Citation Nr: 18147988 Decision Date: 11/07/18 Archive Date: 11/06/18 DOCKET NO. 16-24 769 DATE: November 7, 2018 ORDER New and material evidence has been submitted and the claim for service connection for type II diabetes mellitus (diabetes) is reopened. Entitlement to service connection for diabetes is granted. FINDING OF FACT 1. In a February 2010 rating decision, the Veteran was denied entitlement to service connection for diabetes. The Veteran did not perfect an appeal of that decision or submit new and material evidence within one year of notification and the decision is final. 2. Some of the evidence received since the February 2010 rating decision is new and raises a reasonable possibility of substantiating the claim for service connection for diabetes. 3. The evidence is at least in relative equipoise as to whether the Veteran was actually exposed to herbicides while serving at the Korat Royal Thai Air Force Base in Thailand. CONCLUSION OF LAW 1. The criteria to reopen the claim for entitlement to service connection for diabetes have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 2. The criteria for establishing service connection for diabetes have been met. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from March 1967 to September 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a November 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus Service connection for diabetes was denied in a February 2010 rating decision on the basis that the Veteran did not serve in the Republic of Vietnam. The Veteran did not submit a timely notice of disagreement or new and material evidence during the appeal period, and the decision became final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2018). Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (2012). New evidence means existing evidence not previously submitted to VA. 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. 38 C.F.R. §3.156(a) (2018). 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. Id. The Court has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence received since the February 2010 rating decision includes evidence that is both new and material to the claim. For example, at the time of the 2010 decision, the Veteran alleged he was exposed to Agent Orange while stationed in the Philippines. In conjunction with his current claim, however, he has alleged he was exposed to herbicides while serving at Korat Royal Thai Air Force Base in Thailand. This new evidence addresses a basis for the previous denial. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, as the evidence is new and material, the claim is reopened and will be considered on the merits. 2. Entitlement to service connection for diabetes mellitus Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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). Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active service, certain enumerated diseases, including type II diabetes mellitus, shall be presumptively service-connected even where there is no record of such disease during service, provided that the disease is manifested to a compensable degree as set forth in 38 C.F.R. § 3.307, and the rebuttable presumption provisions of 38 C.F.R. § 3.307 are met. See 38 C.F.R. § 3.309(e). The Veterans Benefits Administration has also recognized that troops serving in Thailand during the Vietnam era stationed at the Royal Thai Air Force Bases (AFB) to include Korat, who served on one of the specified air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, may have been exposed to herbicides. This applies only during the Vietnam era. The Veteran asserts that service connection is warranted for his diabetes as a result of being exposed to various herbicides in service while stationed at the Korat Royal Thai Air Force Base (RTAFB). As an initial matter, VA treatment records reflect a current diagnosis of type II diabetes mellitus; thus, the question becomes whether the condition is related to the Veteran’s military service. In this case, military personnel records reflect the Veteran was stationed at the Korat RTAFB in Thailand from June 1972 to June 1973 as a jet engine technician. His service performance reports covering the period from June 1972 to June 1973 indicate that the Veteran was responsible for performing troubleshooting, removal, repair, installation, inspection and operational checks of installed engines and components on assigned aircrafts. In an October 2012 statement, and in the Veteran’s June 2013 notice of disagreement, the Veteran elaborated that he was exposed to herbicides while performing his duties which frequently consisted of 12-hour shifts at or near the outer perimeter of the flight line, as well as frequent travel on or near the outer perimeter of the base. The Board notes that the performance report for the period ending June 1973 notes that the Veteran was “Trim Team Chief” on F-105G aircraft. In the same October 2012 statement, the Veteran stated that the trim pad was located at the outer perimeter of the base, and that he was responsible for “performing trimming, leak, and operational checks of engines of the F-105, F-4, and EB-66 aircrafts at maximum power.” The reports of the Veteran’s duties are consistent with his MOS and relevant performance reports. The Board notes that the Veteran has also submitted a portion of the Vietnam era Department of Defense document titled “Project CHECO Southeast Asia Report: Base Defense in Thailand.” The Project CHECO report contains a discussion of various RTAFBs and their perimeter defenses. In regard to Korat RTAFB, the report stated that “Vegetation control was a serious problem at this base in 1972, especially in the critical RTAF area near the end of the runway…[T]he base had received Embassy permission to use herbicides and had just begun that program in June.” The Veteran is competent to report as to his in-service experiences at the Korat RTAFB and there is no indication that he is not credible in this regard. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). There is no directly contradictory evidence. He served at that air force base from June 1972 to June 1973. Based on the foregoing, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran was exposed to herbicides during his service in Thailand. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102. Accordingly, the Board finds that service connection for diabetes is warranted on a presumptive basis. 38 C.F.R. § 3.309(e). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Rachel Mamis