Citation Nr: 1802353 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 16-32 675 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Whether new and material evidence has been received to reopen service connection for diabetes mellitus, type 2. 2. Entitlement to service connection for diabetes mellitus, type 2, as due to exposure to herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from September 1954 to September 1958 and from October 1958 to November 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In this regard, in the September 2011 rating decision, the RO continued the denial of service connection for diabetes mellitus as no new and material evidence was submitted since the June 2009 rating decision denying service connection for diabetes mellitus. In December 2011, within one year of the September 2011 letter notifying the Veteran of the September 2011 rating decision that denied reopening service connection for diabetes mellitus, the Veteran submitted a statement from a fellow serviceman, E.H.B., to support the claim of service in the Republic of Vietnam. See 38 C.F.R. § 3.156(b) (2017) (new and material evidence which is received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period). Because new and material evidence was received within one year of the September 2011 letter notifying the Veteran of the September 2011 rating decision, finality of that rating decision was precluded under 38 C.F.R. § 3.156(b); therefore, the September 2011 rating decision is the appropriate decision on appeal. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) (West 2012) and 38 C.F.R. § 20.900(c) (2017). FINDINGS OF FACT 1. An unappealed June 2009 rating decision, in pertinent part, denied service connection for diabetes mellitus, on the basis that the Veteran did not have service in the Republic of Vietnam and herbicide exposure during service was not presumed. 2. The Veteran did not appeal the June 2009 rating decision denying service connection for diabetes mellitus after being notified of appellate rights, and no additional evidence was received prior to the expiration of the one year appeal period. 3. The evidence received since the June 2009 rating decision is neither cumulative nor redundant and addresses the grounds of the prior final denial of service connection for diabetes mellitus, namely, service in the Republic of Vietnam, so raises the possibility of substantiating the claim of service connection for diabetes mellitus. 4. The Veteran was not exposed to herbicide agents during service, to include Agent Orange, and herbicide exposure during service is not presumed. 5. Symptoms of diabetes mellitus were not chronic in service, were not continuous since service, and were not shown to a compensable degree within one year of service. CONCLUSIONS OF LAW 1. The June 2009 rating decision denying service connection for diabetes mellitus, type 2, became final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence has been received to reopen service connection for diabetes mellitus, type 2. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for service connection for diabetes mellitus, type 2, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Reopening of Service Connection for Diabetes Mellitus Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c), (d)(3); 38 C.F.R. § 20.1103. If "new and material" evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). "[N]ew evidence" means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial. 38 C.F.R. § 3.156(a). Materiality has two components, first, that the new evidence pertains to the reason(s) for the prior final denial, and second, that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When making a determination whether the submitted evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying concepts derived from the duty to assist. Id. at 118. The Veteran seeks to reopen the previously denied claim of service connection for diabetes mellitus. The claim, initially filed in January 2007, was originally denied in a June 2009 rating decision. The Veteran did not initiate an appeal of the decision denying service connection for diabetes mellitus, and he also did not submit any new and material evidence with respect to this claim within the applicable one-year period. See 38 C.F.R. § 3.156(b); Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). As such, the rating decision (denying service connection for diabetes mellitus) became final as to the evidence then of record, and is not subject to revision on the same factual basis. 38 U.S.C.A. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In the June 2009 rating decision, the RO, in pertinent part, denied service connection for diabetes mellitus on the basis that the Veteran did not have service in the Republic of Vietnam and herbicide exposure during service was not presumed. The pertinent evidence of record at the time of the June 2009 rating decision included the Veteran's claim, and service treatment and personnel records. Since the June 2009 rating decision, additional evidence has been received, in pertinent part, in the form of a December 2011 submission from the Veteran's fellow serviceman, E.H.B. In the December 2011 statement, E.H.B. indicated that the Veteran served in Vietnam. E.H.B.'s statement is new because it has not been previously submitted. This evidence is also material because it pertains to the basis for the prior denial, that is, that the Veteran had service in Vietnam and is presumed to have been exposed to herbicides, and raises a reasonable possibility of substantiating the claim. In this regard, for the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). For these reasons, the Board finds that new and material evidence has been received to reopen service connection for diabetes mellitus. See 38 C.F.R. § 3.156(a). The reopened issue of service connection for diabetes mellitus is adjudicated below. Service Connection for Diabetes Mellitus Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Diabetes mellitus is listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as diabetes mellitus, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (West 2012); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. To establish presumptive service connection for a disease associated with exposure to certain herbicide agents, the evidence must show the following: (1) that the veteran served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 (or was otherwise exposed to an herbicide agent during active service); (2) that he currently suffers from a disease associated with exposure to certain herbicide agents listed under 38 C.F.R. § 3.309(e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the certain diseases shall be service-connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service. VA's Compensation & Pension Service has issued information concerning the use of herbicides in Thailand during the Vietnam War and determined that special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of Thailand military bases during the period beginning on January 9, 1962 and ending on May 8, 1975. VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H.5. VA identifies several Royal Thai Air Force Bases (RTAFBs) in Thailand, including U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, and pursuant to the VA Adjudication Manual, herbicide exposure should be acknowledged on a facts found or direct basis if a United States Air Force veteran served at one of the RTAFBs as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H.5.b. The Veteran contends that the diabetes mellitus is causally related to exposure to herbicide agents, particularly Agent Orange, during service in Vietnam and Thailand. First, the evidence of record reflects that the Veteran has a current diagnosis of diabetes mellitus. Most recently, in a February 2012 VA treatment record, the Veteran's "Problem List" included diabetes mellitus, type II. Although diabetes mellitus is a chronic disease under 38 C.F.R. § 3.309(a), after a review of all the evidence of record, lay and medical, the Board finds that the Veteran's diabetes mellitus did not manifest chronic symptoms in service, did not manifest continuous symptoms after service, and did not manifest within one year of service separation, including to a compensable degree. Service treatment records are absent for complaints of, treatment for, and diagnosis of, diabetes mellitus or symptoms of diabetes mellitus. Indeed, the Veteran does not contend that he had symptoms of diabetes mellitus in service or for many years after service. In a March 2009 statement, the Veteran explicitly stated that the diabetes mellitus did not manifest itself until many years after discharge from the military. Instead, the Veteran asserts that the diabetes mellitus is related to the exposure to herbicides while on temporary duty (TDY) to Vietnam and Thailand. Based on the above, the Board finds the criteria for presumptive service connection for a chronic disease under 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 have not been met; therefore, the appeal, under a presumptive basis for a chronic disease, must be denied. Next, the weight of the evidence is against a finding of herbicide exposure during service, to include on a presumptive basis. Although the Veteran clearly served during the Vietnam Era, there is no indication that he had Vietnam service within the meaning of 38 U.S.C. § 1116(f) and 38 C.F.R. § 3.307(a)(6) (warranting a presumption of herbicides exposure). The Veteran's DD Form 214 reveals that he is in receipt of the Vietnam Service Medal; however, this medal was awarded to personnel who served in-country and outside of Vietnam in support of operations. The United States Department of Defense Manual of Military Decorations and Awards shows that the criteria for receipt of this medal did not require actual duty or visitation in the Republic of Vietnam. Thus, the medal is not conclusive evidence of service in Vietnam. Personnel records reveal that the Veteran went on three separate TDY's of 30 days, 45 days, and 59 days to Southeast Asia from May 1965 to May 1966. Significantly, a June 2013 response from the Air Force Historical Research Agency (AFHRA) indicated that the official unit histories of the Veteran's 6220th Consolidated Aircraft Maintenance Squadron, 441st Combat Support Group, and the 41st Air Division, show that the C-130s of the 6091st Reconnaissance Squadron, also based at Yokota Air Base, Japan, flew their Southeast Asia missions from Thailand, not Vietnam. The 441st Combat Support Group history also makes it clear that numerous maintenance personnel did deploy to Thailand in support of the C-130 missions. In a follow-up correspondence later that day in June 2013, the archivist at the AFHRA further explained that the forward operating base was Don Muang Airfield (which is right outside of Bargkok, Thailand), and that the mission route for the C-130 does not reveal that they ever landed in Vietnam. The archivist indicated that here is no hint that anyone from the 6220th CAMS went to Vietnam, and the histories do not state that any C-130s went to Vietnam from the 6091st Reconnaissance Squadron; nor is there any mention of personnel from the 6220th CAMS going to Vietnam. The only verification from the AFHRA is that personnel from the 6220th CAMS went to Bangkok, Thailand, to service the 6091st Reconnaissance Squadron C-130's. Here, while initially contending that he was presumptively exposed to herbicides solely as a result of service in Vietnam while on temporary duty, pursuant to the above findings from the AFHRA, in the September 2015 Notice of Disagreement, it appears the Veteran abandoned the claim of service in Vietnam. Specifically, the Veteran stated, "I am not applying for Vietnam because records can't be located for my TDY's to that location...but, my records as you have seen certainly show my TDY's to Thailand which I feel relates to my [diabetes mellitus, type II]." In this regard, as noted above, VA's Compensation Service has determined that a special consideration of exposure to herbicide agents should be extended on a facts found basis, but not presumed, for certain Air Force veterans whose regular duties placed them on the perimeter (such as a security policeman or security patrol dog handler, for example) of specifically designated Royal Thai Air Force Bases (RTAFBs) in Thailand. Here, even assuming, arguendo, that the Veteran served on a Royal Thai Air Force Base (Don Muang), the evidence does not show, and the Veteran does not contend that he served as a security policeman, security patrol dog handler, or member of a security police squadron, or otherwise served near a base perimeter in Thailand. Rather, the DD Form 214 reveals that the Veteran's military occupational specialty was aircraft maintenance technician. To this extent, in accordance with the VA Adjudication Manual's guidance on alleged herbicide exposure in Thailand, a Memorandum for the Record titled "Herbicide Use in Thailand during the Vietnam Era" was placed in the Veteran's claims file. This Memorandum was prepared by the VA Compensation and Pension Service (Service) following review of a listing of herbicide use and test sites outside Vietnam provided by the Department of Defense (DoD), as well as other relevant documents. See VA Adjudication Manual. That memorandum noted that VA reviewed official DoD documents describing use, testing, and storage of herbicides during the Vietnam Era as well as the "Project CHECO Southeast Asia Report: Base Defense in Thailand." Specifically, the Memorandum indicated that there is no presumption of herbicide exposure based on being near or working on aircraft that may have flown over Vietnam or handling equipment once used in Vietnam because "[a]erial spraying of tactical herbicides in Vietnam did not occur everywhere, and it is inaccurate to think that herbicides covered every aircraft and piece of equipment associated with Vietnam." Therefore, the weight of the evidence is against a finding of exposure to herbicides as a result of Thailand service. As mentioned above, in a December 2011 statement, the Veteran's fellow serviceman, E.H.B., indicated that the Veteran served in Vietnam. The Board acknowledges the Veteran's contentions, as well as E.H.B.'s statement. However, in light of the above, the Board cannot concede presumptive herbicide exposure in Vietnam or herbicide exposure based on any service in Thailand. In short, neither presumed nor actual in-service exposure to herbicides, to include Agent Orange, is warranted or shown. Because the Veteran's presumed or actual exposure to herbicides in service has not been shown by competent evidence, the Board does not reach the additional direct service connection question of the relationship (nexus) between the Veteran's diabetes mellitus and service. Based on the foregoing, the weight of the competent and credible evidence establishes no relationship between the diabetes mellitus and active service, including no credible evidence of chronic symptoms of diabetes mellitus in service, of diabetes mellitus to a compensable (10 percent) degree within one year of service separation, or continuity of symptomatology of diabetes mellitus since service. As such, the Board finds that a preponderance of the evidence is against service connection for diabetes mellitus on a direct basis, including presumptively as a chronic disease and based on exposure to herbicides in service. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER As new and material evidence has been received, the application to reopen the claim for service connection for diabetes mellitus, type 2, is granted. Service connection for diabetes mellitus, type 2, is denied. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs