Citation Nr: 18155953 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 15-09 081 DATE: December 6, 2018 ORDER New and material evidence having been received, the claim for service connection for diabetes mellitus is reopened. Service connection for diabetes mellitus is granted. FINDINGS OF FACT 1. In April 2002, the RO denied the Veteran’s claim for service connection for diabetes listing the absence of service in the Republic of Vietnam as the only reason; the Veteran did not appeal or file any new evidence related to the cause of his diabetes within one year of the April 2002 decision. 2. The evidence added to the record since April 2002 includes the Veteran’s description of his in-service activities while stationed in Thailand, which placed him near the perimeter. 3. The Veteran had a diagnosis of diabetes mellitus during the pendency of the claim on appeal. 4. The Veteran served in Thailand during the Vietnam Era with records confirming service on the Royal Thai Air Force Base (RTAFB) Ubon and additional statements indicating service at RTAFB Udorn. 5. Based upon his regular duties while in Thailand, the Veteran is considered to have been exposed to herbicides. CONCLUSIONS OF LAW 1. New and material evidence was received to reopen the claim of entitlement to service connection for diabetes mellitus. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for service connection for diabetes mellitus, including as due to in service herbicide exposure, have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran’s claim on appeal was denied by way of a March 2014 rating decision. The Veteran died in November 2015. In September 2018, the RO notified the appellant that she has been substituted for the Veteran in his appeal. The Board is, therefore, moving forward with its decision on the merits. 1. New and material evidence having been received, the claim for service connection for diabetes mellitus is reopened. The Veteran claimed service connection for diabetes mellitus in January 2001 and the claim was denied by way of an April 2002 rating decision. The Veteran then filed a claim to reopen the service connection issue in October 2013. Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c) (2012). The 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 that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). 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). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). 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 that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). In this case, the basis of the RO’s April 2002 denial was the lack of a causal connection between the Veteran’s diabetes and his active service. In particular, the RO found that a presumption of exposure to herbicides was not warranted in this case because the Veteran had not served in the Republic of Vietnam during the Vietnam Era. The record at that time included the Veteran’s post-service treatment clinical records showing treatment for diabetes, his DD Form 214, his service treatment records and a November 2001 Department of Defense Verification of Service letter, which confirmed the Veteran’s service in Thailand from August 6, 1967 to May 29, 1968. The records received since the April 2002 rating decision include the Veteran’s VA Form 9 received in March 2015. At that time, he explained the nature of his duties while stationed in Thailand. In particular, he recognized his daily duties to be that of an aircraft controller and warning radar repair person, but he also explained that they had auxiliary security details, which would require them to support the perimeter of the base by standing guard duty. As discussed in more detail, below, this service supports the determination that the Veteran was exposed to herbicides in service. Thus, the evidence received since the April 2002 rating decision is not cumulative or redundant of the evidence previously of record. Rather, the evidence indicates a potential basis for establishing a relationship between the Veteran’s diabetes mellitus and his active service. Moreover, the evidence is material in that it was the lack of evidence of in-service exposure to herbicides that was the basis of the prior denial. Accordingly, reopening of the claim for service connection for diabetes mellitus is warranted. 2. Service connection for diabetes mellitus is granted. Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307, 3.309(e), 3.313 (2017). This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113 (2012); 38 C.F.R. §§ 3.307, 3.309. Additionally, VA’s Compensation Service has issued information concerning the use of herbicides in Thailand during the Vietnam War and determined that special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of Thailand military bases during the period beginning on January 9, 1962 and ending on May 8, 1975, where herbicide exposure should be acknowledged on a facts found or direct basis if a United States Air Force veteran served as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. Among the diseases presumptively associated with herbicide exposure under current VA regulation is diabetes mellitus, type II. 38 C.F.R. § 3.309(e). A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). During his lifetime, the Veteran claimed that presumptive service connection for diabetes mellitus, type II is warranted due to exposure to herbicides during service while stationed in Thailand. Initially, the Board finds that the Veteran indeed had a diagnosis of diabetes mellitus, type II, as is shown in his outpatient treatment records. Further, the Board finds the evidence of record is at least in relative equipoise as to the question of whether the Veteran was exposed to herbicide agents during service. The November 2001 response to the RO’s request for verification of service shows the Veteran was stationed in Thailand from August 6, 1967, to May 29, 1968. While the Veteran’s complete service personnel records are not within the file, his service treatment records indeed show he was treated while at the RTAFB Ubon. The Veteran’s DD Form 214 shows his military occupational specialty as Aircraft Control Warning Radar and Radio Repairman. The Board notes that the Veteran’s military occupational specialty is not one that would ordinarily be associated with service near the perimeter. In March 2015, however, the Veteran reported that his daily work duties involved acting as an aircraft controller and warning radio repair person. He reported that during such service, they were assigned to auxiliary security details, which often included standing guard duty to support the perimeter of the base. The Board finds no reason to question the Veteran’s credibility and the Board recognizes his competence to report where on the base he served and what duties he had. Again, the Veteran’s official records confirm his service in Thailand, on the Ubon base in particular, which is one of the bases identified as having been subject to the presence of herbicides. As such, considering all the evidence of record, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s duties while stationed at the RTAFB at Ubon, Thailand, placed the Veteran near the perimeter of the base, resulting in exposure to herbicides. Service connection for diabetes mellitus, type II as a result of herbicide exposure is, therefore, warranted on a presumptive basis. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Adamson, Counsel