Citation Nr: 18147913 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 17-62 256A DATE: November 6, 2018 ORDER Whether new and material evidence has been submitted to reopen the previously denied claim of service connection for ischemic heart disease is granted. REMANDED Entitlement to service connection for ischemic heart disease, to include as secondary to herbicide agent exposure is remanded. FINDINGS OF FACT 1. In an unappealed October 2014 rating decision, the RO denied a claim for entitlement to service connection for coronary artery disease. 2. Evidence received since the October 2014 rating decision was not previously considered by agency decision makers; is not cumulative and redundant of evidence already of record; relates to an unestablished fact; and raises a reasonable possibility of substantiating the Veteran’s claim for ischemic heart disease. CONCLUSIONS OF LAW 1. The October 2014 rating decision, which denied a claim for entitlement to service connection for coronary artery disease, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. The criteria to reopen the claim of entitlement to service connection for coronary artery disease have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from May 1966 to March 1970, including service at Udon Royal Thai Air Force Base (RTAB) from September 1968 to September 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). Though it appears that the RO has reopened the claim for service connection for coronary artery disease and adjudicated the claim on the merits, the Board must determine on its own whether new and material evidence has been submitted to reopen the claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). 1. Whether new and material evidence has been submitted to reopen the previously denied claim of service connection for coronary artery disease. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. Id. The evidence need only relate to one unestablished fact necessary to substantiate the claim to be material. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). 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. 38 C.F.R. § 3.156(a). When determining whether the submitted evidence meets the definition of new and material, VA must consider whether the new evidence, when considered with the evidence of record, at least triggers VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 118. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection for ischemic heart disease (claimed as coronary artery disease) was denied in an October 2014 rating decision on the basis that there was no nexus between the Veteran’s current disability and service. The Veteran was notified of the decision and of his appellate rights by way of correspondence dated October 21, 2014. The Veteran did not initiate an appeal of that decision, nor was any evidence was constructively or physically of record within one year of the notice of the October 2014 determination. Thus, the October 2014 rating decision became final. 38 U.S.C. § 7105; 38 U.S.C. §§ 3.156(b), 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). In determining whether new and material evidence is required to reopen a claim, the focus must be on whether the evidence amounts to a new claim “based upon distinctly diagnosed diseases or injuries” from the claim considered in the prior final decision. Velez v. Shinseki, 23 Vet. App. 199, 204 (2009); Boggs v. Peake, 520 F.3d 1330, 1335-36 (2008). Coronary artery disease, which was denied in October 2014, is a form of ischemic heart disease. See 38 C.F.R. § 3.309 (e). Thus, new and material evidence is required to reopen this claim. At the time of the October 2014 rating decision, the pertinent evidence of record included service personnel records, service treatment records, private treatment records, and a May 2005 Memorandum for the Record (Herbicide use in Thailand during the Vietnam Era). Since the most recent final denial in October 2014, a December 2017 affidavit from the Veteran detailing his exposure to herbicide agents, literature pertaining to herbicide agent use in Thailand, and additional private treatment records were added to the record. As this evidence was not before VA or considered in the prior denial, it is new. The Veteran’s affidavit and the literature regarding herbicide agent use in Thailand are material as they relate to a nexus between his current disability and active service, an unestablished fact necessary to substantiate the claim. Accordingly, new and material evidence has been received. The request to reopen the prior denial is granted. 38 C.F.R. § 3.156. To this limited extent only, the appeal is granted. The reopened claim, now characterized as service connection for ischemic heart disease, is discussed in the Remand section below. REASONS FOR REMAND 1. Entitlement to service connection for ischemic heart disease, to include as secondary to herbicide agent exposure is remanded. The Veteran is diagnosed with coronary artery disease. The Veteran contends that his heart condition is due to exposure to herbicide agents while stationed at the RTAB in Udon, Thailand from September 1968 to September 1969. Ischemic heart disease is recognized by VA as a disease for which presumptive service connection is available as due to herbicide exposure. If a veteran served in the U.S. Air Force in Thailand during the Vietnam era at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat or Don Muang Royal Thai Air Force Base (RTAFB) as an Air Force security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty (MOS), performance evaluations, or other credible evidence, herbicide agent exposure should be conceded on a facts-found or direct basis. A veteran may submit the dates, location and nature of the alleged exposure, which will be referred to the Joint Services Records Research Center (JSRRC) for a formal finding concerning herbicide agent exposure. The Veteran’s exposure to herbicide agents, to include Agent Orange, has not yet been verified. The Board notes that in March 2017, the RO issued a formal finding of a lack of information required to corroborate the Veteran’s claimed exposure to herbicides. The RO indicated that the Veteran had not provided any details of exposure despite requests for such in January 2017. However, a review of the record shows that the Veteran submitted an affidavit in December 2016 specifically detailing the circumstances surrounding his claimed exposure. In the affidavit, the Veteran reported he worked on the flight line and engine trim pad and that 1) his barracks, which were opened aired, were very close to the perimeter of the base, 2) he would often travel off base to go into town which required him to cross over the perimeter, 3) it was very hot and damp at the base with constant rain during the monsoon season, 4) there was no vegetation around the engine trim pad where he worked, 5) he witnessed an air craft from Ranch Hand Squadron on the base, and 6) it was commonplace for him to walk to the perimeter area. Thus, at the time of the RO’s issuance of the formal finding, the Veteran had in fact submitted details of his claimed exposure. As such, the RO should have forwarded the Veteran’s claim to JSRRC for a formal finding. Accordingly, on remand, additional development should be accomplished to determine the Veteran’s exposure to herbicide agents while stationed in Thailand, to include whether the nature of his service there placed him along the perimeter of Udon Air Force Base. The matter is REMANDED for the following action: Make appropriate efforts to attempt to verify the Veteran’s in-service exposure to herbicide agents as discussed above (i.e. at the RTAB in Udon, Thailand while working on the flight line and engine trim pad from September 1968 to September 1969). If more details are needed, contact the Veteran to request the information. If there is still insufficient information to verify exposure to herbicide agents, issue a formal finding outlining the steps taken to assist the Veteran and notify the Veteran of VA’s inability to verify the in-service herbicide agent exposure. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mortimer, Associate Counsel