Citation Nr: 1805557 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-28 130 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE 1. Whether new and material evidence sufficient to reopen a claim for entitlement to service connection for diabetes mellitus, type II (diabetes), to include as due to exposure to herbicides in Korea, has been received. 2. Entitlement to service connection for diabetes, to include as due to exposure to herbicides in Korea. REPRESENTATION Veteran represented by: Kentucky Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Veteran, Mrs. M., and Mr. F. ATTORNEY FOR THE BOARD D. Bassett, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to February 1969. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran requested a hearing before a member of the Board at his local RO in his July 2014 substantive appeal. The Veteran changed his mind and requested he instead be scheduled for a videoconference hearing in July 2015. In August 2015 the Veteran then testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of the testimony is associated with the claims file. FINDINGS OF FACT 1. In a September 2008 rating decision, the RO denied service connection for diabetes partially because there was no evidence the Veteran was exposed to herbicides in-service. The Veteran was notified of the adverse determination, he did not appeal the determination, and no new and material evidence was submitted within the applicable appeal period. 2. In a January 2013 rating decision, the RO denied the Veteran's claim to reopen the claim for entitlement to service connection for diabetes because the evidence submitted was not new and material. 3. Since the final September 2008 decision, the Veteran and two witnesses provided additional evidence relating to the Veteran's claim for service connection at the August 2015 hearing. 4. The Veteran was present in Korean while on active duty between February 1968 and January 1969 and he has presented credible evidence that he travelled to the Korean demilitarized zone (DMZ) during this period. As such, he is presumed to have been exposed to herbicides during his service. 5. The Veteran has been diagnosed with diabetes mellitus, type II, which is present to a compensable degree. CONCLUSIONS OF LAW 1. The September 2008 rating decision, which denied the Veteran's claim of entitlement to service connection for diabetes, became final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2017). 2. The additional evidence presented since the September 2008 rating decision is new and material, and the claim for entitlement to service connection for diabetes is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for service connection for diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1110, 1116, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309(e) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Given the favorable nature of the Board's decision to reopen the Veteran's claim and to grant the Veteran's claim, further discussion of VA's duties to notify and assist the claimant is not necessary. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. II. Claim to Reopen As noted above, the RO denied entitlement to service connection for diabetes in an September 2008 rating decision. The decision noted that there was no evidence the Veteran served in-country in Vietnam or in a unit recognized by VA as serving along the demilitarized zone (DMZ) in Korea where herbicides were used between April 1968 and July 1969. Therefore, the RO denied entitlement to service connection for diabetes. Although the prior decision became final, a claim may nevertheless be reopened if new and material evidence is presented. 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. 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). Whether or not the RO reopened a claim is not dispositive, as it is the Board's responsibility to consider whether it is proper for a claim to be reopened. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Evidence is presumed credible for the purposes of reopening a claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is considered beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating a claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). If new and material evidence is received within the remainder of the appeal period after a decision, the evidence will be considered as having been received in conjunction with that decision. 38 C.F.R. § 3.156(b). VA is required to determine whether evidence received during the appeal period is new and material. Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). If new and material evidence is found during this period, the decision does not become final. Id. Since the RO's denial in September 2008, the Veteran has submitted statements, he testified at a hearing in August 2015, and two other witnesses provided statements at the August 2015 hearing. This testimony provided additional evidence concerning the Veteran's exposure to herbicides in Korea. For the limited purposes of deciding whether to reopen the Veteran's claim, the credibility of this evidence is presumed. Justus, 3 Vet. App. at 513. Because this evidence relates to whether the Veteran was exposed to herbicides in-service, the Board concludes that this newly received evidence is not cumulative of the record at the time of the September 2008 decision with respect to the issue of entitlement to service connection for diabetes, and it raises a reasonable possibility of substantiating the Veteran's claims. See Shade, 24 Vet. App. at 110. As such, the evidence received since the September 2008 RO decision constitutes new and material evidence and the claim must be reopened. 38 C.F.R. § 3.156. III. Service Connection The Veteran contends that his diabetes is related to his in-service exposure to herbicides. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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 or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). A veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iv). If a Veteran was exposed to an herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as diabetes mellitus, Type II, or adult-onset diabetes); Hodgkin's disease; all chronic B cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); and ischemic heart disease, (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The Veteran submitted private treatment records indicating a diagnosis of diabetes, dating back to at least August 2003. Treatment records from August 2010 indicating a continuing diagnosis of diabetes. Thus, the Veteran has a current disability of diabetes, and the first Shedden element is established. Because diabetes is one of the diseases presumed to be due to in-service exposure to herbicides, the Veteran need only establish that he either directly was exposed to herbicides or is presumed to have been exposed to herbicides to be entitled to service connection. 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). The records do indicate that the Veteran served in Korea during the presumptive period, namely from January 1968 to February 1969. However, the Veteran's unit, the First Battalion, 17th Artillery, is not among those that are known to have operated in the Korean DMZ. M21-1, Part IV, Subpart ii, 1.H.4.b. Nevertheless, the Veteran provided very specific testimony at the hearing as to the circumstances and locations of his duties. He testified that he travelled throughout Korea on courier runs, "including up to the DMZ," and also testified, and his witness corroborated, that he "went up to the DMZ in his flak jacket." The Veteran reported that his compound was 1.7 miles away from the DMZ but when he was sent to the DMZ, he was within 250 yards of North Korean soldiers. The Veteran's service personnel files (SPRs) confirm that his in-service specialty dealt with communications. Further, there is no explicit evidence to contradict his reports. Resolving reasonable doubt in his favor, the Board finds that the Veteran served in locations in Korea that would have entailed exposure to herbicides. As the Veteran was present in Korea during the presumptive period and he has shown that he was present at the Korean DMZ, he is presumed to have been exposed to herbicides. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. In addition, he has been shown to have diabetes to a compensable degree, and VA has found that there is a link between herbicide exposure and diabetes. As such, service connection for diabetes mellitus, is warranted. 38 U.S.C. §§ 1110, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309(e). ORDER Service connection for diabetes mellitus, type II, is granted. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs