Citation Nr: 18140826 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 17-33 067 DATE: October 5, 2018 ORDER New and material evidence has not been presented, and the claim of entitlement to service connection for diabetes mellitus, type II, is not reopened. New and material evidence has not been presented, and the claim of entitlement to service connection for ischemic heart disease is not reopened. FINDINGS OF FACT 1. An unappealed July 2013 rating decision denied service connection for diabetes mellitus, type II, based on the finding that the condition was not shown to be related to the Veteran’s active service, to include no evidence of exposure to herbicides. 2. An unappealed July 2013 rating decision denied service connection for ischemic heart disease based on the finding that the condition was not shown to be related to the Veteran’s active service, to include no evidence of exposure to herbicides. 3. Evidence submitted subsequent to the July 2013 rating decision is either redundant or cumulative of previously submitted evidence, does not relate to an unestablished fact, or does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for diabetes mellitus, type II. 4. Evidence submitted subsequent to the July 2013 rating decision is either redundant or cumulative of previously submitted evidence, does not relate to an unestablished fact, or does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for ischemic heart disease. CONCLUSIONS OF LAW 1. The July 2013 rating decision which denied service connection for diabetes mellitus, type II, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.1103 (2018). 2. The July 2013 rating decision which denied service connection for ischemic heart disease is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.1103 (2018). 3. New and material evidence has not been received to reopen the claim of entitlement to service connection for diabetes mellitus, type II. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). 4. New and material evidence has not been received to reopen the claims of entitlement to service connection for ischemic heart disease. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the Air Force from October 1962 to October 1966. This matter is on appeal to the Board of Veterans’ Appeals (Board) from a April 2016 rating decision of a regional office of the Department of Veterans Affairs (VA). In June 2018, the Veteran testified at a Board hearing via videoconference before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is associated with the record. New and Material Evidence New evidence means 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). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. This is a low threshold that is meant to enable, rather than preclude, reopening. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The focus is not on whether the evidence remedies the principle reason for the previous denial, but whether the evidence, taken together, would at least trigger the duty to assist by providing a medical opinion. Id. at 117. Diabetes Mellitus and Ischemic Heart Disease Veteran filed a claim for entitlement to service connection for diabetes mellitus, type II, and ischemic heart disease that was denied in July 2013 based on the finding that the diagnosed conditions were not related to active service, to include no evidence of exposure to herbicides. The rating decision was not appealed and new and material evidence was not received within a year. The decision thereby became final. The Veteran’s claim to reopen was received in January 2016. Since the July 2013 rating decision, no new and material evidence has been received to show that the Veteran’s diabetes mellitus, type II, and ischemic heart disease are related to service or to show exposure to herbicides has been verified. While the Board does note additional medical information of record to include a statement from the Veteran’s cardiologist submitted on September 2018, the Board observes that such treatment records have no bearing or relation to the specific matter under consideration, as they simply do not establish a medical nexus between diabetes and ischemic heart disease to service and exposure to Agent Orange. Specifically, the VA cardiologist stated that she was “uncomfortable with the specific wording in the nexus statement” and did not provide an opinion as to whether the Veteran’s diseases are related to service. In fact, the cardiologist indicated that she does “not have records of him being in Vietnam” or “exposed to Agent Orange.” Furthermore, although the Veteran’s testimony presented at his hearing in June 2018 is new, the essence of his statements has not changed in that he reiterates his assertions of being exposed to Agent Orange while in Republic of Vietnam on several occasions, and during his temporary tour of duty “TDY” service at Takhli Royal Thai Air Force Base (RTAFB) in Thailand which resulted in his diabetes and ischemic heart disease. See Hearing Transcript dated June 2018 and additional written statements submitted April 2016, August 2013. The Veteran’s military personnel records show his military occupational specialty (MOS) was in “weapons control system mechanic” and that he had “TDY” service in Takhili RTAFB from August 12, 1965 to October 1, 1965. As to the Veteran’s assertion of being exposed to herbicides in Thailand, the official documents do not show that the Veteran was an Air Force security policeman, security patrol dog handler, member of the security police squadron, or otherwise near the air base perimeter. In fact, the record reflects a response from The Joint Service Records Research Center (JSRRC) specifically indicating that, “to date, the available historical data does not document Agent Orange or tactical herbicides spraying, testing or storage at Takhli RTAFB, Thailand during the August 1965 through October 1965 time frame.” JSRRC also noted that the data was negative and did not report on the Veteran’s unit or duty assignment locations in proximity to the Takhli RTAFB perimeter. Additionally, based on the Veteran’s recent statements, the RO again attempted to verify his exposure to herbicide agents in service. The record reflects a response from the Air Force Historical Research Agency verifying that the official histories do not support the Veteran’s claim of being deployed to Vietnam as the official unit history covering 1965 to 1966 show that his unit was routinely deployed to Takhli RTAFB and not Vietnam. The archivist noted that “neither the [441st Armament and Electronics Maintenance Squadron] or the [36th Tactical Fighter Squadron] were ever stationed in Vietnam. Their base in Southeast Asia was always Takhili.” As to the Veteran’s statement that he went to Da Nang, Republic of Vietnam, the archivist again indicated that “some pilots were selected to go to Da Nang to pick up aircraft for their use” but the maintenance personnel would not have been involved in such “ferry flights.” Therefore, these records are not material as it does not relate to any unestablished fact necessary to substantiate the Veteran’s claims. The Board acknowledges that the threshold for reopening a claim is low, but it is a threshold nonetheless and as described above, the evidence that has been added since the July 2013 rating decision clearly does not reach that threshold. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). In sum, the unestablished facts that were missing at the time of the July 2013 denial of service connection have not been presented. There is no evidence of exposure to herbicides in service or any medical evidence of a link between the current disability and service; or that the Veteran had onset of diabetes mellitus, type II, or ischemic heart disease in service; or that the conditions manifested to a compensable degree within the time period specified for service connection on a presumptive basis under 38 C.F.R. § 3.307. As such, even with consideration of all the evidence of record, no duty to assist by providing a medical opinion would be triggered which might raise a reasonable possibility of substantiating the claim. Accordingly, the Board finds that new and material evidence has not been presented, and the claim for entitlement to service connection for diabetes mellitus, type II, and ischemic heart disease cannot be reopened. 38 C.F.R. § 3.156(a). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. An, Associate Counsel