection for peripheral neuropathy of the left and right upper extremities, peripheral neuropathy of the left and right lower extremities, and proliferative diabetic retinopathy is warranted. (CONTINUED ON NEXT PAGE) ORDER New and material evidence having been received, the claim of entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicides, is reopened. New and material evidence having been received, the claim of entitlement to service connection for peripheral neuropathy of the left and right upper extremities, to include as secondary to diabetes mellitus, type II, or as due to exposure to herbicides, is reopened. New and material evidence having been received, the claim of entitlement to service connection for peripheral neuropathy of the left and right lower extremities, to include as secondary to diabetes mellitus, type II, or as due to exposure to herbicides, is reopened. New and material evidence having been received, the claim of entitlement to service connection for proliferative diabetic retinopathy, to include as secondary to diabetes mellitus, type II, or as due to exposure to herbicides, is reopened. New and material evidence having been received, the claim of entitlement to service connection for ischemic heart disease, to include as due to exposure to herbicides, is reopened. New and material evidence not having been received, the claim of entitlement to service connection for skin cancer, also claimed as melanoma, to include as due to exposure to herbicides, is not reopened; the appeal is denied. New and material evidence not having been received, the claim of entitlement to service connection for bilateral hearing loss is not reopened; the appeal is denied. Entitlement to service connection for diabetes mellitus, type II as due to exposure to herbicides is granted. Entitlement to service connection for peripheral neuropathy of the left and right upper extremities as secondary to diabetes mellitus, type II is granted. Entitlement to service connection for peripheral neuropathy of the left and right lower extremities as secondary to diabetes mellitus, type II is granted. Entitlement to service connection for proliferative diabetic retinopathy as secondary to diabetes mellitus, type II is granted. Entitlement to service connection for ischemic heart disease as due to exposure to herbicides is granted. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs