Citation Nr: 1803322 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-11 285 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether new and material evidence has been received to reopen service connection for diabetes mellitus, claimed as due to exposure to an herbicide agent, and, if so, whether service connection is warranted. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. R. Woodarek, Associate Counsel INTRODUCTION The Veteran had active service with the Army from July 1965 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office in Houston, Texas (RO), which denied entitlement to service connection for diabetes mellitus, claimed as due to exposure to an herbicide agent. In October 2016, the Veteran testified before the undersigned Veterans Law Judge in a Travel Board hearing. A copy of the hearing transcript has been associated with the record. The issue of entitlement to service connection for diabetes mellitus as due to exposure to an herbicide agent is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an unappealed April 2006 rating decision, the RO denied service connection for diabetes mellitus, claimed as due to exposure to an herbicide agent. 2. The evidence received since the April 2006 rating decision is new and material sufficient to reopen service connection for diabetes mellitus, claimed as due to exposure to an herbicide agent. CONCLUSION OF LAW 1. The April 2006 rating decision, which denied service connection for diabetes mellitus, claimed as due to exposure to an herbicide agent, became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. The evidence received subsequent to the April 2006 rating decision is new and material to reopen service connection for diabetes mellitus. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156(a), 3.303, 20.1105 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2017); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO issued a preadjudicatory notice letters to the Veteran in September 2012 which met the VCAA notice requirements and addressed the new and material evidence issue consistent with Kent v. Nicholson, 20 Vet. App. 1 (2006). Because this decision constitutes a full grant of the benefits sought on appeal, in that the Board is reopening the claim of entitlement to service connection for diabetes mellitus, claimed as due to exposure to an herbicide agent, the Board finds that no further discussion regarding VCAA notice or assistance duties is required. Reopening Service Connection 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. See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 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. 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 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. Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence must be both new and material; if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If the Board determines that the evidence submitted is new and material, it must reopen the case and evaluate the veteran's claim in light of all the evidence. Justus, 3 Vet. App. at 512. The RO previously denied service connection for diabetes mellitus, claimed as caused by exposure to an herbicide agent, in an April 2006 rating decision, finding that the evidence failed to establish service in the DMZ in Korea and failed to show evidence of exposure to herbicides during service. The Veteran did not submit a notice of disagreement to the April 2006 rating decision, and the decision became final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). In rendering the April 2006 rating decision, the RO considered the Veteran's service treatment records, military personnel records showing the Veteran's location in Korea from November 1965 to December 1966, and private treatment records. Therefore, the Board finds that new and material evidence must tend to establish the Veteran's exposure to herbicide agents or a direct connection between diabetes mellitus and service. New evidence received since the April 2006 rating decision pertinent to the claim on appeal includes VA treatment records, an internet article, a July 2008 letter to the Board from the Department of the Army, Center for Unit Records Research, lay statements, Joint Service Records Research Center (JSRRC) search results and hearing testimony. VA treatment records show the Veteran has a current diagnosis of diabetes mellitus. An online article received in August 2013 includes testimony taken before the Korean National Assembly by a former United States Army captain, in which he indicates that herbicide agents were not only used at the DMZ from April 1968 to July 1969. Rather, the former Army captain provided an excerpt from a letter from the Department of the Army, Center for Unit Records Research (CURR), received by a VA regional office in July 2008, which shows the Army sprayed from the Korean DMZ line to I Corp Headquarters from 1962 to 1970. The Veteran also submitted a portion of a prior VA regional office decision from November 2009 which discussed the contents of the July 2008 CURR letter. In a March 2014 VA Form 9, the Veteran stated that he was assigned to the Korean DMZ and at least twice witnessed the spraying of herbicide agents. He also indicated that he had made repeated searches and sweeps through the areas sprayed with herbicide agents. In March 2015, the JSRRC responded to the RO's request for the Veteran's unit location from March 1966 to May 1966, in which the Veteran claimed exposure to herbicide agents at the Korean DMZ. The JSRRC searched the Veteran's unit history in 1966, in which documentation shows the Veteran's battalion was stationed at Camp McKenzie, Korea, and additionally shows the battalion participated in field exercises and training along the DMZ from January 1966 to March 1966. The Veteran's battalion also assumed a new mission of surveillance and anti-infiltration in a sector along the DMZ, however, the history does not document the use, storage, spraying, or transporting of Agent Orange or other tactical herbicides in 1966. At an October 2016 Travel Board hearing, the Veteran testified that he saw spraying by fogging machines while stationed at the Korean DMZ. He indicated he was assigned 24-hour guard duty along the DMZ, to an area which he noticed was devoid of vegetation. The Veteran testified that he has a current diagnosis of diabetes mellitus and that he does not know of any other family members who carry the same diagnosis. He indicated that he believed his diabetes mellitus was due to his exposure to herbicide agents while stationed at the DMZ. Because the Veteran has submitted evidence that suggests that he was exposed to herbicide agents while stationed at the Korean DMZ, the Board finds that the low threshold for reopening service connection, identified in Shade, has been met. Shade, 24 Vet. App. at 11. For these reasons, the Board finds that new and material evidence sufficient to reopen service connection for diabetes mellitus, claimed as due to exposure to an herbicide agent, has been received, and the claim is reopened. 38 C.F.R. § 3.156 (2017). The Board finds, however, that a remand for additional development is necessary to address service connection for diabetes mellitus, as due to exposure to an herbicide agent, prior to rendering a decision on the appeal. ORDER The petition to reopen the claim of service connection for diabetes mellitus, claimed as due to exposure to an herbicide agent, is granted. REMAND As a preliminary matter, the Board notes that the DoD has determined that Veterans who served with specified military units in Korea near the DMZ between April 1, 1968 and August 31, 1971 were exposed to herbicides. See M21-1, Part IV, Subpart ii, Chapter 1, Section H, Para.4.b. In December 2014, the Veteran submitted a copy of a November 2009 VA RO decision (pertaining to another appellant) that cites to a letter from Center of Unit Records Research, dated in July 2008, which notes that herbicides were used in Korea from 1962 to 1970 from the DMZ line to I Corp. Headquarters. The Veteran contends that his currently diagnosed diabetes mellitus is a result of his exposure to herbicide agents during active duty in Korea. Within an October 2016 Travel Board hearing, the Veteran testified that during active duty in Korea, he was stationed to the DMZ and assigned 24-hour guard duty, during which he witnessed the spraying of herbicide agents. Military personnel records show the Veteran was stationed in Korea from November 1965 to December 1966. JSRRC search results show the Veteran's unit was stationed at Camp McKenzie, Korea, and additionally shows the battalion participated in field exercises and training along the DMZ from January 1966 to March 1966, and assumed a new mission of surveillance and anti-infiltration in a sector along the DMZ. The JSRRC search results of the unit history did not document the use, storage, spraying, or transporting of Agent Orange or other tactical herbicides in 1966. The Board notes that the JSRRC search request did not include the Veteran's verified service in Korea from November 1965 to December 1965, but rather only included his verified service in Korea in 1966. On remand, the Board finds that the RO should submit a research and records request to the JSRRC to verify the location of the Veteran's unit from November 1965 to December 1965, and determine whether his unit was exposed to herbicide agents during that time. The Board notes that the Veteran's military personnel records show the Veteran had active service in Korea from November 1965 to November 1966, and as such, the record should be developed for this entire period of time. Accordingly, the case is REMANDED for the following action: 1. The AOJ should provide the JSRRC with a copy of the the November 2009 VA RO decision, which cites to a July 2008 CURR letter which reflects that herbicides were used in Korea from 1962 to 1970 from the DMZ line to I Corp. Headquarters. i. JSRRC should attempt to verify the location of the 3rd Battalion, 23rd Infantry, 2nd Infantry Division from November 1965 to December 1965, to determine if the Veteran was located along the Korean DMZ, and whether he was exposed to herbicide agents during this time. Any response should be documented within the record. All efforts to obtain records should be associated with the claims file. If records are missing or are otherwise unavailable, this fact should be documented and a formal finding of unavailability should be made with notice to the Veteran and his representative. ii. JSRRC should then reconcile the information cited to in the November 2009 VA RO decision of record (i.e., the July 2008 CURR letter), with the VA's conceded use of herbicide agents in Korea and the Veteran's verified service along the Korean DMZ prior to 1968. 2. After all development has been completed, the AOJ should review the claim again based on the additional evidence. If the benefit sought is not granted, the AOJ should furnish the Veteran and his representative with a supplemental statement of the case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are 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.A. §§ 5109B, 7112 (2012). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs