Citation Nr: 18153570 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-28 845 DATE: November 28, 2018 ORDER New and material evidence has been presented for the Veteran’s claim for service connection for diabetes mellitus, type II, and the claim is reopened. New and material evidence has been presented for the Veteran’s claim for service connection for prostate cancer and the claim is reopened. New and material evidence has been presented for the Veteran’s claim for service connection for bilateral peripheral neuropathy and the claim is reopened. New and material evidence has been presented for the Veteran’s claim for service connection for erectile dysfunction, and the claim is reopened. Entitlement to service connection for diabetes mellitus, type II, is granted. Entitlement to service connection for prostate cancer is granted. Entitlement to service connection for bilateral peripheral neuropathy of the lower extremities associated with diabetes mellitus, type II, is granted. REMANDED Entitlement to service connection for erectile dysfunction, to include as secondary service-connected disabilities, is remanded. Entitlement to service connection for hypertension, to include as due to exposure to herbicides and as secondary to service-connected disabilities, is remanded. Entitlement to service connection for ulcers is remanded. Entitlement to service connection for liver disease is remanded. Entitlement to service connection for dementia is remanded. Entitlement to service connection for depression is remanded. Entitlement to an initial rating in excess of 10 percent for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. A March 2006 rating decision denied service connection for diabetes mellitus, type 2; the Veteran did not an initiate an appeal to this decision and new and material evidence was not received within one year. 2. Evidence submitted since the March 2006 rating decision, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and therefore raises a reasonable possibility of substantiating the claim for diabetes mellitus, type II. 3. A March 2006 rating decision denied service connection for prostate cancer; the Veteran did not an initiate an appeal to this decision and new and material evidence was not received within one year. 4. Evidence submitted since the March 2006 rating decision, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and therefore raises a reasonable possibility of substantiating the claim for prostate cancer. 5. A March 2006 rating decision denied service connection for bilateral peripheral neuropathy; the Veteran did not an initiate an appeal to this decision and new and material evidence was not received within one year. 6. Evidence submitted since the March 2006 rating decision, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and therefore raises a reasonable possibility of substantiating the claim for bilateral peripheral neuropathy. 7. A March 2006 rating decision denied service connection for erectile dysfunction; the Veteran did not an initiate an appeal to this decision and new and material evidence was not received within one year. 8. Evidence submitted since the March 2006 rating decision, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and therefore raises a reasonable possibility of substantiating the claim for erectile dysfunction. 9. The evidence establishes that while stationed on the USS Savage in the coastal waters of Vietnam, the Veteran went ashore and, thus, is presumed to have been exposed to herbicide agents. 10. The Veteran has a current diagnosis of diabetes mellitus, type II, that is presumed due to exposure to herbicide agents. 11. The Veteran has a current diagnosis of prostate cancer that is presumed due to exposure to herbicide agents. 12. The Veteran’s bilateral peripheral neuropathy is an associated complication of his diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The March 2006 rating decision which denied service connection for diabetes mellitus, type II, is final. 38 U.S.C. § 7105 (West 2002). 2. The additional evidence received since the March 2006 rating decision is new and material, and the claim for service connection for diabetes mellitus, type II, is reopened. 38 U.S.C. 5108; 38 C.F.R. 3.156. 3. The March 2006 rating decision which denied service connection for prostate cancer is final. 38 U.S.C. § 7105 (West 2002). 4. The additional evidence received since the March 2006 rating decision is new and material, and the claim for service connection for prostate cancer is reopened. 38 U.S.C. 5108; 38 C.F.R. 3.156. 5. The March 2006 rating decision which denied service connection for bilateral peripheral neuropathy is final. 38 U.S.C. § 7105 (West 2002). 6. The additional evidence received since the March 2006 rating decision is new and material, and the claim for service connection for bilateral peripheral neuropathy is reopened. 38 U.S.C. 5108; 38 C.F.R. 3.156. 7. The March 2006 rating decision which denied service connection for erectile dysfunction is final. 38 U.S.C. § 7105 (West 2002). 8. The additional evidence received since the March 2006 rating decision is new and material, and the claim for service connection for erectile dysfunction is reopened. 38 U.S.C. 5108; 38 C.F.R. 3.156. 9. The criteria for entitlement to service connection for diabetes mellitus type II have been met. 38 U.S.C. § 1110, 1112, 1116; 38 C.F.R. § 3.303, 3.304, 3.307, 3.309. 10. The criteria for entitlement to service connection for prostate cancer have been met. 38 U.S.C. § 1110, 1112, 1116; 38 C.F.R. § 3.303, 3.304, 3.307, 3.309. 11. The criteria for entitlement to service connection for bilateral peripheral neuropathy of the lower extremities have been met. 38 U.S.C. § 1110, 1112, 1116; 38 C.F.R. § 3.303, 3.304, 3.30, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1962 to January 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in August 2013 by the Department of Veterans Affairs (VA) Regional Office (RO). New and material evidence to reopen claims for service connection for diabetes mellitus type II, prostate cancer, peripheral neuropathy and erectile dysfunction. In a March 2006 rating decision, the RO denied service connection for diabetes mellitus, type II, prostate cancer, peripheral neuropathy and erectile dysfunction on the basis of a lack of diagnosis, nexus, and evidence of herbicide exposure. A notice of disagreement was not received within the subsequent one-year period. Moreover, new and material evidence was not received within one year. Importantly, the Veteran did not notify VA that additional VA treatment records were in existence. See Turner v. Shulkin, 29 Vet. App. 207 (2018). Therefore, the RO’s March 2006 rating decision is final. 38 U.S.C. § 7105. Prior unappealed decisions are final. However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that, when “new and material evidence” is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decisionmakers. 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. 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. 38 C.F.R. § 3.156(a). According to the Court, the pertinent VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed, unless the evidence is inherently incredible or consists of statements which are beyond the competence of the person making them. Justus v. Principi, 3 Vet. App. 510 (1992); Meyer v. Brown, 9 Vet. App. 425 (1996); King v. Brown, 5 Vet. App. 19 (1993); Duran v. Brown, 7 Vet. App. 216 (1994). Evidence may be considered new and material if it contributes to a more complete picture of the circumstances surrounding the origin of a veteran’s injury or disability, even where it will not eventually convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Thus, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. There is a low threshold for reopening a claim, one that does not require that a claimant submit a medical opinion to reopen a claim if the new evidence causes VA to obtain a medical opinion. 38 C.F.R. § 3.156(a) (2018). Rather, if there is newly submitted evidence of current disability which in connection with the prior evidence, raises a reasonable possibility of substantiating the claim, and the element of a nexus could be established by providing a VA examination, the claim may be reopened. That reopening then triggers VA’s duty to assist in providing the claimant with a VA examination. Since the last prior final decision, evidence has been added to the record. The additional evidence of record includes: an undated medical treatment record from Dr. A.A. filed May 9, 2013; a copy of a letter from the Veteran’s commanding officer filed May 9, 2013; a letter from JSRRC filed June 7, 2013, an August 2013 statement from the VA Under Secretary; medical records from St. Mary’s hospital received July 2017; statements in support of claim received June 20, 2016, September 16, 2013, and October 16, 2012. In this case, the additional lay and medical evidence suggests a basis for service connection. That evidence raises a reasonable possibility of substantiating the claim, as it corroborates the Veteran’s account of Vietnam service and provides diagnoses. The Board finds that new and material evidence has been received since March 2006 rating decision. Therefore, the claims of entitlement to service connection for diabetes mellitus, type II, prostate cancer, bilateral peripheral neuropathy of the lower extremities and erectile dysfunction are reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). VA regulations provide that a Veteran who, during active military, naval, or air 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 during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116 (f). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including diabetes mellitus II and prostate cancer, shall be service-connected, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. §§ 1113, 1116 and 38 C.F.R. §§ 3.307 (d), 3.309(e). “Service in Vietnam” for purposes of applying the herbicide presumption includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation to Vietnam between January 9, 1962 and May 7, 1975. 38 U.S.C. § 1116 (a)(3); 38 C.F.R. §§ 3.307 (a)(6)(iii), 3.313(a) (2014). The Federal Circuit, in Haas v. Peake, 525 F.3d 1168, 1187-1190 (Fed. Cir. 2008), confirmed VA’s interpretation of 38 C.F.R. § 3.307 (a)(6)(iii) as requiring a service member’s presence at some point on the landmass or inland waters of Vietnam in order to benefit from the regulation’s presumption. It has been VA’s interpretation of § 3.307(a)(6)(iii) that service aboard a ship that anchored temporarily in an open deep-water harbor or port is not by itself sufficient to establish in-country service for the herbicide exposure presumption. The VA Adjudications Procedures Manual, the M21-1, indicates that in cases where a Veteran claims exposure to herbicides during service aboard a ship in offshore waters, “[s]ervice aboard a ship that anchored in an open deep-water harbor does not constitute inland waterway service or qualify as docking and is not sufficient to establish presumptive exposure to herbicides, unless the Veteran served as a coxswain aboard ship and reports going ashore during anchorage.” VA Adjudication Manual, M21-1, IV.ii.2.C.10.k [M21-1]. When a Veteran claims exposure to herbicides during service aboard a Navy or Coast Guard ship that operated on the offshore waters of the Republic of Vietnam, exposure may be established on a presumptive basis if evidence shows that while the Veteran was aboard, 1) the ship docked on the shores or piers of the Republic of Vietnam; or 2) the ship operated temporarily on the Republic of Vietnam inland waterways; or 3) the ship operated on close coastal waters for extended periods, with evidence that crew members went ashore, or smaller vessels from the ship went ashore regularly with supplies or personnel. In addition, the Veteran must have stated that he went ashore when the ship docked or operated on close coastal waters for extended periods, if the evidence shows the ship docked to the shore or pier. Id. This category includes large ocean-going ships of the Blue Water Navy that conducted a variety of missions along the close coastal waters of Vietnam for extended periods of time. Documentary evidence has been obtained for all ships in this category showing that some crewmembers went ashore. Examples of such vessels include hospital ships, harbor repair ships, mine sweepers, and seaplane tenders. Also included are combat ships, such as destroyers, when evidence shows that crewmembers went ashore. Because shore activity of some crewmembers has been documented, any Veteran aboard the ship at the time of documented shore activity will be eligible for the presumption of exposure if that Veteran provides a lay statement of personally going ashore. Id. VA’s Compensation and Pension Service has identified a number of Navy and Coast Guard ships to include the USS Savage, which meet these requirements are now subject to the presumption of exposure to herbicides under 38 C.F.R. §§ 3.307 and 3.309. (See also updated ship list, released November 2, 2018). Specifically, the USS Savage sent crew ashore to provide medical assistance to villages from January 1 to 15, 1966 and from June 12 to September 15, 1966. Entitlement to service connection for diabetes mellitus, type II and prostate cancer Here, the Veteran contends that service connection is warranted for diabetes mellitus, type II, and prostate cancer as a result of exposure to herbicides during active service. See June 2016 VA Form 9. The Veteran has current diagnoses of diabetes mellitus, type II, and prostate cancer. See private treatment record, problem list, Dr. A.A. filed May 9, 2013. The Veteran’s service personnel records show that he was stationed on the USS Savage until January 3, 1966. Again, the USS. Savage is one of the vessels identified on list released by VA Compensation and Services. Such list states that the USS Savage sent crew members ashore during the period that the Veteran was on board. Moreover, an August 2013 statement from the VA Under Secretary for Benefits also indicated that a report of the ship’s deck logs shows that a motorized whaleboat was sent ashore in July 1965 with some crewmembers. The letter continued that if the Veteran was stationed on the ship at this time and submitted a statement that he went ashore, he would receive presumption of Agent Orange exposure. Importantly, service personnel records do document that the Veteran was stationed on the USS Savage in July 1965. These documented activities along with the Veteran’s submitted lay statements that he went ashore meet the criteria to prove presumptive exposure to herbicides aboard a Navy or Coast Guard ship that operated on the offshore waters of the Republic of Vietnam. See VA Adjudication Manual, M21-1, IV.ii.2.C.10.k [M21-1]. See also 38 U.S.C. § 1116 (a)(3); 38 C.F.R. §§ 3.307 (a)(6)(iii), 3.313(a). As the Veteran has current diagnoses of diabetes mellitus, type II, and prostate cancer, and as he is presumed to have been exposed to herbicides, the Veteran has met all requisite criteria to establish service connection for diabetes mellitus, type II, and prostate cancer on a presumptive basis as due to herbicide exposure. 38 U.S.C. § 1116 (f), 38 C.F.R. §§ 3.307 (a)(6)(iii). Therefore, the Veteran’s claims are granted. Entitlement to service connection for bilateral peripheral neuropathy of the lower extremities Importantly, the medical evidence of record also shows that the Veteran suffers from diabetic peripheral neuropathy of the lower extremities. Thus, as service connection has been awarded for diabetes, service connection is also warranted for bilateral peripheral neuropathy of the lower extremities as an associated complication of his diabetes. REASONS FOR REMAND Entitlement to service connection for erectile dysfunction is remanded. The Veteran was diagnosed with erectile dysfunction in a private treatment note dated February 19, 2013. The Veteran has not had a VA examination to determine the etiology of the disorder. A remand is necessary in order to determine if the Veteran’s erectile dysfunction is either directly related to his active service, or secondary to his now service-connected diabetes mellitus, type II and/or prostate cancer. Entitlement to service connection for hypertension is remanded. The Veteran contends that his current hypertension is due to his military service, to include exposure to herbicides in Vietnam. As discussed above, the Veteran has a presumed exposure to herbicides. Current VA regulations do not provide that hypertension is a presumptive disability associated with herbicide exposure. However, the Board found that the (NAS), in a 2006 and 2008 update, concluded that there was “limited or suggestive evidence of an association” between hypertension and herbicide exposure. See 75 Fed. Reg. 32,540, 32,549 (June 8, 2010); 75 Fed. Reg. 81,332, 81,333 (December 27, 2010). As such, the Board finds that a VA examination with medical opinion is necessary to address whether the Veteran’s current hypertension was caused by or etiologically related to herbicide exposure during active military service. Entitlement to service connection for ulcers is remanded. In October 2012, the Veteran filed a claim for “ulcers.” See VA Form 21-526 Application for Compensation and Pension. The Veteran has been diagnosed with both a single duodenal ulcer (Private treatment note by Dr. J. August 28, 2013), multiple gastric ulcers (See private treatment note, Dr. J.A. May 2007) and diabetic ulcers of the extremities. Clarification is needed to determine the scope of the Veteran’s claim. Following the clarification, a VA examination is also needed in order to determine the etiology of the claimed ulcers. Entitlement to service connection for liver disease is remanded. In an August 2013 rating decision, the RO in pertinent part denied a claim for entitlement to service connection for a liver disease. In September 2013, the Veteran submitted notice of disagreement (NOD) as to this issue. A Statement of the Case (SOC) has not been issued and the Board is required to remand, rather than refer, these issues to the attention of the AOJ. See 38 C.F.R. § 19.9(c); Manlincon v. West, 12 Vet. App. 238 (1999). Entitlement to service connection for dementia is remanded. The Veteran asserts that dementia is related to his active service, to include exposure to herbicides. A June 2013 VA psychiatric examination verified a diagnosis of mild early dementia. However, there was no etiological opinion regarding the Veteran’s dementia. The Veteran has also submitted two statements regarding exposure to lead paint, and no attempt to verify such exposure is of record. The Veteran specifically asserted that he was exposed to lead paint aboard the USS Savage. A remand is required in order to determine whether the Veteran was also exposed to lead paint. A neuropsychiatric examination is required in order to determine if the Veteran’s dementia may be due to PTSD, exposure to herbicides and/or lead paint aboard the USS Savage or otherwise result from the Veteran’s active service. Entitlement to service connection for depression is remanded. It is unclear from the record whether the Veteran has a current diagnosis of depression and whether such is related to service; or associated with and/or secondary to his PTSD. The June 2013 VA examiner did not find a diagnosis of depression. However, past clinical records show a diagnosis of major depressive disorder and a March 2013 clinical record showed a diagnosis of unspecified mood disorder. As such, the Board finds that a VA examination is necessary to determine whether the Veteran has depression that is either related to service or secondary to his PTSD. Entitlement to an initial rating in excess of 10 percent for PTSD is remanded. The Veteran was last afforded a VA examination addressing his PTSD in June 2013, over fives years ago. In a July 2017 statement, the Veteran, through his representative, asserted that his PTSD had increased in severity since the Veteran was last examined by VA. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his PTSD. The matters are REMANDED for the following actions: 1. Furnish the Veteran and his representative a Statement to the Case that addresses the issue of entitlement to service connection for liver disease. This issue should be returned to the Board only if the Veteran perfects a timely appeal in accordance with 38 U.S.C. § 7105 (2018). 2. Contact the Veteran’s representative and determine the scope of the Veteran’s claim for ulcers, and determine if the claim is in reference to the Veteran’s diabetic ulcers or gastric ulcers. 3. Contact the JSRRC in order to determine if the Veteran was exposed to lead paint while aboard the USS Savage. 4. Obtain all updated and outstanding VA and private treatment records. 5. Schedule the Veteran for appropriate VA examination(s) in order to determine the etiology of his erectile dysfunction, hypertension, and ulcers. For each disability, the examiner must opine as to whether it is at least as likely as not a) related to an in-service injury, event, or disease to include as a result of presumed herbicide exposure; b) proximately due to service-connected disabilities; or c) aggravated beyond their nature progression by service-connected disabilities. 6. Schedule the Veteran for a neuropsychiatric examination to determine the etiology of his dementia. The examiner must opine as to whether the Veteran’s dementia is at least as likely as not a) related to an in-service injury, event, or disease, to include exposure to lead paint and/or herbicides; b) proximately due to service-connected disabilities; or c) aggravated beyond its natural progression by service-connected disabilities. 7. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected PTSD alone. The examiner must also determine whether the Veteran has met the diagnostic criteria for depression at any point during the course of the appeal since October 2012. If so, the examiner must opine as to whether the Veteran’s depression is at least as likely as not a) related to an in-service injury, event, or disease; b) part and parcel of or associated with his service-connected PTSD; c) proximately due to service-connected disabilities; or d) aggravated beyond its natural progression by service-connected disabilities. J.N. MOATS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Leigh Hoover