Citation Nr: 1759045 Decision Date: 12/20/17 Archive Date: 12/28/17 DOCKET NO. 14-29 478 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUES 1. Whether new and material evidence to reopen a claim for service connection claim for type II diabetes mellitus has been received. 2. Entitlement to service connection for type II diabetes mellitus, claimed as due to herbicide exposure. REPRESENTATION Appellant represented by: Catholic War Veterans of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant's representative ATTORNEY FOR THE BOARD N. Laroche, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Air Force from October 1952 to October 1972. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2009 rating decision in which the RO reopened a previously denied claim for service connection for type II diabetes mellitus but denied the claim on its merits. In February 2010, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in July 2014 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in August 2014. that the Board notes that,, regardless of the RO's actions, the Board has a legal duty under 38 U.S.C.A. § 5108 and 7104 to address the question of whether new and material evidence has been received to reopen a claim for service connection. That matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). The Board notes that the AOJ reopened the claim in a September 2009 rating decision. However, as the Board must first decide whether new and material evidence to reopen the claim has been received-and, given the favorable disposition of the request to reopen-the Board has characterized the appeal as now encompassing both matters set forth on the title page. As for the matter of representation, the Board points out that the Veteran was previously represented by State of California, Department of Veterans Affairs, as reflected by an October 2007 VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative. Subsequently, the Veteran appointed Catholic War Veterans of the U.S.A. as his representative, as reflected by a February 2012 VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative. In July 2017, the Veteran's representative presented testimony on the Veteran's behalf during a hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is of record. At the time of the hearing, the undersigned advanced this appeal on the Board's docket, pursuant to 38 U.S.C.. § 7107(a)(2) (2012) and 38 C.F.R. § 20.900(c) (2017). ). While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Legacy Content Manager (Virtual VA) claims processing systems. All records have been reviewed. The Board's decision addressing the request to reopen the claim for service connection for diabetes mellitus, type II, is set forth below. The de novo claim for service connection for that disability is addressed in the remand following the order; this matter is being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the matter herein decided have been accomplished. 2. In a February 2005 rating decision, the RO denied service connection for type II diabetes mellitus; although notified of the denial in a February 2005 letter, the Veteran did not initiate an appeal, and no pertinent exception to finality applies. 3. New evidence associated with the claims file since the February 2005 denial relates to an unestablished fact necessary to substantiate the claim for service connection for type II diabetes and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The RO's February 2005 rating action denying service connection for type II diabetes mellitus is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302(a), 20.1103 (2017). 2. As additional evidence received since the February 2005 denial is new and material, the criteria for reopening the claim for service connection for type II diabetes mellitus are met. 38 U.S.C.A. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. § § 3.102, 3.156(a), 3.159, and 3.326(a) (2017). Given the favorable disposition of the petition to reopen the claim for service connection for diabetes mellitus, type II, the Board finds that all notification and development actions needed to fairly adjudicate this matter has been accomplished. Under the legal authority in effect at the time of prior denial and currently, service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. See 38 U.S.C.. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2017). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Also (as explained in more detail below), type II diabetes mellitus is among the chronic diseases, subject to presumptive service connection, which the VA Secretary has determined that there exists an etiological relationship to exposure to certain herbicides, to include Agent Orange. A presumption of such exposure has traditionally been extended to veterans who served in Vietnam during the Vietnam. Era See 38 U.S.C. § 1116 (a); 38 C.F.R. § 3.309 (e). In this case, the Veteran's service connection claim for type II diabetes mellitus was initially denied in a February 2005 rating decision. The evidence then of record consisted of service medical records, some service personnel records from October 1952 to October 1972, outpatient treatment reports, lay statements, and a statement from Captain B.W., a physician assistant.. The bases for the denial were that the Veteran did not serve in Vietnam and no service treatment records reflected complaints, treatment, or a diagnosis of diabetes in service. Additionally, medical records did not reflect a diagnosis of diabetes to a compensable degree within one year of discharge from service. The Veteran was notified of the denial in a letter dated in February 2005; however, he did not appeal the denial within one year of the date of the February 2005 letter. See 38 C.F.R. §§ 20.200, 20.201 (2017). Moreover, no new and material evidence was received within the one-year appeal period following the notification of the denial, nor have any additional service medical records been received at any time, warranting reconsideration of the claim. See 38 C.F.R. §§ 3.156(a).