Citation Nr: 18158334 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 17-01 144 DATE: December 14, 2018 ORDER New and material evidence having been received, the claim of entitlement of service connection for diabetes mellitus is reopened, the appeal is granted to this extent only. REMANDED Entitlement to service connection for residuals of prostate cancer, to include as secondary to exposure to radiation, asbestos, hazardous chemicals, and/or an herbicide agent is remanded. Entitlement to service connection for diabetes mellitus, to include as secondary to exposure to radiation, asbestos, hazardous chemicals, and/or an herbicide agent is remanded. FINDING OF FACT 1. Service connection for diabetes mellitus was denied in an April 2010 rating decision that was not appealed. 2. Evidence received since the April 2010 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim for service connection for diabetes mellitus. CONCLUSION OF LAW As new and material evidence has been received since the issuance of a final April 2010 decision, the criteria for reopening the claim for service connection for diabetes are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1973 to July 1976. This matter comes before the Board of Veterans’ Appeals (Board) from a December 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Whether new and material evidence has been received to reopen the claim service connection for diabetes mellitus Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. 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 which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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). Regardless of the Agency of Original Jurisdiction’s (AOJ) actions, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 to address the question of whether new and material evidence has been received to reopen the claims for service connection. This matter goes to the Board’s jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). The Board finds new and material evidence has been received sufficient to reopen the Veteran’s claim for service connection for diabetes mellitus. An April 2010 rating decision denied the Veteran’s claim for service connection for diabetes mellitus because the RO found that there was no nexus between the Veteran’s service and his diagnosed diabetes mellitus. The Veteran did not appeal, and new and material evidence was not received within the following one-year period; thus, the rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100. Since April 2010, new evidence has been added to the claims file. Pertinent to this claim includes a March 2012 statement by the Veteran that he served on a ship that carried Agent Orange. On a Radiation Risk Activity Information Sheet received in August 2012, the Veteran stated further that in addition to his previous purported exposure to radiation following a collision between ships, he also worked with chemicals while at the naval shipyard in Portsmouth, Virginia while his ship was undergoing repairs, and that he was exposed to asbestos during its removal from the ship and chipping and painting the ship. The Veteran’s March 2012 and August 2012 statements are new and material evidence. The statements are not redundant of previously considered evidence and therefore new. The evidence is material because it goes to the unestablished fact of whether the Veteran’s diabetes is related to his service. Therefore, the Veteran’s March 2012 statement is new and material evidence and sufficient to reopen the Veteran’s previously denied claim. In making the determination of materiality, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). Because the Veteran has provided new and material evidence, reopening the claim for service connection for diabetes is in order. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). REASONS FOR REMAND Entitlement to service connection for residuals of prostate cancer and diabetes mellitus, to include as secondary to exposure to radiation, asbestos, hazardous chemicals, and/or an herbicide agent The Veteran contends that he was exposed to asbestos, hazardous chemicals, and an herbicide agent in service and that it caused the Veteran’s diagnosed diabetes mellitus and residuals of prostate cancer. The Veteran contends that he was exposed to herbicide agents during service. Specifically, the Veteran contends that the he served on a ship, the U.S.S. John F. Kennedy, that carried herbicide agents. The Veteran also contends that while at Portsmouth, Virginia he worked with chemicals and was exposed to asbestos while his ship was undergoing repairs. The Board finds that more information is needed before the Board can make a fully informed decision, to include verification of exposure to hazardous chemicals, asbestos, and/or an herbicide agent. If the AOJ confirms that the Veteran was exposed to hazardous chemicals and/or asbestos, then the Veteran must be provided an examination to determine if any exposure to hazardous chemicals and/or asbestos is related to his diabetes mellitus and/or prostate cancer residuals. The matter is REMANDED for the following action: 1. Attempt to verify the Veteran’s asserted in-service exposure to herbicide agents, hazardous chemicals and/or asbestos. If more details are needed, contact the Veteran to request the information. If there is still insufficient information to verify exposure to herbicide agents, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA's inability to verify the in-service exposure to herbicide agents, hazardous chemicals, and asbestos. 2. Depending upon what exposures are verified, ensure that all current applicable VA guidelines are followed in developing these claims for adjudication. 3. If the Veteran has a confirmed exposure to asbestos and/or hazardous chemicals, then schedule the Veteran for an examination by an appropriate clinician to determine the etiology of the Veteran’s diabetes mellitus. The examiner should provide the following opinion: Whether the Veteran’s diabetes mellitus is at least as likely as not related to an in-service injury, event, or disease to include confirmed exposure to a hazardous chemical and/or asbestos. A full and complete rationale must be provided for all expressed opinions. 4. If the Veteran has a confirmed exposure to asbestos and/or hazardous chemicals, then schedule the Veteran for an examination by an appropriate clinician to determine the etiology of the Veteran’s residuals of prostate cancer. The examiner should provide the following opinion: Whether the Veteran’s prostate cancer is at least as likely as not related to an in-service injury, event, or disease to include confirmed exposure to a hazardous chemical and/or asbestos. A full and complete rationale must be provided for all expressed opinions S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Robert Batten, Associate Counsel