Citation Nr: 18146328 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-38 873 DATE: October 31, 2018 ORDER The petition to reopen the previously denied claim of entitlement to service connection for hyperthyroidism is granted. The petition to reopen the previously denied claim of entitlement to service connection for diabetes mellitus, type II, is reopened. REMANDED Entitlement to service connection for hypothyroidism is remanded. Entitlement to service connection for diabetes mellitus, type II, is remanded. FINDINGS OF FACT 1. An unappealed October 2010 rating decision denied service connection for hyperthyroidism and diabetes mellitus, type II, based on the finding that the condition was not shown to be related to the Veteran’s service or that the conditions manifested within one year of separation from active duty. 2. Evidence received subsequent to the October 2010 rating decision bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and in connection with evidence previously assembled raises a reasonably possibility of substantiating the claim of entitlement to service connection for hyperthyroidism and diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The October 2010 rating decision which denied service connection for hyperthyroidism and diabetes mellitus, type II, is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. New and material evidence has been received sufficient to reopen the claims of entitlement to service connection for hyperthyroidism and diabetes mellitus, type II. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the Air Force from October 1974 to October 1978. This matter is on appeal to the Board of Veterans’ Appeals (Board) from an April 2014 rating decision of a regional office of the Department of Veterans Affairs (VA). New and Material Evidence 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). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. This is a low threshold that is meant to enable, rather than preclude, reopening. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The focus is not on whether the evidence remedies the principle reason for the previous denial, but whether the evidence, taken together, would at least trigger the duty to assist by providing a medical opinion. Id. at 117. Hyperthyroidism and Diabetes Mellitus In October 2010, the Veteran’s claim for service connection for hyperthyroidism and diabetes mellitus, type II, was denied due to a lack of nexus that the conditions were related to active service or that the conditions manifested within one year of separation from active duty. The October 2010 rating decision was not appealed and new and material evidence was not received within a year. The rating decision thereby became final. The Veteran’s claim to reopen was received in November 2013. Since the October 2010 decision, new evidence has been received to include VA treatment records, additional written statements from the Veteran, and an article indicating the use of Agent Orange in the jungles of Panama. Further, the credibility of such report is to be presumed for purposes of new and material evidence. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Because this information, in connection with evidence previously assembled, raises the possibility of substantiating the Veteran’s claim, it constitutes new and material evidence sufficient to reopen the claim. Accordingly, the claims for service connection for hyperthyroidism and diabetes mellitus, type II are reopened. REASONS FOR REMAND The Veteran maintains that his hyperthyroidism and diabetes mellitus, type II, are related to his service, to include exposure to herbicide agents while stationed in Panama in 1975 (Howard Air Force Base). Specifically, he states that his job in cable maintenance required him to distribute cables and antenna systems throughout Howard Air Force Base located in the middle of the jungle where he was exposed to Agent Orange. See statement in VA Form 9 dated August 2016. As an initial matter, the Board notes that the record reflects a formal finding of unavailability of the records indicating that the Veteran’s separation examination or military personnel records were destroyed in a fire. In this regard, the Board points out that in cases where the Veteran’s service treatment records are unavailable through no fault of his own, there is a “heightened duty” to assist him in the development of the case. See O’Hare v. Derwinski, 1 Vet. App. 365 (1991); Cuevas v. Principi, 3 Vet. App. 542 (1992). This heightened duty includes providing a medical examination if review of the evidence of record determines that such examination is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4). To that end, the Board observes that the Veteran has not been afforded a VA examination for his claimed conditions and there is no etiological medical opinion of record taking into consideration the Veteran’s lay statements and reported history of symptomatology. Significantly, the Veteran submitted available copies of his medical treatment records dated October 1980 documenting his report of “nervousness for two years,” where medical records reflect he was in fact admitted from October to November 1980 and formally diagnosed with hyperthyroidism. See Fayetteville VAMC records. Thus, as the Veteran contends that his hyperthyroidism had onset during periods immediately following separation from service, an opinion is required to address such contention and to determine whether hyperthyroidism is otherwise etiologically related to his active service. Additionally, the Board finds that further develop is needed to corroborate herbicide exposure in Panama in 1975 while stationed at Howard Air Force Base, and to procure records to verify location of the unit to determine whether his unit operated near in an area in which herbicides were known to have been stored or applied in the jungle. Thus, on remand, the RO should take appropriate actions to procure/verify with appropriate sources the foregoing. Accordingly, in order to ensure that the Veteran’s claim is afforded full consideration, the Board concludes that remand is warranted to afford the Veteran VA examinations and to obtain etiological opinions. The matters are REMANDED for the following action: 1. Contact all appropriate sources in order to procure/ verify unit histories and whether the Veteran’s military occupational specialty in cable maintenance would likely have taken him to in an area which herbicides were known to have been applied while at Howard Air Force Base in Panama during 1975. All efforts to obtain the evidence and findings thereof must be documented in the claims file. If after all procedurally appropriate actions to locate and secure the records have been exhausted, and it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile, make a formal finding to that effect. 2. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the nature and etiology of the claimed hyperthyroidism. The claims file, including this remand, should be reviewed by the examiner to become familiar with the Veteran’s pertinent medical history and such review should be noted in the examination report. All indicated studies, tests and evaluations deemed necessary by the examiner should be performed and the results of such must be included in the examination report. Following examination of the Veteran, the examiner is to provide an opinion addressing whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s hyperthyroidism is etiologically related to his active duty service, to include exposure to herbicides? The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. The examination opinion must reflect consideration of the lay statements of record setting forth a complete rationale for all findings and conclusions. 3. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the nature and etiology of the claimed diabetes mellitus, type II. The claims file, including this remand, should be reviewed by the examiner to become familiar with the Veteran’s pertinent medical history and such review should be noted in the examination report. All indicated studies, tests and evaluations deemed necessary by the examiner should be performed and the results of such must be included in the examination report. Following examination of the Veteran, the examiner is to provide an opinion addressing whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s diabetes mellitus, type II, is etiologically related to his active duty service, to include exposure to herbicides? The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. The examination opinion must reflect consideration of the lay statements of record setting forth a complete rationale for all findings and conclusions. 4. After completing the above actions and any other development deemed necessary, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. K.A. KENNERLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. An, Associate Counsel