Citation Nr: 18143024 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 16-06 570 DATE: October 17, 2018 ORDER New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for hypertension; to this extent only, the appeal is granted. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for type II diabetes mellitus; to this extent only, the appeal is granted. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for major depression; to this extent only, the appeal is granted. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for type II diabetes mellitus is remanded. Entitlement to service connection for major depression is remanded. FINDINGS OF FACT 1. In a January 2012 decision, the Board denied service connection for hypertension, type II diabetes mellitus, and major depression. 2. The evidence received since the January 2012 Board decision is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of sustaining the Appellant’s claim for entitlement to service connection for hypertension, type II diabetes mellitus, and major depression. CONCLUSIONS OF LAW 1. The January 2012 Board decision denying service connection for hypertension, type II diabetes mellitus, and major depression is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1103 (2017). 2. The criteria to reopen service connection for hypertension, type II diabetes mellitus, and major depression have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1963 to September 1967. This matter comes before the Board of Veterans’ Appeal (Board) on appeal from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence A January 2012 Board decision denied service connection for diabetes mellitus, type II, because the Veteran was not shown to have served in Vietnam. Service connection for hypertension was denied because it was not shown during military service; within a year of service discharge; or presumptive to Agent Orange exposure. Service connection for depression was denied based on the absence of depression during service or for extended period of time afterwards. Moreover, since service connection was denied for diabetes mellitus, depression could not be established on a secondary basis. The relevant evidence of record at that time included the Veteran’s service treatment records and post-service treatment records. See January 2012 Board decision. If new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. Under 38 C.F.R. § 3.156 (a), evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is evidence which, 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. In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) 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. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the time of the January 2012 decision, additional relevant evidence have been added to the e-file, to include statements, duplicate medical records as well web based medical articles. This includes a public health article regarding C-123 airplanes and the possibility of Agent Orange contamination related to these aircrafts. He also submitted medical articles regarding the etiological relationship between diabetes mellitus and hypertension. Since the Veteran’s attorney failed to provide accompanying arguments, the Board can only infer that he contends that the Veteran was exposed to these types of airplanes while serving aircraft carrier duty. The Board notes that the Health and Medicine Division (HMD) of the , Engineering and Medicine released a report in January 2015 titled Post-Vietnam Dioxin Exposure in Agent Orange-Contaminated C-123 Aircraft. The report noted that active duty personnel in unit locations where a contaminated C-123 was assigned “may” qualify for benefits related to Agent Orange exposure. As noted in 2012 decision, the records show that the Veteran served in the Navy, and that he was assigned to two different aircraft carriers that were stationed offshore of Vietnam. His personnel records as well as ship histories for the aircraft carries on which the Veteran served show that sorties were flown from these carriers in support operations in Vietnam. As such, this evidence is clearly new and relates to a previously unestablished fact necessary to substantiate the claim, i.e., the Appellant’s possible exposure to chemical dioxins (similar to individuals who were exposed to Agent Orange on contaminated C-123 aircraft (see Institute of Medicine Report - Post-Vietnam Dioxin Exposure in Agent Orange Contaminated C-123, Jan. 9, 2015)). Accordingly, the Board concludes that the Appellant has submitted evidence that is new and material, and the issue of entitlement to service connection for type II diabetes mellitus is reopened. Further, since the Veteran maintains that his hypertension and depression are related to diabetes mellitus these claims are reopened.   REASONS FOR REMAND In this case, it still remains to be seen whether the Veteran came into contact with any aircraft that were used to transport chemical dioxins during his period of service. Because this information has not been discovered, it is the Board’s belief that the claim should be returned so additional information concerning the Appellant’s possible exposure can be investigated. Accordingly, the case is REMANDED for the following actions: 1. The RO should ask the appropriate service department whether it can be determined whether the Appellant was exposed to Agent Orange while serving on aircraft carriers, to include C-123 aircraft. All information obtained should be included in the e-folder for review. 2. If requests for any records are not successful, the RO should inform the Appellant of the nonresponse so that he will have an opportunity to obtain and submit the records himself, in keeping with his responsibility to submit evidence in support of his claim. Continued on the next page.   3. Then, the RO shall make a formal determination concerning the Appellant’s possible exposure. The Appellant shall be informed that such a review is occurring and that he may provide any additional information, including pictures, that would confirm the Appellant’s previous assertions that he was exposed to chemical dioxins. RO shall then make a formal finding concerning the Appellant’s possible exposure, and the Appellant will be notified of that determination. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.D. Jackson, Counsel