Citation Nr: 18156897 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-57 657 DATE: December 11, 2018 ORDER New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is granted. Entitlement to service connection for coronary artery disease (CAD) is granted. Entitlement to service connection for diabetes mellitus type II is granted. Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities is granted. FINDINGS OF FACT 1. In an August 1988 rating decision, the claim of entitlement to service connection for peripheral neuropathy of the bilateral lower extremities was denied on the basis that it was not incurred in, and or otherwise related to service. 2. The evidence added to the record since the August 1988 rating decision relates to an unestablished fact that is necessary to substantiate the claim of service connection for peripheral neuropathy of the bilateral lower extremities. 3. The Veteran set foot in Vietnam and on the perimeter of Royal Thailand Airforce Base in Nakhon Phanom, Thailand. 4. The Veteran has been diagnosed with CAD and diabetes. 5. The Veteran has been diagnosed with peripheral neuropathy of the bilateral upper and lower extremities. CONCLUSIONS OF LAW 1. The August 1988 rating decision that denied the Veteran’s claim for entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. As the evidence received subsequent to the August 1988 rating decision is new and material, the requirements to reopen the claim for peripheral neuropathy of the bilateral lower extremities have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.102, 3.156. 3. The criteria for entitlement to service connection for CAD have been met. 38 U.S.C. §§ 1110, 1116, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 4. The criteria for entitlement to service connection for diabetes have been met. 38 U.S.C. §§ 1110, 1116, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 5. The criteria for entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1968 to September 1972. New and Material Evidence 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for peripheral neuropathy of the bilateral lower extremities In order for evidence to be sufficient to reopen a previously disallowed claim, it must new and material. 38 U.S.C. § 5108. Under the relevant regulation, “new” evidence is defined as evidence not previously submitted to agency decision-makers. “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. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration 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. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). In this case the Veteran is claiming entitlement to service connection for peripheral neuropathy of the bilateral lower extremities. The Veteran’s claim was previously denied by the RO in August 1988 on the basis that it was not incurred in, or otherwise related to service. He did not appeal this decision, nor did he submit any new and material evidence within a year of receiving the decision. See Buie v. Shinseki, 24 Vet. App. 242 (2011). This represents the last final denial of the claim. For the following reasons, reopening of the claim is warranted. The evidence now includes new medical evidence, including new VA medical treatment records, and additional supporting lay statements, which raise the possibility that his bilateral lower extremity neuropathy is related to his service or his now service connected diabetes. This evidence relates to an unestablished fact necessary to support the claim and raises a reasonable possibility of substantiating the claim. Therefore, reopened of the claim is warranted. Service Connection 2. Entitlement to service connection for CAD 3. Entitlement to service connection for diabetes The Veteran asserts that his CAD and diabetes are related to his exposure to herbicide agents, specifically, Agent Orange. VA laws and regulations provide that, if a Veteran was exposed to Agent Orange during service, certain listed diseases, including ischemic heart disease and diabetes, are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). A Veteran who “served in the Republic of Vietnam” between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). VA has validly interpreted the “service in Vietnam” language of the statute and regulation as requiring that a Veteran must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). The absence of service in Vietnam does not preclude a Veteran from alleging that he has ischemic heart disease and diabetes that are related to Agent Orange exposure. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). In this case, the Veteran has been diagnosed with CAD, which is a type of ischemic heart disease, and diabetes. His service personnel records reflect that he did not serve in Vietnam but was stationed at the Royal Thailand Airforce Base in Nakhon Phanom, Thailand. Current VA policy is that exposure to Agent Orange will be conceded for veterans who served with the U.S. Air Force in a position which required duty on the air base perimeter (to include security police, dog handlers, etc.). Exposure will also be conceded for any U.S. Army veteran who served with a military police (MP) unit, or with a military police occupational specialty, on the RTAFBs in U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang. See, e.g., VA Adjudication Procedures Manual, M21-1, Part IV.ii.1.H.5.b (June 5, 2017). While VA’s Adjudication Manual is not binding on the Board, DAV v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) (“The M21-1 Manual is binding on neither the agency nor tribunals”), it is useful in this case in establishing the Veteran’s exposure to Agent Orange. The Veteran claims both that he set foot in Vietnam on undocumented missions there and that he worked on the perimeter of the Royal Thailand Airforce Base in Nakhon Phanom. Although the Veteran’s military occupational specialty was administrative specialist, he stated that his duties also included perimeter security. In Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 176 (2016), the Court held that the Board must consider lay, historical, and archival evidence, in addition to service records, in determining whether there was service in Vietnam or exposure to herbicide agents elsewhere. In that case, there was evidence from multiple expert witnesses that it was common for aircraft flying to Thailand to stop in Vietnam. Id. The Veteran has offered competent, credible, and consistent statements indicating that he set foot in Vietnam and on the perimeter of the Nakhon Phanom. Although there is nothing specifically in the service records supporting these statements, there is no such requirement in the law or regulations and every veterans case must be considered based on factors including the basis of places, types, and circumstances of service as shown by service records. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). The evidence is at least evenly balanced as to whether the Veteran set foot in Vietnam and on the perimeter of the Nakhon Phanom. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for CAD and diabetes is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 4. Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities is granted. Service connection is warranted for disability proximately due to or the result of service connected disease. 38 C.F.R. § 3.310(a). The July 2013 and April 2016 VA treatment records contain diagnoses of diabetic peripheral neuropathy, indicating that it affects the bilateral upper and lower extremities. There is no evidence to the contrary. As the Veteran has been granted service connection for diabetes in the decision herein, entitlement to service connection for these disabilities secondary to diabetes, on a causation basis, is therefore warranted. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel