Citation Nr: 18143757 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 16-27 853 DATE: October 22, 2018 ORDER The previously denied claim for service connection for type 2 diabetes mellitus is reopened. Service connection for type 2 diabetes mellitus is denied. FINDINGS OF FACT 1. The Veteran did not appeal a July 2005 rating decision which denied service connection for type 2 diabetes mellitus, but evidence received since that decision relates to a previously unestablished element of the claim. 2. The preponderance of the evidence is against finding that type 2 diabetes mellitus began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The July 2005 rating decision which denied service connection for type 2 diabetes mellitus is final, but new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d), 20.200, 20.302, 20.1103. 2. The criteria for service connection for type 2 diabetes mellitus are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the U.S. Air Force from July 1966 to August 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision. 1. New and material to reopen service connection for diabetes Generally, a claim that has been denied by an unappealed regional office decision may not thereafter be reopened. 38 U.S.C. §§ 7104(b), 7105(c). An exception to this rule exists for cases in which new and material evidence is presented or secured with respect to a claim that has been disallowed, in which case the claim must be reopened and the former disposition reviewed. 38 U.S.C. § 5108. “New” evidence means evidence not previously submitted to agency decisionmakers, and “material” evidence means 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 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). This is a “low threshold” in which the phrase “raises a reasonable possibility” should be interpreted as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The credibility of the newly-submitted evidence is presumed, although not blindly accepted as true if patently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran’s claim for service connection for type 2 diabetes was initially denied in a July 2005 rating decision. The basis of the denial was that the evidence did not reflect that the Veteran was exposed to herbicide agents or otherwise had an in-service event related to his diabetes. Since the July 2005 rating decision, additional evidence has been received. In August 2011, May 2014 and June 2016 statements, the Veteran reported that his duties took him to the perimeter of Takhli Air Force Base in Thailand, thus exposing him to herbicide agents. This evidence is new, as it was not part of the record at the time of the prior denial. It is also material, as it raises the possibility that the Veteran was exposed to herbicide agents known to be used along the base perimeter. As new and material evidence has been received, the claim is reopened. 2. Service connection for type 2 diabetes mellitus The Veteran has not asserted that his type 2 diabetes had its onset during service or was directly incurred in service, and the evidence does not otherwise support such a finding. Rather, he contends that his disability is attributable to exposure to Agent Orange during service. VA records beginning in April 2002 document his diagnosis of type 2 diabetes. VA regulations provide that this disability is presumed to be associated with herbicide agent exposure in service, assuming such exposure has been demonstrated. 38 C.F.R. § 3.309(e). Therefore, the only pertinent question in this case is whether the Veteran was exposed to herbicide agents during service. The Veteran’s statements, in conjunction with his service records, show that he was stationed at Takhli Air Force Base in Thailand from May 1967 to May 1968. There are no regulations which presume herbicide agent exposure for veterans who served in Thailand. VA has conducted development to verify exposure but no exposure has been verified. The Veteran was at Takhli Air Force Base. However, his personnel records and Form DD214 show he served as an aircraft mechanic and assistant crew chief. These records include several performance evaluations, including one dated April 1968 which covered the period he was stationed in Thailand. This and the other evaluations show the Veteran was responsible for the maintenance of the aircraft to which he was assigned as well as assisting in supervising that maintenance. In this case, there is a December 2013 formal finding that the information required to corroborate the Veteran’s herbicide agent exposure was insufficient to send to the JSRRC (Joint Services Records Research Center). This finding included consideration of the Veteran’s August 2011 statement that his duties included carrying items (trash disposal), guarding the perimeter, and “end of runway” duties. Finally, while the Veteran reports seeing killed vegetation while in Thailand, a memorandum regarding herbicide use in Thailand, associated with the claims file in May 2013, documents how commercial (i.e., non-tactical) herbicides were used in Thailand. These are separate from herbicide agents used in support of U.S. military operations and do not trigger the presumption for service connection. See Barbett v. Snyder, No. 15-1525, (Vet. App. Feb 3, 2017). Exposure to tactical herbicide agents has not been established, and service connection for type 2 diabetes is not warranted. M. TENNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Shamil Patel, Counsel