Citation Nr: 18144635 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 16-04 218 DATE: October 25, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for diabetes mellitus, type II, is reopened. REMANDED Entitlement to service connection for diabetes mellitus, type II, as due to in-service herbicide exposure, is remanded. Entitlement to service connection for Parkinson’s disease, as due to in-service herbicide exposure, is remanded. Entitlement to service connection for progressive supranuclear palsy is remanded. Entitlement to service connection for residuals of a stroke, to include as secondary to diabetes mellitus, type II, is remanded. Entitlement to special monthly compensation (SMC) for aid & attendance/housebound status is remanded. Entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for the cause of the Veteran’s death is remanded. FINDING OF FACT 1. The November 2002 rating decision that denied the Veteran’s claim of entitlement to service connection for diabetes mellitus, type II was not appealed and is final. 2. Evidence received since the November 2002 rating decision is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the claim of entitlement to service connection for diabetes mellitus, type II. CONCLUSION OF LAW 1. The November 2002 rating decision that denied service connection for diabetes mellitus, type II is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.103(f), 3.156(b)-(c), 20.200, 20.201, 20.300, 20.302, 20.1103. 2. New and material evidence has been received to reopen the claims of entitlement to service connection for diabetes mellitus, type II. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty from May 1964 to September 1973, and from January 1975 to August 1985. He died in May 2012. The appellant is the Veteran’s surviving spouse and was substituted for the Veteran as the claimant in this matter. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied the claims on appeal. The case has since been transferred to the RO in Roanoke, Virginia. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for diabetes mellitus, type II Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105 (c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. 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). New and material evidence is not required as to each previously unproven element of a claim. There is a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In this case, a November 2002 rating decision denied the Veteran’s claim of entitlement to service connection for diabetes mellitus, type II on the basis that his currently diagnosed diabetes mellitus, type II, could be attributed to hemochromatosis. The Veteran did not appeal the decision, and it became final. The pertinent evidence of record at the time of that decision included the Veteran’s service treatment records (STRs) and private medical treatment records. The claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). In February 2012, the appellant submitted a new claim for diabetes mellitus, type II. The evidence associated with the claims file since the November 2002 rating decision includes additional medical treatment records, a written statement from the Veteran concerning his application for consideration under the Navy’s Limited Duty Officer (LDO) program, VA Memorandums concerning the Veteran’s Vietnam service, and a written statement from the appellant that the Veteran had occasion to go ashore in Vietnam while stationed aboard the U.S.S. Kearsarge. Overall, the Board finds that the evidence submitted since the February 2012 rating decision is new and material. The Board notes that this evidence is not cumulative or redundant of the evidence previously of record. Moreover, it raises a reasonable possibility of substantiating the Veteran’s claim because it suggests that the Veteran may have gone ashore in Vietnam, possibly entitling him to presumptive service connection for diabetes mellitus, type II under 38 C.F.R. § 3.307 (a)(6). Specifically, in his LDO application letter, the Veteran wrote, “I was the only lookout ever to depart the Kearsarge a Second Class Petty Officer.” While the exact meaning of this statement is unclear, the appellant contends that this letter indicates the Veteran had reason to go ashore on the landmass of Vietnam. The Veteran also described participating in air operations in Vietnam and wrote about his service aboard the U.S.S. Cone, a ship that is known to have docked to pier in Da Nang Harbor, Vietnam, in December 1972. Affording the appellant the benefit of the doubt, the Board finds that this new evidence is material to the question of whether the Veteran’s Vietnam service entitles him to presumptive service connection. Therefore, the claim of entitlement to service connection for diabetes mellitus, type II is reopened. The Board finally notes that additional service personnel records (SPRs) were obtained in September 2012, which was after the original claim became final. Those records do not contain any additional information that was not previously of record. Therefore, the original claim may not be reconsidered pursuant to 3.156(c). See Blubaugh v. McDonald, 773 F.3d 1310, 1314 (Fed. Cir. 2014). REASONS FOR REMAND Although the Board regrets the delay, additional information is needed before it can adjudicate the issues on appeal. With respect to the claims for diabetes mellitus, type II and Parkinson’s disease, the appellant asserts that these conditions were secondary to the Veteran’s exposure to herbicides during active service. The evidence shows that the Veteran served aboard the U.S.S. Kearsarge and U.S.S. Cone during the Vietnam War and was awarded the Vietnam Service Medal, the Republic of Vietnam Gallantry Cross, the Republic of Vietnam Campaign Medal, and the Combat Action Ribbon. However, available service records—the majority of which are illegible—do not show that he served in Vietnam for the purposes of 38 C.F.R. § 3.307 (a)(6)(iii). Nevertheless, the appellant maintains that the Veteran had occasion to set foot in Vietnam while serving aboard the U.S.S. Kearsarge. As previously noted, the Veteran mentioned in his LDO application that he was “the only lookout ever to depart the Kearsarge a Second Class Petty Officer.” In context, this statement appears to mean that he was the only person to end his tour on the ship having attained that rank. Immediately prior to this statement, he