Citation Nr: 18140109 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 15-26 861 DATE: October 2, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for diabetes mellitus is reopened; the claim is granted to this extent. Service connection for ischemic heart disease is denied. Service connection for diabetes mellitus is denied. FINDINGS OF FACT 1. The Veteran served on active duty from August 1966 to August 1970, to include service at Udorn Air Force Base in Thailand where his military occupational specialty (MOS) was hydraulics systems repairman/aircraft pneudraulics repairman; he did not serve in a security position or near the base perimeter, and was not otherwise directly exposed to an herbicide agent during active service. 2. A November 2005 rating decision denied the Veteran’s claim of entitlement to service connection for diabetes mellitus; he did not file a timely notice of disagreement (NOD) and no new and material evidence was received within one year of the November 2005 decision. 3. A May 2009 rating decision denied reopening the Veteran’s claim of entitlement to service connection for diabetes mellitus; he did not file a timely NOD and no new and material evidence was received within one year of the May 2009 decision. 4. Evidence received since the May 2009 rating decision is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for diabetes mellitus. 5. Diabetes mellitus did not have onset during active service or within one year of service discharge and is not otherwise etiologically related to active service, to include as due to herbicide agent exposure. 6. Ischemic heart disease did not have onset during active service or within one year of service discharge and is not otherwise etiologically related to active service, to include as due to herbicide agent exposure. CONCLUSIONS OF LAW 1. The November 2005 rating decision denying service connection for diabetes mellitus is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2019). 2. The May 2009 rating decision denying reopening of the claim for service connection for diabetes mellitus is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2018). 3. New and material evidence has been received to reopen the claim of entitlement to service connection for diabetes mellitus. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 4. Diabetes mellitus was not incurred in or aggravated by service, nor is it due to herbicide exposure. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 5. Ischemic heart disease was not incurred in or aggravated by service, nor is it due to herbicide exposure. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In July 2018 the Veteran testified at a Travel Board hearing held before the undersigned Veterans Law Judge. A transcript of the hearing is of record. New and Material Evidence to Reopen Claim Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). In order to be “new and material” evidence, the evidence must not be cumulative or redundant, and “must raise a reasonable possibility of substantiating the claim,” which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). Historically, service connection for diabetes mellitus was initially denied in a November 2005 rating decision on the basis that the evidence showed that diabetes was not present in service or until years after service and there was no evidence the disorder was otherwise related to service. The Veteran did not file a timely appeal nor was new and material evidence received within one year of the rating action. Therefore, the November 2005 rating action is final. In December 2006, the Veteran filed a claim to reopen his previous claim for service connection for diabetes mellitus. In May 2009, the RO denied reopening on the basis that new and material evidence had not been received. It was noted that there was no evidence that the Veteran served in Vietnam, and there was no credible evidence that he was exposed to Agent Orange during service in Thailand. He did not file a timely appeal nor was new and material evidence received within one year. Therefore, the May 2009 rating action is final. The evidence added to the record since the May 2009 rating decision includes photographs and maps of Udorn Air Force Base (submitted by the Veteran), and his statements, in which he described the proximity of his barracks and other work locations to the perimeter of the Air Force Base. Also included are pictures of the klongs/water sumps (which are examples of one of the ways in which the Veteran describes having been exposed to herbicides in service in Thailand). These statements and photographs/maps are competent and presumed credible for purposes of reopening. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). As these statements and evidence relate to the basis for the prior denial raise a reasonable possibility of substantiating the claim, reopening of the claim is warranted. Therefore, the claim of entitlement to service connection for diabetes mellitus is reopened and the appeal is granted to this extent. Service Connection for Diabetes Mellitus and Ischemic Heart Disease Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may be granted on a presumptive basis for certain diseases resulting from exposure to an herbicide agent (including Agent Orange) for veterans who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309 (e). The enumerated diseases which are associated with herbicide exposure include diabetes mellitus and ischemic heart disease. 38 C.F.R. § 3.309 (e). The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a veteran from establishing service connection with proof of direct causation, or on any other recognized basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). VA has determined that special consideration of herbicide exposure on a factual or facts-found basis should be extended to veterans whose duties placed them on or near the perimeters of certain Royal Thai Air Force Bases (RTAFB) when he or claims service connection for disability based on herbicide exposure. VA internal policy stipulates that consideration on these grounds is due for Veterans that served with the U.S. Air Force or Army in Thailand during the Vietnam Era at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang during the period from February 1961 to May 1975. Additional consideration is required as to whether a veteran’s military occupational specialty (MOS) is such as to indicate the performance of duties on a base perimeter as a security policeman, security patrol dog handler, member of the security police squadron, or otherwise was in regular contact with the air base perimeter near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. Tactical herbicides, described as herbicide agents in VA regulations, are distinguished from commercially available herbicides approved by the Armed Forces Pest Control Board for