(b). Therefore, the RO's February 2005 denial of the claim is final as to the evidence then of record and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Veteran filed his claim to reopen his previously denied claim for service connection for type II diabetes mellitus in March 2009. Regarding petitions to reopen filed on and after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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 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 new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Here, the last final denial of the claim is the February 2005 rating decision. Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Pertinent evidence added to the claims file since the February 2005 rating decision includes lay statements and a VA Memorandum. This evidence reflects that the Veteran's contention that he was diverted from his original flight to Thailand and stuck in Vietnam for three days might be likely. Thus, although the Veteran never received orders to Vietnam, this statement provides an explanation on how he could have been held in Vietnam during service. Additionally, the Veteran submitted a VA Memorandum discussing the use of Agent Orange on Thailand military bases. The Veteran's service personnel record reflects that he served in Udorn, Thailand. The Board finds that the above-described evidence, when considered in light of the evidence previously of record, provides a basis for reopening the previously-denied claim. This evidence is "new" as it was not before the RO at the time of the February 2005 denial and is not duplicative or cumulative of the evidence previously of record. Moreover, the evidence is "material" in that it relates to an unestablished fact necessary to substantiate the claim for service connection-namely, whether there exists a medical relationship between his current type II diabetes and his service. Thus, when considered in light of the evidence previously of record, the lay statements and Memorandum added to the record, at a minimum, triggers VA's duty to assist in the development of the claim, and thus provide a reasonable possibility of substantiating the claim. See, e.g., Shade, supra. Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for type II diabetes mellitus are met. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). ORDER As new and material evidence has been received to reopen the claim for service connection for type II diabetes mellitus, claimed as due to herbicide exposure, to this extent only, the appeal is granted. REMAND The Board finds that further AOJ action on the claim for service connection for type II diabetes, claimed as due to herbicide exposure, on the merits, is warranted. With respect to the Veteran's claim that his diabetes is the result of in-service herbicide exposure, the Board notes that there are certain chronic diseases, such as type II diabetes mellitus, that the VA Secretary has recognized are etiologically associated with exposure to "herbicide agents" during active military, naval, or air service, and are thus presumed to have been incurred during active military service 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. 38 U.S.C. § 1116 (a) (2002); 38 C.F.R. § 3.309 (e) (2017). In this context, 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). However, VA now recognizes that tactical or tactical-like herbicides were used on the fenced-in perimeters of military bases in Thailand. See Veterans Benefits Administration (VBA) C&P Service Bulletin (May 2010). Thus, VA has determined that exposure to herbicides will be conceded for veterans whose duties placed them at or near the perimeters of certain Thailand military bases during the Vietnam era (February 28, 1961, to May 7, 1975), allowing for presumptive service connection of the diseases associated with herbicide exposure. See VA Adjudication Procedures Manual "Live Manual" (M21-1) part IV, subpt. ii, ch. 1, sec. H.5.a; VBA C&P Service Bulletin (May 2010). VA based this determination of evidence contained in a declassified Vietnam era Department of Defense document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." Specifically, the M21-1 provides that if a veteran served with the U.S. Air Force at a specified Royal Thai Air Force Base (RTAFB), of which U-Tapao is one, as an Air Force security policeman, security patrol dog handler, member of the security police squadron, or otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, herbicide exposure if to be conceded on a direct/fact-founds basis. See M21-1, part IV, subpt. ii, ch. 1, sec. H.5.b. The Veteran specifically contends that he was exposed to herbicides either while he was held in Vietnam in December 1966 and/or while he was stationed at Royal Thai Airforce Base in Udorn, Thailand in 1966 to 1967. He reported that his service included being "all in the perimeter of the base." A review of the Veteran's service personnel records reflects that he reported for duty at Royal Thai Air Force in Udorn, Thailand beginning on December 28, 1967 where he served as a supply specialist. The record does not establish that the Veteran served as a security policeman, security patrol dog handler, or member of the security police squadron. Rather, in a July 2013 statement in support of his claim, he reported that he assisted in redistribution and marketing, and was also involved in disposing items no longer needed to the base dump where he was "all in the perimeter of the base." Additionally, he submitted performance reviews which indicate that the Veteran's job duties included, but were not limited to, "storing property in a designated area, occasionally operating a fork lift and driving the truck" and "yard supervisor." The Board notes that the M21-1 sets forth procedures to verify exposure to herbicides based on service in Thailand during the Vietnam era. If herbicide exposure cannot be conceded on a direct/fact-founds basis, the AOJ is to ask the Veteran for specific information concerning the dates, location, and nature of the alleged herbicide exposure. See M21-1, part IV, subpt. ii, ch. 1, sec. H.5.b. If the Veteran provides that information within 30 days, the AOJ is to review the information and make a determination as to whether exposure to herbicides can be acknowledged on a direct/fact-founds basis. Id. If yes, the AOJ should proceed with any other necessary development and then refer the claim to the rating activity. Id. If no, the AOJ is to either (1) send a request to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification of exposure to herbicides or (2) refer the case to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist. Id. In the instant case, the AOJ did not follow the procedures set forth in the M21-1 to verify whether the Veteran was exposed to herbicides based on his service in Thailand. It does not appear from the record that the Veteran was ever asked to provide specific information concerning the dates, location, and nature of the alleged herbicide exposure in Thailand, or that the AOJ either sought verification of the Veteran's alleged exposure with the JSRRC or referred the matter to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist, as required by the M21-1, despite the fact that the Veteran asserted that his MOS involved him being in the perimeter of the base. Accordingly, the Board finds that the claim for service connection for type II diabetes mellitus must be remanded for the AOJ for completion the development required by the M21-1 in cases such as this one. Given that the Veteran has provided lay testimony detailing the duties that required him to be at or near the base perimeters, the Board finds that on remand, the AOJ should contact the JSRRC in an effort to independently verify the Veteran's exposure to herbicides in Thailand. On remand, the AOJ should also contact the NPRC, as well as any other appropriate source(s), to attempt to independently verify whether the Veteran ever set foot in Vietnam during his active duty service. This should include attempting to verify whether the Veteran ever landed in Vietnam during his flights to and/or from Thailand., as alleged. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records, to include VA treatment records from the VA Medical Center (VAMC) in Fresno, California, since August 2013. Additionally, the AOJ should give the Veteran another opportunity to provide information and/or evidence pertinent to the claims on appeal (particularly as regards any non-VA treatment), explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103 (b) (2002); but see 38 U.S.C.A. § 5103 (b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). This should include records from the David Grant USAF Medical Center in Fairfield, California. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2017). The actions identified herein are consistent with the duties imposed by the VCAA. See 38 U.S.C.. §§ 5103, 5103A (2012) 38 C.F.R. § 3.159 (2017). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the remaining claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from the Fresno VAMC and any associated facility(ies) all outstanding records of VA evaluation and/or treatment of the Veteran since August 2013. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Send to the Veteran and his attorney a letter requesting that the Veteran provide information and, if necessary, authorization, to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish any necessary, appropriate authorization to obtain, all outstanding, pertinent non-VA medical records , to include records from the David Grant USAF Medical Center in Fairfield, California. Cleary explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. After records and/or responses received have been associated with the record, send a request to the JSRRC in an effort to verify the Veteran's exposure to herbicides consistent with his service in Thailand at Royal Thai Airforce in Udorn, Thailand beginning December 28, 1966. The JSRRC should be provided with any necessary documentation, to include any relevant service records, the transcript of the Board hearing, as well as any evidence and/or lay statements submitted by the Veteran, to include copies of the statements detailing his MOS duties and/or living situations that required him to be at or near the base perimeters. The JSRRC's response should be documented in the record. Also, any follow up action requested by the JSRRC should be accomplished. 4. After all records and/or responses have been associated with the claim, undertake appropriate action, to particularly include contact with the NPRC, as well as any other appropriate source(s), to attempt to independently verify whether the Veteran ever set foot in Vietnam during his Vietnam era service. In doing so, attempt to verify whether the Veteran ever landed in Vietnam during his flights to and/or from Thailand. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining claim on appeal in light of all pertinent evidence (to particularly include that added to the VBMS and/or /Virtual VA (Legacy Content Manager) file(s) since the last adjudication), and all legal authority 6. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative a supplemental SOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). The AOJ is reminded that this appeal has been advanced on the Board's docket. ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs