Citation Nr: 18150279 Decision Date: 11/15/18 Archive Date: 11/14/18 DOCKET NO. 17-10 623 DATE: November 15, 2018 ORDER Service connection for ischemic heart disease (IHD) based on exposure to herbicide agents is granted, subject to controlling regulations governing the payment of monetary awards. Service connection for diabetes mellitus type II based on exposure to herbicide agents is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. The Veteran has a current diagnosis of IHD; and it is at least as likely as not that he was exposed to herbicide agents during his Vietnam Era service in Thailand. 2. The Veteran has a current diagnosis of diabetes mellitus type II; and it is at least as likely as not that he was exposed to herbicide agents during his Vietnam Era service in Thailand.   CONCLUSIONS OF LAW 1. The criteria for service connection for IHD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for diabetes mellitus type II have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1973 to October 1981. He also had additional service in the U.S. Air Force Reserve. Initially, the Board previously denied service connection for a cardiovascular disability in an August 2010 decision. That decision became final on August 10, 2010, when it was mailed. In December 2010, the Veteran filed the IHD claim presently on appeal, which he phrased in part as a petition to reopen the previously denied cardiovascular disability claim, based on claimed exposure to herbicide agents. The Regional Office (RO) also framed the IHD claim on appeal as a petition to reopen the previous, final denial of the service connection claim for a cardiovascular disability. See May 2013 rating decision and code sheet. However, new and material evidence to reopen the previously denied service connection claim for a cardiovascular disability is not required here for the following reasons. Generally, new and material evidence is required to reopen a previous, final denial of entitlement to service connection. However, when a liberalizing law or regulation creates a new basis for establishing entitlement to benefits, a claim for service connection that asserts the new theory of entitlement is considered a new claim that is legally and factually distinct from the former claim, even if the claimed disease or injury is the same. Under such circumstances, de novo review of the previously and finally denied claim is warranted. See Spencer v. Brown, 17 F.3d 368 (Fed. Cir. 1994). VA issued a Final Rule broadening the list of diseases presumptively associated with exposure to herbicide agents under 38 C.F.R. § 3.309(e) to include IHD, which became effective on August 31, 2010. See 75 Fed. Reg. 53,202 (Aug. 31, 2010). As this liberalizing regulation became effective after the August 10, 2010 Board decision denying service connection for a cardiovascular disability, new and material evidence is not required to reopen the claim and the Board will reconsider it de novo. The Board has characterized this claim accordingly. The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See id. Pertinent regulations for consideration were provided to the Veteran in the July 2016 Statement of the Case (SOC) and will not be repeated here. Service Connection The Veteran seeks service connection for IHD and diabetes mellitus type II under regulatory presumptions. Specifically, he contends in part that he was exposed to herbicide agents during his Vietnam Era service in Thailand based on his military occupational specialty (MOS) duties that regularly brought him on or near the perimeter of the Korat Royal Thai Air Force Base (RTAFB). Initially, it is undisputed that the Veteran has current diagnoses of IHD and diabetes mellitus type II. See private treatment records; see also October 2009 VA examination report. This case hinges on whether he was exposed to herbicide agents during active service. A Department of Defense report written in 1973, Project CHECO [“Contemporary Historical Examination of Current Operations”] Southeast Asia Report: Base Defense in Thailand 1968-1972, indicated there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand to remove foliage that provided cover for enemy forces. VA determined that herbicides used on the Thailand base perimeters may have been tactical and procured from Vietnam, or a strong, commercial type resembling tactical herbicides. Therefore, when a claimant alleges exposure to herbicide agents between February 28, 1961 and May 7, 1975 in Thailand at specified RTAFBs, including Korat RTAFB, and that the veteran’s MOS placed him on or near the base perimeter, VA considers the exposure issue on a case-by-case basis. Specifically, if a veteran served as an Air Force security policeman, security patrol dog handler, or member of the security police squadron, or was otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, herbicide exposure should be acknowledged. VA Adjudication Manual at IV.ii.1.H.5.a.-b. As an initial matter, the Board finds the Veteran had service at one of the specified Air Force Bases in Thailand (Korat) and during the specified time frame. A July 2014 letter from the Department of the Air Force noted that the Veteran served at Korat from February 15, 1975, to November 10, 1975.   After a full review of the record, the claims are granted. Affording the Veteran the benefit of the doubt, the evidence summarized below is at least in equipoise that he was exposed to herbicide agents during his verified Vietnam Era active service at Korat RTAFB: • Service personnel records, including DD Form 214 and performance reports for periods from January 1975 to June 1975 and from June 1975 to September 1975 (showing MOS as airframe repair specialist during active service at Korat RTAFB; verifying that his MOS during his service at Korat RTAFB specifically involved duties on the flight line; “Performs flightline and shop maintenance on aircraft . . .”, “has contributed immensely to the flightline workload, which has been considerable”); • Korat RTAFB map submitted by Veteran (with his competent, credible, and detailed annotations identifying base perimeter and adjacent aircraft ramp where he stated he worked during service); • Veteran’s lay statements, e.g., December 2010 correspondence and March 2017 response to SSOC (competently, credibly, and consistently describing in detail MOS duties during service at Korat RTAFB that regularly brought him near base perimeter, including daily work on aircraft near flight line; explaining that he worked on aircrafts that were parked near base perimeter). Considering the Veteran’s verified MOS and his competent and credible statements summarized above, the evidence is at least in equipoise that his duties regularly took him on or near the perimeter of Korat RTAFB. Therefore, under the specific circumstances of this case, the Board finds that he likely was exposed to herbicide agents during his Vietnam Era active service in Thailand.   As IHD and diabetes mellitus, type II are presumptively associated with exposure to herbicide agents, no nexus opinions are needed. In conclusion, service connection for IHD and diabetes type II are granted. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.307, 3.309(e). MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Janofsky, Associate Counsel