Citation Nr: 18145166 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 16-27 390 DATE: October 26, 2018 REMANDED Entitlement to service connection for diabetes mellitus, claimed as due to exposure to herbicide agents, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1968 to June 1972. The Veteran testified at a Board videoconference hearing in July 2017. A transcript of that hearing has been associated with the claims file. The Board notes that in a July 2001 rating decision, the RO initially considered and denied the claim for service connection for diabetes mellitus, and the Veteran did not appeal that decision. In an unappealed August 2011 rating decision, the RO determined that new and material evidence had not been submitted to reopen the claim of service connection for diabetes mellitus. The Veteran submitted a request his reopen his previously denied service connection claim for diabetes mellitus in January 2014 and has asserted that he worked on B52s, KC 135s, and C123s during his service in Thailand. See August 2013 VA Form 21-4138, Statement in Support of Claim. Ordinarily, this would mean that these prior decisions have become final and binding on him as to this issue based on the evidence then of record, in turn requiring the submission of new and material evidence to reopen this claim before reconsidering it on its underlying merits. See 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156(a), 3.160(d), 20.200, 20.302, 20.1103. However, since those prior decisions, additional relevant service personnel records that were not of record at the time of the prior rating decisions, reflecting the nature of his service at U-Tapao Air Force Base (AFB), Thailand have been received. Governing regulation provides that, 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 and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section, which concerns the need to have new and material evidence to reopen the claim under normal circumstances. See 38 C.F.R. § 3.156 (c). Thus, new and material evidence is not needed to reopen a previously denied claim when relevant personnel records and/or any other relevant service department records are received after a prior final denial. The claim is instead reviewed on a de novo basis. In light of the relevant official service department records sought and received in 2017, the Veteran’s service connection claim for diabetes mellitus will be reviewed on a de novo basis. Entitlement to service connection for diabetes mellitus, claimed as due to herbicide exposure, is remanded. The Veteran is seeking service connection for current diabetes mellitus. He contends that during his service in Thailand he was exposed to an herbicide agent such as Agent Orange and that his current diabetes mellitus is attributable to that exposure. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Under certain circumstances, service connection for certain specifically listed diseases, including diabetes mellitus, may be presumed if a veteran was exposed during service to certain herbicides, including Agent Orange, that contain dioxin. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). A veteran who served on active duty in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 38 C.F.R. § 3.307 (a)(6). VA has found that, under certain circumstances, U. S. Air Force veterans who served on or near the perimeter of certain Royal Thai Air Force (RTAF) bases, including the U-Tapao RTAF base, may have been exposed to an herbicide agent. See VA Office of Public Health and Environmental Hazards, Agent Orange: Thailand Military Bases, found at http://www.publichealth.va.gov/exposures/agentorange/thailand.asp. Under certain circumstances, duties on or around C-123 aircraft warrant a presumption of exposure to an herbicide agent. See 38 C.F.R. § 3.307(a)(6)(v). Additional information is needed to determine the likelihood that the Veteran had herbicide exposure during his service in Thailand. According to an April 2011 Formal Finding of Unavailability, the Veteran had not provided specific information about exposure to herbicides. However, his service records document that he was stationed at U-Tapao Airfield in Thailand for a period from 1969 to 1970. His duties included installation, repair, overhaul and modification of aircraft pneudraulic systems. During the July 2017 Board hearing, it was alleged that the Veteran’s duties including working on the B-52s, KC 135s, and the C-123s. The Veteran also contends that when he was promoted to Sergeant, he was permitted to move off base to a small village and had to cross the perimeter of the base every day for months. See August 2013 VA Form 21-4138, Statement in Support of Claim. Personnel records reflect that the Veteran was promoted to Sergeant in September 1970. On remand, the AOJ should obtain information from appropriate military sources as to whether and how much the Veteran was on or near the perimeter of the U-Tapao base. The matter is REMANDED for the following actions: 1. Conduct all necessary evidentiary development to verify whether the Veteran was exposed to herbicides while serving on land in Thailand during active military service. Specifically, contact the Joint Services Records Research Center (JSRRC) and request verification as to whether it is at least as likely as not that duties involving aircraft installation, repair, overhaul and modification of aircraft pneudraulic systems and components and associated Aerospace ground equipment as well as other expected activities at U-Tapao Airfield would place this Veteran on or near the perimeter of the base, and whether it is at least as likely as not that the Veteran worked on C-123 aircraft. The record reflects that the Veteran was attached to the 307th Field Maintenance Squadron at that time. Comply with the evidentiary development noted in VA Adjudication Manual M21-1, IV.ii.1.H.5.b. The Board again notes the Veteran’s contentions that he was exposed to herbicides (a) via his duties working on B52s, KC135s, C130s, and C123s; (b) via working on the “red ball truck” which would be parked near the perimeter many times; (c) via crossing the perimeter every day for months after he was promoted to Sergeant and moved off of the base. 2. Perform all follow-up indicated, document negative responses and refer to the service department for assistance where necessary. Notify the appellant of the results of the records requests. If, after all procedurally appropriate actions to locate and secure the said records have been made and it is reasonably certain that such records do not exist or that further efforts to obtain them would be futile, the RO must make a formal finding to that effect. When records are not received from any source, follow the notification procedures of 38 C.F.R. § 3.159 and allow the Veteran and his representative an opportunity to respond. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Williams, Counsel