Citation Nr: 18154284 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-46 012 DATE: November 29, 2018 ORDER New and material evidence sufficient to reopen the claim of service connection for a diabetes mellitus type II disability has been received, and to that extent only, the claim is granted. REMANDED Entitlement to service connection for prostate cancer, to include as due to herbicide exposure, is remanded. Entitlement to service connection for chronic lymphocytic leukemia, to include as due to herbicide exposure, is remanded. Entitlement to service connection for thyroid cancer, to include as due to herbicide agent exposure, is remanded. Entitlement to service connection for diabetes mellitus, type II, to include as due herbicide exposure, is remanded. FINDINGS OF FACT 1. In April 2003, the RO issued a rating decision denying entitlement to service connection for a diabetes mellitus type II disability. The rating decision was not appealed and new and material evidence was not received during the one-year appeal period following that decision, and thus, that decision is final. 2. Evidence received since the April 2003 rating decision regarding the Veteran’s claim for service connection for a diabetes mellitus type II disability is not cumulative or redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the Veteran’s claim of service connection for a diabetes mellitus type II disability. CONCLUSIONS OF LAW 1. The April 2003 rating decision is final. 38 U.S.C. §§ 7104, 7105 (2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2001). 2. New and material evidence sufficient to reopen the claim of service connection for a diabetes mellitus type II disability has been received since April 2003 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 served on active duty from September 1965 to January 1969. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. By way of background, the Veteran was originally denied service connection for diabetes mellitus in an April 2003 rating decision. The Veteran did not appeal that decision within one year and thus that decision became final. Service connection for thyroid cancer and prostate cancer was originally denied in an April 2014 rating decision and again in a May 2015 rating decision. Service connection for chronic lymphocytic leukemia was originally denied in the May 2015 rating decision. In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239–40 (1995). Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board….to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Petition to Reopen In April 2003, VA denied a claim of entitlement for service connection for a diabetes mellitus type II disability. The claim was originally denied because the evidence did not show a nexus to service. The RO reviewed the Veteran’s available service treatment records (STRs) and his statements regarding the disorders. The Veteran did not file a notice of disagreement (NOD) or submit new and material evidence within the one-year appeal period following those decisions. He also did not assert there was clear and unmistakable error in the rating decision. Therefore, the decision became final. 38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2001). The Veteran sought to reopen this claim in September 2013. The RO reviewed the Veteran’s available service treatment records (STRs), VA treatment records, private treatment records, and his statements regarding his low back and right knee during and after service. The RO reopened the claim but denied the claim for the diabetes mellitus type II disability in April 2014 and again in May 2015. The Veteran filed a notice of disagreement (NOD) in March 2016. VA issued a Statement of the Case (SOC) in July 2016. The Veteran perfected an appeal to the Board in September 2016. The Board is required to address new and material claims in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the AOJ may have made with regard to a new and material claim is irrelevant. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Thus, the Board will adjudicate this new and material issue in the first instance. New evidence is defined as existing evidence not previously submitted to VA since the last final denial, and material evidence is defined as 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) (2017). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Only evidence presented since the last, final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). 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). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). The evidence of record in April 2003 consisted of service records, including personnel and medical records, some VA treatment records, and lay statements from the Veteran. The evidence of record at that time did not establish a nexus back to service for a diabetes mellitus type II disability. Since the April 2003 rating decision, the Veteran’s file has additional VA medical records of substantial quantity and private medical treatment records through November 2016 that have been attached to the claims file. This includes an October 2016 VA treatment note by the Veteran’s VA oncologist who is treating his chronic lymphocytic leukemia, who also opined that the Veteran’s “leukemia, diabetes, prostate cancer, and thyroid cancer are as likely as not a result of exposure to Agent Orange during military service.” Furthermore, the Veteran has provided statements from private physicians and others with regard to his claims. This evidence is not cumulative or redundant of the evidence previously of record, and assuming its credibility for the purpose of the threshold question of whether the claim can be reopened raises a reasonable possibility of substantiating the Veteran’s claims of service connection for a diabetes mellitus type II disability. As new and material evidence has been received, reopening of the previously denied claim of entitlement to service connection for a diabetes mellitus type II disability is warranted. