Citation Nr: 1800335 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 16-02 054 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for type II diabetes mellitus, to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran had active service from March 1964 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) from an October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. 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) (2012). FINDINGS OF FACT 1. In an unappealed August 2010 rating decision, the RO denied entitlement to service connection for type II diabetes mellitus finding that the Veteran did not have service in the Republic of Vietnam and there was no nexus between the Veteran's active service and his diabetes mellitus. 2. The Veteran did not initiate an appeal to the August 2010 rating decision or submit new and material evidence within one year; it became final. 3. Evidence received since the final August 2010 rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for type II diabetes mellitus. CONCLUSIONS OF LAW 1. The August 2010 rating decision that denied service connection for type II diabetes mellitus became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence has not been received to reopen service connection for type II diabetes mellitus. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in this regard is irrelevant. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A claim on which there is a final decision may be reopened if new and material evidence is received. 38 U.S.C. § 5108. "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. 38 C.F.R. § 3.156 (a). 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 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). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In an August 2010 rating decision, the RO denied the Veteran's claim for entitlement to service connection for type II diabetes mellitus. The RO found that the Veteran did not have the required Vietnam "in-country" service to qualify for presumptive service connection based on exposure to herbicides. The RO further found that the medical evidence did not reveal that the Veteran had type II diabetes mellitus manifested to a compensable degree within a specified period of time after separation from service, service connection on a presumptive basis was not warranted. Finally, the RO found that there was no evidence associating the Veteran's type II diabetes mellitus directly with his active service and denied service connection on a direct basis. The Veteran did not initiate an appeal to the August 2010 rating decision or submit new and material evidence with one year; that decision became final. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Evidence considered at the time of the August 2010 decision included the Veteran's service treatment records, a response from the Records Management Center regarding Vietnam service, a copy of a "Family Gram" regarding the Veteran's ship, the USS Guide, statements in support of the claim, a map of Vung Tau harbor, and ships log of the USS Guide for March 1, 1967. In August 2015 the Veteran filed an application to reopen the claim. With the application to reopen he submitted a copy of the United States Court of Appeals for Veterans Claims (Court) decision in the case of Gray v. McDonald, 27 Vet. App. 313 (2015). The Veteran cited Gray indicating that the Court stated that reviewing maps of each of those bodies of water, the Court cannot discern any rhyme or reason in VA's determination that Quy Nhon Bay and Ganh Rai Bay are brown water but Vung Tau Harbor - which appears to be inside Ganh Rai Bay - Da Nang Harbor, and Cam Ranh Bay are blue water. The Veteran argued that Vung Tau Harbor should be deemed an inland waterway for the purposes of determining presumptive exposure to herbicides. The Board notes that in Gray the Court stated that VA's prior policy of where to draw the line between inland waterways and offshore waters was arbitrary and, thus, not entitled to deference because some harbors and bays were considered to be offshore waters, such as Da Nang, Vung Tau, or Cam Ranh Bay, while others were considered inland waterways, such as Quy Nhon Bay and Ganh Rai Bay. Thus, in Gray, the Court did not state that Vung Tau Harbor was part of the inland waterways, merely that the line VA used was flawed. Subsequent to the Court's decision in Gray VA updated its policy to state that service aboard a ship that anchored in a deep-water costal harbor, such as Da Nang, Vung Tau, Qui Nhon, Ganh Rai Bay, or Cam Ranh Bay, along the Republic of Vietnam coast, does not constitute inland waterway service or qualify as docking to the shore and is not sufficient to establish presumptive exposure to herbicides, unless the evidence of record confirms the Veteran went ashore during anchorage. VA Adjudication Manual M21-1 IV.ii.2.C.3.m. The Board acknowledges that the submission of the copy of Gray is new. However, the case is not material to the Veteran's claim as it does not raise a reasonable possibility of substantiating the claim because Gray does not establish and the subsequent policy development does not establish Vung Tau Harbor, where the Veteran contends his ship anchored, as an inland waterway for the purposes of presumption of exposure to herbicides and presumptive service connection for type II diabetes mellitus. In addition, the Veteran has not submitted any evidence of any potential amount of herbicides or dioxins in the water in Vung Tau Harbor to which he may have been exposed during his period of service. Finally, nothing associated with the claims file subsequent to the prior final denial otherwise indicates that the Veteran set foot in the Republic of Vietnam, manifested type II diabetes mellitus to a compensable level within the presumptive period, or that the Veteran's type II diabetes mellitus is otherwise directly related to his active service. As such, the application to reopen the claim for service connection for type II diabetes mellitus, is denied. ORDER The application to reopen a claim of entitlement to service connection for type II diabetes mellitus, to include as due to exposure to herbicides, is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs