Citation Nr: 18150267 Decision Date: 11/15/18 Archive Date: 11/14/18 DOCKET NO. 16-41 323 DATE: November 15, 2018 ORDER New and material evidence having been received, the previously denied claim of entitlement to service connection for diabetes mellitus, type II, as due to herbicide exposure is reopened. New and material evidence having been received, the previously denied claim of entitlement to service connection for status post left below the knee amputation, claimed as amputation, secondary to diabetes mellitus, type II, is reopened. New and material evidence having been received, the previously denied claim of entitlement to service connection for peripheral neuropathy, left upper extremity, is reopened. New and material evidence having been received, the previously denied claim of entitlement to service connection for peripheral neuropathy, right upper extremity, is reopened. New and material evidence having been received, the previously denied claim of entitlement to service connection for peripheral neuropathy, left lower extremity, is reopened. New and material evidence having been received, the previously denied claim of entitlement to service connection for peripheral neuropathy, right lower extremity, is reopened. FINDINGS OF FACT 1. In an unappealed February 2012 statement of the case (SOC), the Regional Office (RO) denied the Veteran’s claims of service connection for diabetes mellitus, type II, amputation secondary to diabetes, and peripheral neuropathy secondary to diabetes; the Veteran did not file a timely substantive appeal within 60 days of its issuance. 2. The evidence received since the February 2012 SOC directly relates to an unestablished fact necessary to substantiate the claim of service connection for diabetes mellitus, type II, amputation secondary to diabetes, and peripheral neuropathy secondary to diabetes. CONCLUSIONS OF LAW 1. The February 2012 SOC is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. 2. New and material evidence has been received to reopen the previously denied claims of entitlement to service connection for diabetes mellitus, type II, as due to herbicide exposure, amputation secondary to diabetes, and peripheral neuropathy secondary to diabetes. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1964 to June 1968. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision by Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. As noted below, the Board has reopened the previously denied claims of entitlement to service connection for diabetes mellitus, type II, as due to herbicide exposure, amputation secondary to diabetes, and peripheral neuropathy secondary to diabetes. However, the Board declines to adjudicate these reopened claims on the merits at this time. Significantly, in an August 16, 2018 order, the Federal Circuit questioned whether the phrase ‘served in the Republic of Vietnam’ in 38 U.S.C. § 1116 unambiguously include service in offshore waters within the legally recognized territorial limits of the Republic of Vietnam, regardless of whether such service included presence on or within the landmass of the Republic of Vietnam. See Procopio v. Wilkie, No. 17-1821 (U.S. Fed. Cir.). Oral argument in the Procopio case is scheduled for December 7, 2013. On October 23, 2018, the Board issued a stay concerning the adjudication of appeals for compensation based on alleged exposure to herbicide agents in the offshore waterways of the Republic of Vietnam pending resolution of the Procopio case. Also, following an April 2014 rating decision denying service connection of ischemic heart disease, in June 2014 the Veteran submitted additional evidence and asked the Agency of Original Jurisdiction (AOJ) to reconsider the decision concerning the issues addressed in the April 2014 rating decision. In the September 2014 rating decision that the AOJ issued in response to this new evidence, the AOJ did not readjudicate the Veteran’s claim for service connection of ischemic heart disease due to herbicide exposure. In light of the stay mentioned above, and to provide the AOJ and the Veteran with sufficient time to appeal any decision, the Board declines to exercise its discretion to remand, but instead refers to the AOJ the issue of entitlement to service connection for ischemic heart disease due to herbicide exposure for appropriate action in accordance with the laws and regulations that govern the right to notice and hearing before the Board. New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is 38 U.S.C. § 5108, which provides that, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Veteran submitted an initial claim for service connection for diabetes mellitus, type II, as due to herbicide exposure, amputation secondary to diabetes, and peripheral neuropathy secondary to diabetes in December 2009. By rating decision dated in July 2010, the RO denied service connection for diabetes mellitus, type II, as due to herbicide exposure, amputation of left big toe secondary to diabetes, and peripheral neuropathy secondary to diabetes, finding that presumptive service connection was not warranted as there was no evidence in the record that the Veteran set foot in Vietnam during the Vietnam era. The evidence considered at the time of the July 2010 rating decision included service treatment records, medical records containing diagnoses of diabetes, peripheral neuropathy, and an amputation, military personnel records, and lay statements from fellow seamen who served on the USS Arlington. The Veteran disagreed with this decision and the RO issued an SOC regarding these issues in February 2012. The Veteran submitted a VA Form 9 on January 22, 2013, more than one year after the July 2010 rating decision was issued and more than 50 days after the February 2012 SOC was issued. Thus, the VA Form 9 is not timely, and the February 2012 SOC became final. See 38 U.S.C. § 7105(d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Pertinent evidence received since the February 2012 denial of the claim includes additional buddy statements from fellow seamen who state they witnessed the Veteran go ashore in Vietnam. This evidence relates to the basis for the prior denial, as an in-service injury, in this instance, exposure to herbicides, was an element previously unestablished. The additional evidence received since the February 2012 previous denial is new and material. The criteria for reopening the claim for service connection for diabetes mellitus, type II, as due to herbicide exposure, amputation secondary to diabetes, and peripheral neuropathy secondary to diabetes has been met. (Continued on the next page)   The application to reopen the claim of service connection for diabetes mellitus, type II, as due to herbicide exposure, amputation secondary to diabetes, and peripheral neuropathy secondary to diabetes is granted to this extent only. As noted above, final resolution on this matter likely hinges on the outcome of a case pending before the Federal Circuit. As such, no decision on the merits of the claims can be made at this time. APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Uller, Associate Counsel