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). To that extent only, the claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for prostate cancer, to include as due to herbicide exposure is remanded. 2. Entitlement to service connection for chronic lymphocytic leukemia, to include as due to herbicide exposure, is remanded is remanded. 3. Entitlement to service connection for thyroid cancer, to include as due to herbicide agent exposure, is remanded is remanded. 4. Entitlement to service connection for diabetes mellitus, type II, to include as due herbicide exposure, is remanded is remanded. The Veteran is claiming entitlement to service connection for prostate cancer, thyroid cancer, chronic lymphocytic leukemia, and diabetes mellitus type II, all of which he asserts had their origins during active service while stationed at Royal Thai Air Force Base (RTAFB) Udorn, Thailand, from August 1967 to August 1968 because of exposure to herbicide agents. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In May 2010, VA published a Compensation & Pension (C&P) Service Bulletin that established “New Procedures for Claims Based on Herbicide Exposure in Thailand and Korea.” In explaining the need for the new procedures, the bulletin acknowledged that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. In August 2015, VA procedures were modified and now provide that for veterans who served during the Vietnam Era in the U.S. Air Force in Thailand at one of the listed Royal Thai Air Force Bases (RTAFBs), including Udorn, as a security policeman, security patrol dog handler, member of the security police squadron, or “otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence,... concede herbicide exposure on a direct/facts-found basis.” (Emphasis added). This allows for presumptive service connection of the diseases associated with herbicide exposure. See 38 C.F.R. § 3.309(e). The Board notes the Veteran made his claim pertinent to this appeal in February 2015, prior to the August 2015 VA issuance of the current procedures regarding possible herbicide exposure in Thailand during the Vietnam era. However, the Board also notes that presence alone in Thailand during a relevant time period where there was known use of herbicide agents is not sufficient. Because this is a remand directive and not a final Board decision, the Board takes no position at this time as to the possible presumption of exposure to herbicide agents, pending any additional evidence the Veteran may offer in the form of lay statements from buddies or other direct evidence that place the Veteran in a role necessary to establish the presumption of herbicide exposure during his service at RTAFB Udorn pursuant to the August 2015 procedures noted above. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an “in-service event, injury or disease,” or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. Here, however, while the first McLendon element is met—evidence of current disabilities have been noted in the medical records—the second element, the establishment of an “in-service event, injury or disease,” or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, has not been met. Id. Thus, a remand is necessary to further development of the Veteran’s claim that he was exposed to herbicide agents during his Vietnam-era service in Thailand from 1967 to 1968. The Veteran’s lay statements alone, provided prior to the current regulations regarding the establishment of herbicide agent exposure for Thailand service, do not currently establish the level of sufficiency necessary to establish such exposure. The record contains general descriptions of the air base along with general histories of events that occurred during the period of the Veteran’s service there. However, none of that evidence in the current record directly places the Veteran himself in a position to where he could establish exposure to herbicide agents. The Veteran has iterated that he participated in activities and tactical actions that placed him in a position where he would be exposed to herbicide agents, and so this appeal is remanded so that the Veteran can provide additional evidence, such as but not limited to statements from fellow Veterans with whom he served that can attest to his presence in the tactical action he references or other evidence that places him in a position to establish exposure to herbicide agents during his Thailand service. The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated VA medical records of the Veteran not previously obtained. Contact the Veteran and request that he identify any pertinent private treatment records not already identified and obtained and, with the appropriate authorization, attempt to obtain those records and associate them with the claims file. 2. Provide notice to the Veteran of the specific procedures and rules required of Air Force Veterans to establish exposure to herbicide agents during Thailand service in the Vietnam era, and provide sufficient opportunity for the Veteran to provide any direct evidence or witness statements that may serve to qualify the Veteran for his claim of exposure to herbicide agents. 3. Thereafter, readjudicate the issues on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Setter, Associate Counsel