use in routine base maintenance and vegetation control measures during this time. See October 2011 VA Memorandum for the Record: Herbicide use in Thailand during the Vietnam Era (associated with the claims file). Overall, VA has determined that there are no records to show that the same tactical herbicides used in Vietnam, such as Agent Orange, were used in Thailand, but that sporadic use of commercial herbicides occurred within fenced perimeters on Thai airbases. Service personnel records do not document that the Veteran had active service in the Republic of Vietnam or its waters offshore; therefore, the presumption of herbicide exposure in Vietnam is not warranted, and the presumption of service connection based on herbicide exposure in Vietnam does not apply. See 38 C.F.R. § 3.307. However, he served at Udorn Air Force Base in Thailand from May 1969 to August 1970 where his duty title was hydraulics systems repairman. His DD-214 lists his MOS as aircraft pneudraulics repairman. The Veteran has argued that during active service his MOS involved work on different aircraft and equipment that was used to spray Agent Orange, as well as working on aircraft that were located throughout the base, including near the perimeter. Additionally, he reported that his barracks were near the perimeter and he rode a bus to the hydraulics shop daily that resulted in Agent Orange exposure through the open windows of the bus. Finally, he stated that Agent Orange was used to defoliate the base perimeter and that when it rained, the Agent Orange was in the runoff water, which was collected in numerous klongs (water sumps or ponds) and then used for various purposes, including washing uniforms. The Board has considered the lay statements of record asserting exposure to herbicides during active service; however, the evidence does not show that the Veteran was exposed to herbicides in service, to include his active service at Udorn Air Force Base in Thailand. A February 1970 performance report (found in the service personnel records) described his duties as an aircraft pneudraulics repairman (at Udorn Air Force Base) as involving troubleshooting, inspecting, removing, replacing and repairing aircraft installed pneudraulic systems and components. Notably, there is no indication that such duties put the Veteran near or on the base perimeter. Further, his MOS did not involve service as a security policeman, security patrol dog handler, member of a security police squadron, or other service on or near the base perimeter. To the extent that he asserted that his duties involved service at or near the Air Force Base perimeter or exposure to Agent Orange, such statements are inconsistent with, and outweighed by, the additional evidence of record which does not otherwise document that his duties placed him on or near the base perimeter. In this regard, while the Veteran has photographs he says he took from the standpoint of the fence/perimeter at Udorn Air Force base, this does not prove he was present at the perimeter daily, as would be required of him due to MOS duties noted above (security police, etc.). The fact that he stood by a fence and took a picture or that his barracks were close to the perimeter, does not suffice to prove herbicide agent exposure such as would be presumed from the duties required if he were a security patrolman/policeman or otherwise had to walk the perimeter as part of his job. Further, as noted below, his claim of exposure due to fumes from open windows while riding on a bus or having clothes washed in contaminated water are not substantiated methods of exposure. Thus, exposure to herbicides in Thailand may not be presumed. Moreover, there is no indication that the Veteran was otherwise directly exposed to herbicide agents while serving in Thailand. For example, a July 2005 response from the National Personnel Records Center (NPRC) via the Personnel Information Exchange System (PIES) notes that there are no records of exposure to herbicides. A May 2009 memorandum from the U.S. Army Joint Records Research Center (JSRRC) indicates that it could not be documented or verified that Veterans were exposed to tactical herbicides based on contact with aircraft that flew over Vietnam or were used in Vietnam. An August 2011 memorandum documents the RO’s formal finding of a lack of information to corroborate herbicide agent exposure. A July 2017 email of record from the Air Force Historical Research Agency notes that no documentation has ever been found to suggest that any UC-123 Operation Ranch Hand aircraft were ever used to spray Agent Orange from Udorn Royal Thai Air Force Base, Thailand from May 1969 to August 1970. Again, to the extent the lay statements of record assert direct exposure to herbicides, they are inconsistent with and outweighed by the additional probative evidence of record. In sum, the preponderance of the probative evidence of record does not show that the Veteran was exposed to herbicide agents, either directly or presumptively, during his active service in Thailand. Additionally, diabetes mellitus and ischemic heart disease are not otherwise shown to have been directly related to active duty, nor the does the Veteran claim they are related to service on any basis other than herbicide agent exposure. He does not contend, and the evidence of record does not show, that diabetes mellitus or ischemic heart disease manifested during service or within one year of service. Post-service treatment records first document a diagnosis of diabetes mellitus in 2005 and ischemic heart disease in 2004, decades after discharge. In his original claim for service connection for diabetes mellitus dated in March 2005, he indicated that his diabetes had its onset in 1998. Such evidence weighs against a finding that such conditions first manifested during active service or within one year of service discharge. Moreover, it is highly probative that such records do not otherwise indicate that the claimed conditions are related to active service. The Board has considered the Veteran’s lay statements that diabetes mellitus and ischemic heart disease were caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer an opinion as to the etiology of his current diabetes mellitus and ischemic heart disease due to the medical complexity of the matters involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. In conclusion, the preponderance of the evidence weighs against the claims. The Veteran’s assertion of the existence of a relationship between his diabetes mellitus and ischemic heart disease and his service is not probative of a nexus to service as he is not shown to be competent to make such a medical determination. As the preponderance of the evidence is against the claims, there is no reasonable doubt to be resolved and the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Redman, Counsel