Citation Nr: 1801189 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-22 088 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicides, based upon substitution of the appellant as the claimant. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), based upon substitution of the appellant as the claimant. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to June 1976, including service in Thailand from March 1969 to January 1970. He died in September 2017. The appellant is his surviving spouse and substitute claimant in this case, as will be discussed in further detail below. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 and July 2013 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The May 2009 rating decision denied service connection for diabetes, and the July 2013 rating decision denied a TDIU. The Board notes that, in a September 2012 rating decision, the RO determined that clear and unmistakable error (CUE) had not been committed in the prior May 2009 rating decision denying service connection for diabetes mellitus. 38 C.F.R. § 3.156(c)(1) provides that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (defining new and material evidence). As such, new and material evidence is not needed to reopen a previously denied claim when relevant service department records are received after a prior final denial. Rather, the claim is simply reviewed on a de novo basis. Therefore, the September 2006 service-connection claim for diabetes must be reconsidered in light of the relevant service personnel records received in May 2011, and the May 2009 rating decision listed above is not final. Because the prior rating decision is not final, there can be no valid claim of CUE. See 38 C.F.R. §§ 3.104, 3.105 (2017). Accordingly, the Board has characterized the issue on appeal as entitlement to service connection for diabetes mellitus. On the Veteran's May 2014 substantive appeal, he requested a videoconference hearing before a Member of the Board in connection with his claim. In August 2017 and September 2017, the RO notified the Veteran that his hearing was scheduled for September 2017. Although the hearing notice was not returned as undeliverable, the Veteran failed to report. There are no other hearing requests of record, so the Board deems his request for a hearing withdrawn. See 38 C.F.R § 20.704(d). 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. The Veteran served in Thailand from March 1969 to January 1970, made several stopovers in Vietnam travelling to and from Thailand during such service, and therefore is presumed to have been exposed to herbicides in service. 2. The Veteran has been diagnosed with diabetes mellitus type II. 3. Prior to the promulgation of a decision in the appeal, the Veteran indicated that he wanted to withdraw his appeal for entitlement to a TDIU. CONCLUSIONS OF LAW 1. The Veteran's type II diabetes mellitus is presumed to have been incurred during his active service in Thailand with stopovers in Vietnam during the Vietnam era. 38 U.S.C. §§ 1101, 1110, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309(e) (2017). 2. The criteria for withdrawal of an appeal by the Veteran have been met for the issue of entitlement to a TDIU. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A review of the record shows that the Veteran died in September 2017. Prior to his death, he had a pending service-connection claim for diabetes mellitus and for TDIU-though as discussed below, he had subsequently withdrawn latter claim. Effective October 10, 2008, the law was changed concerning substitution in the case of the death of a claimant. The revised statute provides that, "if a claimant dies while a claim for any benefit under a law administered by the Secretary, or an appeal of a decision with respect to such a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant under § 5121A of this title may, not later than one year after the date of the death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion." 38 U.S.C. § 5121A (2012). The Board notes that unlike an accrued benefits claim, the record is not closed on the date of death of the original claimant, but remains open for submission and development of any pertinent additional evidence. See VA Fast Letter 10-30 August 2010. In December 2017, the RO recognized the appellant as the substitute-claimant in the Veteran's appeal, and she was previously provided notice thereof indicating that she could submit additional evidence. I. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). With chronic disease shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To show a chronic disease in service, a combination of manifestations sufficient to identify the disease entity is required, as is sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). The Court has established that 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 U.S.C. § 1101. With respect to the current appeal, that list includes diabetes mellitus. See 38 C.F.R. § 3.309(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including diabetes mellitus, 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(a), 3.309(a). However, in order for the presumption to apply, the evidence must indicate that the disability became manifest to a compensable (10 percent) degree within one year of separation from service. See 38 C.F.R. § 3.307. Veterans who, during active 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. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active service, certain enumerated diseases, including diabetes mellitus, shall be presumptively service-connected even where there is no record of such disease during service, provided that the disease is manifested to a compensable degree as set forth in 38 C.F.R. § 3.307, and the rebuttable presumption provisions of 38 C.F.R. § 3.307 are met. See 38 C.F.R. § 3.309(e); see also 38 C.F.R. § 3.307(a)(6)(ii) (providing that with the exception of chloracne or other acneform disease, porphyria cutanea tarda, and early onset peripheral neuropathy, the diseases listed in 38 C.F.R. § 3.309(e) must be manifest to a degree of 10 percent or more at any time after service). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107. A Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). As discussed above, the Veteran served in Thailand during the Vietnam War. Prior to his death, he described several stopovers in Vietnam en route to and from Thailand. On his September 2006 claim, he reported his recent diagnosis for diabetes at the VA Medical Center; and in a January 2007 statement described three stopovers in Vietnam while travelling to and from Thailand. He recalled a stopover in Vietnam in April 1969 en route to Thailand from the United States, a second stopover in Vietnam travelling from Thailand to the Philippines for a temporary duty assignment in June 1969, and en route back to the United States from Thailand in January 1970. This is consistent with his service personnel records, showing that he flew to Thailand from Travis Air Force Base in April 1969, completed training in the Philippines in June 1969, and returned to the United States in January 1970. The Veteran further argued that his diabetes was due to his in-service exposure to herbicides in Thailand. The existence of a current disability is not at issue in this case. Post-service VA treatment records show that the Veteran was treated for pre-diabetes throughout 2005, and began treatment for type II diabetes in May 2006. The records further show that the disease manifested to at least a compensable degree. For example, these treatment records reflect that the Veteran received a prescription for metformin in September 2006, switched to glipizide in May 2011, and began insulin in November 2011. 38 C.F.R. § 4.119, Diagnostic Code 7913 (noting 10 percent is warranted for diabetes managed with restricted diet only). Therefore, the only question remaining is whether the Veteran was exposed to herbicides in service such that presumptive service connection is warranted. While the Veteran served in the Air Force in Thailand, rather than Vietnam, he described several stopovers in Vietnam travelling to and from Thailand. The Board finds that the Veteran's statements describing these stopovers are both competent and credible. Initially, lay testimony as to a factual matter is competent with first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Certainly, the Veteran's presence in a given location is factual matter of which he has first-hand knowledge. Moreover, these lay statements are corroborated by the service personnel records, reflecting his flight information from Travis Air Force Base to Thailand, his certificate for training completed in the Philippines, and the dates he spent in Thailand before returning to the United States in January 1970. As the Veteran's lay statements are consistent with the other evidence of record, the Board also finds these statements credible. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). There is no evidence to the contrary, and every detail that can be verified has been verified by the service personnel records. Accordingly, as a factual matter, affording the Veteran/appellant the benefit of the doubt, for this particular Veteran in this particular case, the Board finds that it is at least as likely as not that the Veteran stopped over in Vietnam travelling to and from Thailand during his deployment there from March 1969 to January 1970, and was exposed to herbicide agents in Vietnam during these stopovers. As he also had type II diabetes mellitus that was manifested to a compensable level for VA purposes as noted above, diabetes mellitus shall be presumed to be due to exposure to certain herbicide agents. See 38 C.F.R. §§ 3.307, 3.309(e). Accordingly, entitlement to service connection for diabetes mellitus is warranted. II. TDIU The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d)(5). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204(a). Withdrawal may be made by the Veteran or by his authorized representative in writing or on the record at a hearing. 38 C.F.R. § 20.204(a), 38 C.F.R. § 20.204(b)(1). In the present case, the Veteran withdrew his appeal for a TDIU in a February 2015 statement, while he also indicated that that he sought to continue his appeal with regard to service connection for diabetes. Therefore, there remain no allegations of errors of fact or law for appellate consideration with regard to a TDIU. Accordingly, the Board does not have jurisdiction to review this issue, and it is dismissed. ORDER Service connection for diabetes mellitus type II, based upon substitution of the appellant as the claimant, is granted. The issue of entitlement to a TDIU, based upon substitution of the appellant as the claimant, is dismissed. ____________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs