Citation Nr: 18146444 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 15-07 149 DATE: October 31, 2018 ORDER The claim of service connection for a gastrointestinal condition is reopened. Service connection of diabetes mellitus is granted. Service connection for ischemic heart disease is granted. REMANDED The issue of entitlement to service connection for basal cell carcinoma is remanded. The issue of entitlement to service connection for melanoma is remanded. The issue of entitlement to service connection for anemia is remanded. The issue of entitlement to service connection for a gastrointestinal condition is remanded.   FINDINGS OF FACT 1. An unappealed April 1973 rating decision denied the claim for service connection for stomach problems, and that decision became final. Evidence received since the unappealed April 1973 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for a gastrointestinal condition. 2. The Veteran had military service on and around the perimeter of the Nakhon Phanom Royal Thai Air Force Base in Thailand from April 1969 to January 1970; as a result, he is presumed to have been exposed to herbicide agents. 3. The diabetes mellitus is presumed to be related to exposure to herbicide agents during his active military service in Thailand. 4. The ischemic heart disease is presumed to be related to exposure to herbicide agents during his active military service in Thailand. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim for service connection for a gastrointestinal condition is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for diabetes mellitus have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for ischemic heart disease, to include coronary artery disease, have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1968 to February 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2012 and June 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board has expanded the claim on appeal to one for service connection for a gastrointestinal condition. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). The change is also reflected on the remanded section of this decision. The Board notes that the AOJ did not address the issues of whether new and material evidence has been received to reopen the claim of entitlement to service connection for a gastrointestinal condition. However, the record reflects that the claim of service connection for “stomach problems” was initially denied in an April 1973 Rating Decision and the decision became final. Subsequently, the Veteran filed an October 2010 claim for “gastroenteritis” and private medical records documented a current diagnosis of gastroenteritis and gastroesophageal reflux disease. Because the Veteran’s current gastroenteritis is similar, rather than distinct, from the Veteran’s previous claim, the Board will consider whether to reopen the Veteran’s claim for a gastrointestinal condition. See Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (holding that if a new claim is not based upon a diagnosed disease or injury that is distinct from a claim previously considered, then VA must evaluate whether the evidence submitted since the last final decision tends to substantiate an element of a previously adjudicated matter). Accordingly, the issue has been added, as reflected on the title page. New and Material Evidence The claim of service connection for “stomach problems” was initially denied in an April 1973 Rating Decision. The claim was denied because a VA medical examination did not document a current disability for VA purposes. The RO considered the Veteran’s lay statements, service treatment records, and the March 1973 VA examination report. However, the RO concluded that the Veteran did not have a current disability and service connection was not warranted. The RO notified the Veteran in a May 1973 denial letter, but the Veteran did not appeal the decision and did not submit relevant evidence within one year of the decision. Therefore, the claim became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. In October 2010, the Veteran filed a claim of service connection for gastroenteritis. For reasons described above, the Board finds that this claim is the same as that decided in 1973, and thus, that new and material evidence is required to reopen the claim. See Velez, 23 Vet. App. at 204. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Evidence is “new” if it has not been previously submitted to agency decision makers. Id. Evidence is “material” if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or 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. Id. The phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Since the April 1973 denial, new evidence in the form of VA treatment records, private treatment records, and lay statements has been associated with the claims file. This evidence is “new,” as it was not previously submitted to agency decision makers. Some of the evidence is also “material,” because the evidence relates to prior unestablished facts. See Shade, 24 Vet. App. at 122. Specifically, January 2013 private treatment records documented an impression of gastrointestinal bleeding, GERD, and reflux. Additionally, March 2013 private treatment record documented a diagnosis of gastric body polyp. As the foregoing evidence confirms the presence of a current diagnosis of gastrointestinal bleeding, GERD, and gastric body polyp, it relates to unestablished facts that are necessary to substantiate the Veteran’s claim. Thus, new and material evidence has been received since the unappealed April 1973 rating decision, and the claim for service connection for a gastrointestinal condition is reopened. 38 U.S.C. § 5108: 38 C.F.R. § 3.156(a); see Shade, 24 Vet App. at 122. Service Connection The Veteran contends entitlement to service connection for ischemic heart disease and diabetes mellitus due to in-service herbicide exposure. He asserts that his conditions are a result of his herbicide exposure while stationed at Nakhon Phanom Royal Thai Air Force Base. 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. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). For certain diseases, service connection may also be granted on a presumptive basis due to exposure to herbicides. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Ischemic heart disease and diabetes mellitus are such diseases. The Veteran’s service treatment records verify that he was stationed at Nakhon Phanom Royal Thai Air Force Base from at least April 1969 to January 1970. Military personnel records reveal his military occupational specialty as Protective Equipment Specialist. A VA Compensation and Pension Bulletin indicates that that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand, which was intended to eliminate vegetation and ground cover for base security purposes. The evidence of this exposure was found in a declassified Vietnam War era Department of Defense document titled Project CHECO Southeast Asia Report: Base Defense in Thailand. The CHECO report observed that some evidence indicated that the herbicides used on the Thailand base perimeters may have been either tactical or procured from the Republic of Vietnam, or commercial and a variant of much greater strength with the characteristics of tactical herbicides. Thus, when herbicide-related claims involving Thailand service are received, VA must determine whether a veteran’s service activities involved duty on or near the perimeter of the military base where the Veteran was stationed. It was ultimately determined that special consideration of herbicide exposure cases should be extended to those veterans whose duties placed them on or near the perimeters of certain Thailand military bases. This allows for presumptive service connection of the diseases associated with herbicide exposure. VA’s Adjudication Procedure Manual, M21, Part IV, Subpart ii, 1.H.5.b was thereby adopted for application in cases where a veteran alleged exposure to herbicides in Thailand. It directs, in pertinent part, that if a veteran served in the United States Air Force during the Vietnam Era (February 28, 1961 to May 7, 1975) at one of the specified RTAFBs, including at Nakhon Phanom, and was involved with base perimeter security or his duties otherwise placed him near the air base perimeter, then herbicide exposure is conceded. The issue here is whether the Veteran’s duties placed him near the Nakhon Phanom Royal Thai Air Force Base perimeter. In a January 2015 correspondence, the Veteran reported that he was stationed with the 56th Special Operation wing at Nakhon Phanom Royal Thai Air Force Base between 1969 and 1970. There, as a consequence of his military service duties and housing assignment, he was in close proximity to the perimeter line and exposed to herbicide agents. He stated, as an equipment specialist, he “had to take things out to the land field which is on the perimeter line. I also had to take bad Ammo to the E.O.D. Dump, too.” He asserted that his housing was closest to the perimeter line and his “shop” was as the edge of the flight line next to the Military Police Building . . . .” In evaluating the Veteran’s contentions of exposure to herbicides along the perimeter of the Nakhon Phanom RTAFB, the Board notes that he is competent to report the approximate geographical locations of his service. The Board concludes that the Veteran’s contentions are consistent with his service duties as a Protective Equipment Specialist. Further, the May 2010 VA Compensation and Pension Bulletin found that there was significant use of herbicides on the fenced-in perimeters of military air base, to include the Nakhon Phanom Royal Thai Air Force Base. Therefore, as herbicide agents were applied along the perimeter of the Nakhon Phanom Royal Thai Air Force Base, and the Veteran’s competent and credible report places him on the perimeter, the presumption of herbicide exposure is applicable in this case. 38 C.F.R. § 5107(b); 38 C.F.R §§ 3.102, 3.307. Medical records associated with the claims file establish that the Veteran has current diagnoses of coronary artery disease, a form of ischemic heart disease, and diabetes mellitus. The regulations recognize these diseases as being presumptively associated with exposure to herbicides. See 38 C.F.R. § 3.309(e). There is no affirmative evidence to the contrary. Any reasonable doubt that exists with regard to the merits of these claims is resolved in the Veteran’s favor. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, entitlement to service connection for ischemic heart disease and diabetes mellitus is warranted. REASONS FOR REMAND 1. The issue of entitlement to service connection for basal cell carcinoma is remanded. 2. The issue of entitlement to service connection for melanoma is remanded. 3. The issue of entitlement to service connection for anemia is remanded. 4. The issue of entitlement to service connection for a gastrointestinal condition is remanded. Additional development is necessary prior to adjudication of the Veteran’s service connection claims. In April 2010, the Veteran filed a claim of entitlement to service connection for anemia, basal cell carcinoma, melanoma, and a gastrointestinal condition. Specific to the claims of service connection for anemia, basal cell carcinoma, and melanoma, the Veteran contends that his medical conditions are a result of in-service herbicide exposure. For each of the claimed conditions, evidence demonstrates a current medical diagnosis or competent statements of a recurrent disability. December 2010 private Lakeland Dermatology treatment records documented a history of basal cell carcinoma and malignant melanoma. Additionally, in a March 2013 correspondence, the Veteran reported that a dermatologist treats his skin conditions every six months. “The doctor has to burn or cut cancer cells off of me every time I go.” A March 2013 progress notes stated that the Veteran “has microcytic anemia.” A January 2013 private treatment recorded an impression of gastrointestinal bleeding, GERD, and reflux. Therefore, the first element of McLendon is met for each claim. In the March 2013 correspondence, the Veteran asserted that basal cell carcinoma and malignant melanoma are due to his in-service herbicide exposure. Also, the Veteran reported that he has “suffered from Anemia every since I was in South East Asia . . . The doctor at the Sebring Veterans Clinic said that he cannot determine why.” In an August 2014 note, Dr. B.A. stated that the Veteran’s gastrointestinal condition could be from “overseas” or “here at home. There is no way to know.” In light of the foregoing, the Board finds that the low threshold of the McLendon standard has been met in this instance and that the Veteran should be afforded VA examinations to determine whether a causal relationship exists between service and any of his current conditions. McLendon, 20 Vet. App. at 81. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Lakeland Dermatology. Make two requests for the authorized and updated records from Lakeland Dermatology, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of basal cell carcinoma and melanoma. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including exposure to herbicide agents. Following a complete review of the claims file, the examiner should render an opinion as to the following: (a.) Please identify by medical diagnosis the Veteran’s skin conditions, if any. If a diagnosis cannot be made, please describe the nature and degree of functional impairment associated with the reported skin conditions. (b.) For each diagnosis and/or functional impairment, the examiner should state whether it is at least as likely as not that the skin conditions were incurred in or caused by an in-service event, to include his in-service exposure to herbicide agents. Please note, as decided above, the Veteran is presumed to have been exposed to herbicide agents in service. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of anemia. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including exposure to herbicide agents. Following a complete review of the claims file, the examiner should render an opinion as to the following: (a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s currently diagnosed anemia was caused by or results from his in-service exposure to herbicide agents. Please note, as decided above, the Veteran is presumed to have been exposed to herbicide agents in service. (b.) Whether it is at least as likely as not that the Veteran’s anemia was incurred in or is in any other way related to his active duty service. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of a gastrointestinal condition. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. Following a complete review of the claims file, the examiner should render an opinion as to the following: (a.) Please identify by medical diagnosis the Veteran’s gastrointestinal conditions, if any. (b.) For each diagnosis, the examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that the Veteran’s condition began in service or is otherwise related to service? C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Altendorfer, Associate Counsel