specifically referred to entering the ship “as an airman in a seaman’s rate” and then undertaking “much hard work” and completing certain courses and examinations. His statement does not appear to mean, more literally, that he departed the ship while anchored at Da Nang. Nonetheless, his statement at least indicates that he might have departed the ship at that time. The Veteran also referred to participation in air campaigns in Vietnam. The evidence also shows the Veteran served aboard the U.S.S. Cone in December 1972, when it docked in Da Nang Harbor. VA maintains a list titled Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents (last updated Sept. 4, 2018). According to this list, the U.S.S. Cone is under Category III: Ships that Docked to Shore or Pier in Vietnam. The guidance provided in conjunction with this list of ships indicates that Category III includes large ocean-going Navy ships that entered an open water harbor and docked to a pier or otherwise docked to the shore of Vietnam. As a result of this docking, it is assumed that crewmembers had the opportunity to go ashore for a work detail or for liberty leave. Therefore, any Veteran aboard the ship at the time of docking will be eligible for the presumption of exposure if that Veteran provides a lay statement of personally going ashore. See Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents (last updated Sept. 4, 2018). At present, the M21-1 identifies Da Nang Harbor as “considered to be offshore waters of the RVN.” VBA Manual M21-1, IV.ii.1.H.2.c., Specific Geographic Locations Determined to Be Offshore Waters. Thus, “[s]ervice aboard a ship that anchored in a deep-water coastal harbor, such as Da Nang, Vung Tau, Qui Nhon, Ganh Rai Bay, or Cam Ranh Bay, along the RVN coast does not constitute inland waterway service or qualify as docking to the shore and is not sufficient to establish presumptive exposure to herbicides, unless the evidence of record confirms the Veteran went ashore during anchorage.” VBA Manual M21-1, IV.ii.2.C.3.m., Considering Claims Based on Service Aboard Ships Offshore the RVN. However, the Court of Appeals for Veterans Claims (Court or CAVC) has recently called into question the Board’s reliance on the M21-1 in determining what constitutes an inland waterway in Vietnam. See Overton v. Wilkie, No. 17-0125, 2018 U.S. App. Vet. Claims LEXIS 1251, at *13 (Vet. App. Sep. 19, 2018). As such, further development is needed. To this extent, the record in this case includes a June 2012 VA memo from the RO stating that the Veteran’s service records did not support a finding that he was exposed to herbicides during service. However, the memorandum only listed the Veteran’s service between January 1975 and August 1985. It therefore appears that the RO did not consider the Veteran’s prior service, including his service aboard the U.S.S. Kearsarge and U.S.S. Cone. The RO also produced a November 2015 memo stating that the Veteran’s personnel file and DD 214 did not support a finding that the Veteran was exposed to herbicides while serving aboard the U.S.S. Saratoga. The memorandum did not mention the Veteran’s service aboard the U.S.S. Kearsarge or U.S.S. Cone, nor did it address evidence provided by the appellant suggesting the Veteran went ashore in Vietnam. Further, neither the June 2012 nor the August 2015 memorandum suggest that the RO contacted the Joint Services Records Research Center (JSRRC) for evidence (ship logs, etc.) that might corroborate the appellant’s contentions. In light of the evidence indicating the Veteran’s service aboard the U.S.S. Cone when it docked in Da Nang Harbor, as well as evidence suggesting the Veteran might have left the U.S.S. Kearsarge while docked, the Board finds that remand is warranted to contact the JSRRC for further information and verification. With respect to the claim of entitlement to service connection for progressive supranuclear palsy, the evidence includes an October 2011 statement from the appellant in which she wrote of the Veteran’s condition, “the doctors do not know how he got it as it is not hereditary. They are not sure if this was something he may have got during his 22 years in the Navy.” Treatment records associated with the claims file show diagnosis of and extensive treatment for progressive supranuclear palsy. No VA examination was ever completed, and it would be impossible to conduct one now as the Veteran is deceased. However, the Board finds that remand is warranted to obtain a VA medical opinion, based on the evidence of record, concerning whether the Veteran’s progressive supranuclear palsy was etiologically related to any aspect of his lengthy period of active service, to include possible exposure to herbicides therein. Finally, the Board finds that the outcome of the appellant’s claims for diabetes mellitus, Parkinson’s, and progressive supranuclear palsy may impact the claims of entitlement to service connection for a stroke, entitlement to DIC, and entitlement to SMC. Therefore, the issues are inextricably intertwined, and the remaining claims on appeal must also be remanded pending resolution of the inextricably intertwined issues. The matters are REMANDED for the following action: 1. Contact the JSRRC or any other appropriate agency to attempt to determine the likelihood that the Veteran went ashore in Vietnam during his service aboard the U.S.S. Kearsarge and/or the U.S.S. Cone while it was docked in Da Nang harbor. If the JSRRC cannot locate such evidence, specifically document the attempts that were made to corroborate the claim and explain in writing why further attempts to locate or obtain corroborating government records would be futile. 2. After the above development has been completed, forward the Veteran’s claims file to a medical professional with the appropriate expertise to review the evidence and provide an opinion concerning the nature and etiology of the Veteran’s diagnosed progressive supranuclear palsy. Following the examination and a review of the relevant records and lay statements, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that the progressive supranuclear palsy had its onset during service or within one year of separation therefrom or is otherwise etiologically related to the Veteran’s military service, to include possible exposure to herbicides therein. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. T. Raftery, Associate Counsel