Citation Nr: 18151862 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 15-10 358A DATE: November 20, 2018 ORDER New and material evidence having been received, the claim for service connection for ischemic heart disease (claimed as high cholesterol) is reopened. To that extent, the appeal is granted. New and material evidence having been received, the claim for service connection for hypertension (claimed as high blood pressure) is reopened. To that extent only, the appeal is granted. New and material evidence having been received, the claim for service connection for diabetes mellitus type II is reopened. To that extent only, the appeal is granted. REMANDED Entitlement to service connection for ischemic heart disease (claimed as high cholesterol) is remanded. Entitlement to service connection for hypertension (claimed as high blood pressure) is remanded. Entitlement to service connection for diabetes mellitus type II is remanded. FINDINGS OF FACT 1. An April 2011 rating decision found that additional evidence was necessary to establish service connection for ischemic heart disease (claimed as high cholesterol). 2. The evidence received since the April 2011 denial relates to an unestablished fact necessary to substantiate the claim for service connection for ischemic heart disease (claimed as high cholesterol), and raises a reasonable possibility of substantiating the claim. 3. An April 2011 rating decision found that additional evidence is necessary to establish service connection for hypertension (claimed as high blood pressure). 4. The evidence received since the April 2011 denial relates to an unestablished fact necessary to substantiate the claim for service connection for hypertension (claimed as high blood pressure), and raises a reasonable possibility of substantiating the claim. 5. An April 2011 rating decision found that additional evidence was necessary to establish service connection for diabetes mellitus type II. 6. The evidence received since the April 2011 denial relates to an unestablished fact necessary to substantiate the claim for service connection for diabetes mellitus type II, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the previously denied claim for service connection for ischemic heart disease (claimed as high cholesterol), and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156(a) (2017). 2. New and material evidence has been received to reopen the previously denied claim for service connection for hypertension (claimed as high blood pressure), and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156(a) (2017). 3. New and material evidence has been received to reopen the previously denied claim for service connection for diabetes mellitus type II, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1965 to March 1969 and December 1976 to July 1990. This matter comes to the Board of Veterans' Appeals (Board) from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Generally, a final decision issued by the agency of original jurisdiction may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c), (d) (2012). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108 (2012). In a claim to reopen, VA must notify a claimant of the information and evidence necessary to reopen the claim and establish entitlement to the underlying claim for the benefit being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy that requirement, VA is required to look at the bases for the denial in the prior decision and provide the claimant with a notice letter that describes what information and evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. "New evidence" is evidence that has not previously been reviewed by VA adjudicators. "Material evidence" is existing 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 of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). In determining whether evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Board must review all of the evidence submitted since the last final disallowance of the claim on any basis in order to determine whether the claim may be reopened. Hickson v. West, 12 Vet. App. 247 (1999). The phrase "raise a reasonable possibility of substantiating the claim" does not create a third element for new and material evidence; rather, it provides guidance in determining whether submitted evidence meets the new and material requirements. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA has a duty to assist a claimant in the development of a claim. That duty includes assisting in obtaining service medical records and pertinent treatment records and providing an examination or obtaining an opinion when necessary. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). 1. Whether new and material evidence has been received to reopen a claim for service connection for ischemic heart disease (claimed as high cholesterol). The Veteran claims that in-service events, specifically exposure to herbicides caused his current ischemic heart disease (claimed as high cholesterol). The claim for service connection for ischemic heart disease (claimed as high cholesterol) was previously finally denied on a direct and presumptive basis in an April 2011 rating decision. The claim was denied because while the Veteran was stationed at U-Tapao Airfield, a Thailand Air Force Base that has a history of exposure to herbicides, the Veteran’s MOS did not indicate he had exposure to the base’s perimeter and he did not demonstrate that the condition had manifest to a compensable degree within one year of discharge from his service in the U.S. Air Force. There is also no indication that new and material evidence was received within the one year following that decision that would have been pertinent to the issue on appeal. 38 C.F.R. § 3.156(b) (2017). Thus, the decision became final. As new evidence was received, the claim was readjudicated in October 2013, November 2015, and March 2015. The pertinent evidence received since the April 2011 denial includes a lay statement from the Veteran submitted in the appeal form on April 2015 which further explained the Veteran’s theory of exposure to herbicides while he was stationed in Thailand. In the form, the Veteran explains he was trained in all areas to provide security in case of an attack to defend and support his fellow service members, and that he participated in training that involved tours around the perimeters that would be needed to secure the installation in the event of an attack, which would explain his exposure to herbicides. Presuming the credibility of the evidence, the record now indicates that the Veteran has ischemic heart disease (claimed as high cholesterol), that may be related to service. The evidence is new, not cumulative, and relates to an unestablished fact necessary to substantiate the claim. Thus, as new and material evidence has been received, the claim for service connection for ischemic heart disease (claimed as high cholesterol) is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 2. Whether new and material evidence has been received to reopen a claim for service connection for hypertension (claimed as high blood pressure). The Veteran claims that in-service events, specifically exposure to herbicides caused his current hypertension (claimed as high blood pressure). The claim for service connection for hypertension (claimed as high blood pressure) was previously finally denied on a direct and presumptive basis in an April 2011 rating decision. The claim was denied because while the Veteran was stationed at U-Tapao Airfield, a Thailand Air Force Base that has a history of exposure to herbicides, the Veteran’s MOS did not indicate he had exposure to the base’s perimeter and he did not demonstrate that the condition had manifest to a compensable degree within one year of discharge from his service in the U.S. Air Force. There is also no indication that new and material evidence was received within the one year following that decision that would have been pertinent to the issue on appeal. 38 C.F.R. § 3.156(b) (2017). Thus, the decision became final. As new evidence was received, the claim was readjudicated in October 2013, November 2015, and March 2015. The pertinent evidence received since the April 2011 denial includes a lay statement from the Veteran submitted in the appeal form on April 2015 which further explained the Veteran’s theory of exposure to herbicides while he was stationed in Thailand. In the form, the Veteran explains he was trained in all areas to provide security in case of an attack to defend and support his fellow service members, and that he participated in training that involved tours around the perimeters that would be needed to secure the installation in the event of an attack, which would explain his exposure to herbicides. Presuming the credibility of the evidence, the record now indicates that the Veteran has hypertension (claimed as high blood pressure), that may be related to service. The evidence is new, not cumulative, and relates to an unestablished fact necessary to substantiate the claim. Thus, as new and material evidence has been received, the claim for service connection for hypertension (claimed as high blood pressure) is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. Whether new and material evidence has been received to reopen a claim for service connection for diabetes mellitus type II. The Veteran claims that in-service events, specifically exposure to herbicides caused his current diabetes mellitus type II. The claim for service connection for diabetes mellitus type II was previously finally denied on a direct and presumptive basis in an April 2011 rating decision. The claim was denied because while the Veteran was stationed at U-Tapao Airfield, a Thailand Air Force Base that has a history of exposure to herbicides, the Veteran’s MOS did not indicate he had exposure to the base’s perimeter and he did not demonstrate that the condition had manifest to a compensable degree within one year of discharge from his service in the U.S. Air Force. There is also no indication that new and material evidence was received within the one year following that decision that would have been pertinent to the issue on appeal. 38 C.F.R. § 3.156(b) (2017). Thus, the decision became final. As new evidence was received, the claim was readjudicated in October 2013, November 2015, and March 2015. The pertinent evidence received since the April 2011 denial includes a lay statement from the Veteran submitted in the appeal form on April 2015 which further explained the Veteran’s theory of exposure to herbicides while he was stationed in Thailand. In the form, the Veteran explains he was trained in all areas to provide security in case of an attack to defend and support his fellow service members, and that he participated in training that involved tours around the perimeters that would be needed to secure the installation in the event of an attack, which would explain his exposure to herbicides. Presuming the credibility of the evidence, the record now indicates that the Veteran has diabetes mellitus type II, that may be related to service. The evidence is new, not cumulative, and relates to an unestablished fact necessary to substantiate the claim. Thus, as new and material evidence has been received, the claim for service connection for diabetes mellitus type II is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS FOR REMAND The Veteran contends that his claimed disabilities are due to his in-service exposure to herbicides, or that his claimed disabilities were due to disabilities that resulted from herbicide exposure. Additional development is required. Preliminarily, the Board notes that the evidence does not appear to support the conclusion that the Veteran is presumed to have been exposed to herbicides during service. However, this does not preclude him from providing evidence that he was directly exposed to herbicides during service. 38 C.F.R. § 3.309(e). In a lay statement from the Veteran, submitted in the appeal form on April 2015, the Veteran explains that while he was stationed in Thailand he was trained to provide security in case of an attack to defend and support his fellow service members, and that he participated in training that involved tours around the perimeters that would be needed to secure the installation in the event of an attack, which would explain his exposure to herbicides. While the lay statement is useful evidence, it does not appear that the Veteran is entitled to the presumption of exposure to herbicides under the current regulations. However, this does not prevent a medical professional from presenting competent medical evidence supporting the Veteran's assertions. Specifically, given the number of disabilities the Veteran has that have been recognized by VA as diseases entitled to presumptive service connection with conceded exposure, a competent medical opinion that concludes that the Veteran’s disabilities are consistent with such exposure would be of probative value in this case. Given the Veteran’s additional statements regarding his duties around the perimeter of the base, further adjudication would also be necessary on a presumptive basis. The Veteran should therefore first be scheduled for a VA examination to address whether his disabilities are consistent with exposure to herbicides. As all of the Veteran's claims are premised on exposure to herbicides, all of the Veteran's claims must be returned pending this additional development. Since the claims file is being returned it should be updated to include any recent VA treatment records that are not of record. 38 C.F.R. § 3.159 (c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers, to obtain the treatment records identified by the Veteran. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA examination by an examiner with appropriate expertise to provide an opinion on the etiology of the Veteran's claimed disabilities. Any and all studies, tests, and evaluations that are deemed necessary by the examiner should be performed. The claims folder, including a copy of this remand, should be reviewed by the examiner. The examination report should note review of these records and that VA has not yet conceded that the Veteran was exposed to herbicides. The examiner should then: (a) Provide a specific diagnosis for any claimed disability. (b) Provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that based on the lack of a family history of these diseases, and relevant post-service exposure to herbicides, the Veteran was exposed to herbicides during service that resulted in his claimed conditions. The VA examiner should note that VA has not yet conceded that the Veteran was exposed to herbicides, and address the Veteran's risk factors for his disabilities. The complete rationale for any opinion offered should be provided. If the examiner finds that he or she cannot provide an opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. 4. After the above development has been completed, perform any additional development deemed necessary in light of any new evidence obtained. This development may include, but is not limited to, the scheduling of additional VA examinations. 5. After the above development has been completed, readjudicate the Veteran's claims, to include on the basis of presumed exposure to herbicides based on the Veteran’s additional statements concerning his participation in various training that involved tours around the perimeters that would be needed to secure the installation in the event of an attack. If the benefits sought remains denied, provide the Veteran and his representative with a supplemental statement of the case, and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. R. Montalvo, Associate Counsel