Citation Nr: 1803950	
Decision Date: 01/22/18    Archive Date: 01/31/18

DOCKET NO.  14-22 890	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus type II, to include as secondary to herbicide exposure.

2. Entitlement to service connection for diabetes mellitus type II, to include as secondary to herbicide exposure


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Robert A. Elliott II, Associate Counsel


INTRODUCTION

The Veteran served on active duty with the Air Force from February 1965 to April 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from the August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

The Veteran testified at a hearing before the undersigned in August 2017.  A transcript has been associated with the Veteran's claims file.

With regard to the Veteran's claim to reopen, regardless of any RO determination, the Board must address the question of whether new and material evidence to reopen the claims has been received because the matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate on a de novo basis.  See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In other words, the Board is required to first consider whether new and material evidence is presented before the merits of the claims can be considered.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).  Accordingly, the Board has characterized the appeal as encompassing both matters set forth on the title page.

As discussed below, the issue of entitlement to service connection for diabetes mellitus type II, to include as secondary to herbicide exposure is reopened and addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).



FINDINGS OF FACT

1. In a January 2007 rating decision, the RO denied the Veteran's claim of entitlement to service connection for diabetes mellitus, type II; he did not appeal this decision, nor did he submit new and material evidence within one year of this decision.

2. Additional evidence associated with the claims file since the January 2007 rating decision is not cumulative and redundant of the evidence of record at the time of the prior denial, it relates to unestablished facts necessary to substantiate the claim for service connection for diabetes mellitus, type II, and it raises a reasonable possibility of substantiating the claim.


CONCLUSIONS OF LAW

1. The January 2007 rating decision in which the RO denied the claim of entitlement to service connection for diabetes mellitus, type II, is final.  38 U.S.C. § 7105(c) (West 2012); 38 C.F.R. § 3.104, 20.302, 20.1103 (2017).

2. As evidence received since the January 2007 rating decision is new and material, the criteria for reopening the Veteran's service-connection claim for diabetes mellitus, type II, are met.  38 U.S.C. §§ 5108, 7105 (West 2012); 38 C.F.R. § 3.156 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Rating actions are final and binding based on the evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority.  38 C.F.R. § 3.104(a).  The claimant has one year from the notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period.  38 U.S.C. § 7105(b) and (c); 38 C.F.R. § 3.160 (d), 20.200, 20.201, 20.202, 20.302(a) (2017).

However, if new and material evidence is presented or secured, VA shall reopen and review the former disposition of the claim.  38 U.S.C. § 5108 (West 2012).  "New and material evidence" is defined as evidence not previously submitted to the agency decision makers which is neither cumulative or redundant, which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what evidence is new and material, rather than a separate determination to be made after the Board has found that evidence is new and material.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion.  Id. 

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).

The Veteran's claim for service connection for diabetes mellitus, type II was denied in a January 2007 rating decision.  The RO noted that the Veteran provided no documentation of a current diagnosis of diabetes.  At the time of the January 2007 rating decision, the evidence of record included his military personnel records, service medical records, and VA treatment records. 

The Veteran entered a notice of disagreement with that decision in August 2007 and subsequently a Statement of Case was issued to the Veteran in July 2008.  The Veteran did not perfect a timely appeal through the submission of a VA Form 9.  No further communication regarding the aforementioned claim was received until January 2012, when VA received his informal petition to reopen such claim.  Therefore, the January 2007 rating decision is final.  38 U.S.C. § 7105(c); 38 C.F.R. § 3.104, 20.302, 20.1103.

Evidence added to the record since the January 2007 rating decision includes lay statements from the Veteran, and buddy statements, both attesting to the Veteran's exposure to herbicide while serving in Thailand, as well as medical evidence suggesting the presence of a diabetes diagnosis. 

The Board finds that such evidence is new because it was not before the RO at the time of the January 2007 rating decision.  Furthermore, this evidence is material because, when considered with the previous evidence of record, it relates to an unestablished fact necessary to substantiate the Veteran's claim.  Thus, the Board finds that the evidence submitted is both new and material, and the claim is reopened.


ORDER

New and material evidence having been received, the claim of entitlement to service connection for diabetes mellitus, type II is reopened.


REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration.  38 U.S.C. § 5103A (West 2012); 38 C.F.R. § 3.159 (2017).

VA's Adjudication Procedures Manual, M21-1, directs rating specialists to concede herbicide exposure where an Air Force Veteran served at a Royal Thai Air Force Base ("RTAFB") during the Vietnam Era and served as a U.S. Air Force security policeman, security patrol dog handler, member of the 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.  See M21-1, Part IV, Subpart ii, 1.H.5.b.

A review of the Veteran's service personnel records shows he was stationed at the Korat RTAFB in Thailand from September 1968 through June 1969.  Throughout the Veteran's service in Thailand, his military occupational specialty ("MOS") was that of a "vehicle operator supervisor."  While the Board acknowledges that the Veteran did not serve as any of the enumerated security or patrol occupations which would trigger a presumption of exposure to herbicides, the Board finds sufficient, credible, evidence, indicating that the Veteran's work duties required him to serve at or near the air base perimeter while stationed at the Korat RTAFB.  Specifically, the Veteran has submitted numerous statements to the Board, wherein he described his daily duties of delivering supplies and paperwork all over the base both inside and out, transporting crews both to and from flight lines and the perimeter fences, having living quarters based along the fence line perimeter, as well as enjoying recreation time near the perimeter.  He also submitted a buddy statement from a fellow servicemember who also described the Veteran's duties and work along the perimeter of the base.  The Veteran has credibly reported that he performed these duties both inside the perimeters and within proximity to the outer perimeter of the Korat RTAFB.

The Veteran's service records include no indication that would call into question the Veteran's credibility.  Based upon the Veteran's statements, those of his fellow servicemember, and his service personnel records, the Board finds sufficient, credible evidence to conclude that the Veteran's work duties required him to serve at or near the Korat air base perimeter, and that exposure to herbicides during his active duty service in Thailand is conceded.

The key question at issue is whether the Veteran has a current diagnosis of diabetes, type II, triggering the award of service-connection on a presumptive basis under 38 C.F.R. § 3.309(e).  The Veteran competently testified at the August 2017 hearing that he had a diabetes diagnosis since the 1980s, and that he has a local doctor who treats him, and he takes two different medications for diabetes each day.  
The medical evidence of record however does not include a clear diagnosis of type II diabetes.  The evidence does show a long history of treatment for elevated blood sugar levels.  A November 1995 private medical treatment record indicated that the Veteran was evaluated for high blood sugar and was seen "for reck ["recheck?"] DM," at which time the Veteran's sugars were much better than previously evaluated.  A July 2012 laboratory report noted that the Veteran's HBA1C results were a "7.4".  There is also a medication list of record from the 14th Medical Group, Columbus Air Force Base showing treatment with Metformin for "sugars/diabetes WF" in 2009 and 2010.  It is unclear to the Board whether these medical findings are indicative of a type II diabetes diagnosis, or merely represent ongoing treatment for elevated blood sugars.  On remand, the Veteran should be afforded an opportunity to supplement the record with any VA or private treatment records he has in his possession noting a diagnosis of type II diabetes, or to authorize VA to obtain those records on his behalf.  

Accordingly, the case is REMANDED for the following action:

1. Send the Veteran a letter requesting that he identify and submit any records of treatment he has in his possession, or identify any records he would like VA to obtain on his behalf (both VA or private), showing treatment for diabetes, type II, to include any records from the 14th Medical Group, Columbus Air Force Base. The AOJ should take all necessary efforts to obtain any identified records.  

2. If and only if the Veteran does not respond to the above request, or the records submitted and/or obtained do not identify a type II diabetes disability, schedule the Veteran for a VA examination to assess whether a current disability exists. All indicated tests should be accomplished and all clinical findings reported in detail.

3. Then, readjudicate the claim.  The adjudicator should take note that the Board has made a finding herein that the Veteran has provided credible evidence supporting a finding that he worked near the air base perimeter during his period of service at Korat RTAFB from September 1968 through June 1969, and that exposure to herbicide agents should be conceded.  If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the appropriate time for response.  Then, return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matter 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 (West 2014).



______________________________________________
V. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs