Citation Nr: 18140848 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-19 191 DATE: October 9, 2018 ORDER New and material evidence having not been submitted, the claim for service connection for diabetes mellitus with peripheral neuropathy and retinopathy to include as due to herbicide exposure is not reopened. FINDINGS OF FACT 1. A July 2012 Board decision denied service connection for diabetes mellitus with peripheral neuropathy and retinopathy to include as due to herbicide exposure. The Veteran did not appeal or submit new and material evidence within one year. 2. The evidence received since the July 2012 Board decision does not include evidence that relates to an unestablished fact necessary to substantiate the claim, and does not raises a reasonable possibility of substantiating the claim for service connection for diabetes mellitus with peripheral neuropathy and retinopathy to include as due to herbicide exposure. CONCLUSIONS OF LAW 1. The July 2012 Board decision, which denied the claim for service connection for diabetes mellitus with peripheral neuropathy and retinopathy to include as due to herbicide exposure, is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 3.104, 20.1100 (2018). 2. The evidence received subsequent to the final July 2012 Board decision is not new and material; the claim for service connection for diabetes mellitus with peripheral neuropathy and retinopathy to include as due to herbicide exposure is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156(a) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1967 to September 1969, with service in Thailand from September 1967 to September 1968. He served in the United States Air Force. A June 2003 rating decision denied the Veteran’s claim for service connection for diabetes mellitus with peripheral neuropathy and retinopathy to include as due to herbicide exposure. A January 2006 Board decision also denied the Veteran’s claim. The Veteran appealed the January 2006 Board decision to the Court of Appeals for Veteran’s Claims (Court) and in January 2008, the Court remanded the issue of service connection for diabetes mellitus with peripheral neuropathy and retinopathy to include as due to herbicide exposure to the Board for further adjudication. The Board remanded the issue back to the RO in March 2009 and March 2011 for further evidentiary development. After the completion of all evidentiary development, the Board re-adjudicated the claim and again denied the claim for service connection for diabetes mellitus with peripheral neuropathy and retinopathy to include as due to herbicide exposure in a July 2012 Board decision. The Veteran did not appeal the July 2012 Board decision and the July 2012 Board decision is final. Whether new and material evidence has been submitted to reopen a claim for service connection for diabetes mellitus with peripheral neuropathy and retinopathy. In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2018). A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108 (2014). Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). 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 (2018). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 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, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). A claim is not reconsidered, however, where VA could not have obtained the records when it initially decided the claim because the records did not exist at that time, or because the claimant failed to provide sufficient information to identify and obtain the records from the respective service department, the Joint Services Records Research Center (JSRRC), or any other official source. 38 C.F.R. § 3.156(c)(2). To establish service connection, a Veteran must show: (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 or aggravated during service - the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In a July 2012 Board decision, the Board denied service connection because it found that the evidence of record did not show that the Veteran was exposed to herbicides during his service in Thailand. The Board also found that service connection was not warranted on a direct basis or on the basis of presumptions accorded to chronic diseases because there was no evidence of continuity of symptomatology or evidence linking the current disease to service. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1110. Evidence of record at the time of the July 2012 Board decision includes the following: 1) STRs and service personnel records; 2) an October 2002 Veteran lay statement indicating that he saw herbicides being sprayed and knew that it was Agent Orange because vegetation was dead in a matter of days; 3) a December 2002 Physician statement indicating the Veteran had a diagnosis of diabetes mellitus; 4) private treatment records showing the Veteran was receiving treatment for diabetes mellitus; 5) a January 2006 Board decision denying service connection for diabetes mellitus with peripheral neuropathy and retinopathy; 6) a November 2010 Memorandum for the Record regarding Herbicide Use in Thailand during the Vietnam Era; 7) a June 2011 negative response from JSRRC; and 8) a July 2011 Formal Finding indicating a lack of information required to corroborate the Veteran’s allegations of exposure to herbicides in Thailand. The June 2011 JSRRC response and July 2011 Formal Finding showed that the Veteran’s exposure to herbicides could not be shown or otherwise supported by the record. Moreover, the record did not show symptoms of or complaints, treatment, or diagnosis of diabetes mellitus in service or manifestations thereof within one year after separation from service. Evidence submitted after the July 2012 Board decision includes the following: 1) an August 2014 Affidavit from the Veteran; 2) private medical records; 3) portions of the M21-1 Manual and declassified Department of the Army Field Manual on Tactical Employment of Herbicides (1971); and 4) an April 2016 Substantive Appeal with accompanying arguments advanced by the Veteran’s representative. The Veteran’s August 2014 Affidavit demonstrate that he believed he was exposed to herbicides based on his MOS and working near the perimeter of the air base at Phitsanulok, working on guard duty at the base perimeter, the proximity of his living quarters to the perimeter, and the weather conditions that he believed caused flooding that could have caused herbicides to run into the base. The Affidavit also stated that the Veteran witnessed the spraying of herbicides along the perimeter of the base. The private medical records show that the Veteran has a current diagnosis of diabetes and is currently receiving treatment for the condition. The Board finds that new and material evidence has not been presented. The evidence, including the 1) August 2014 Affidavit, 2) private medical records, and 3) arguments from the April 2016 Substantive Appeal, is new because it was not previously submitted to VA. However, the evidence is not material because it does not relate to unestablished facts necessary to establish the claim - evidence of exposure to herbicides, on a presumptive or facts found basis. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is cumulative and redundant as that evidence was of record at the time of the prior denial, including the Veteran’s description of his duties under his MOS and sleeping quarters being near the perimeter of the air base at Phitsanulok, Thailand. See 38 C.F.R. § 3.156(a). These statements were made prior to the 2012 Board decision and were considered therein. Although new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened, even when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, this evidence does not raise a reasonable possibility of substantiating the claim. Justus, 3 Vet. App. at 513; Shade, 24 Vet. App. at 117. Accordingly, for all of the above reasons, the Veteran’s claim is not reopened. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Nguyen, Associate Counsel