Citation Nr: 18158649 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 16-53 402 DATE: December 17, 2018 ORDER New and material evidence having been presented, reopening of the claim for service connection for diabetes mellitus, type II is granted. New and material evidence having been presented, reopening of the claim for service connection for an eye disability, as secondary to the claimed diabetes mellitus is granted. REMANDED Entitlement to service connection for a bone disability, claimed as due to herbicide exposure is remanded. Entitlement to service connection for an eye disability, claimed as secondary to diabetes mellitus is remanded. Entitlement to service connection for ischemic heart disease, claimed as due to herbicide exposure is remanded. Entitlement to service connection for diabetes mellitus, type II, claimed as due to herbicide exposure and secondary to the service-connected sarcoidosis is remanded. Entitlement to service connection for transient ischemic attacks, claimed as due to herbicide exposure is remanded. Entitlement to service connection for peripheral neuropathy, left upper extremity, claimed as due to herbicide exposure and secondary to diabetes mellitus is remanded. Entitlement to service connection for peripheral neuropathy, right upper extremity, claimed as due to herbicide exposure and secondary to diabetes mellitus is remanded. Entitlement to service connection for peripheral neuropathy, right lower extremity, claimed as due to herbicide exposure and secondary to diabetes mellitus is remanded. INTRODUCTION The Veteran served on active duty from August 1973 to August 1977. FINDINGS OF FACT 1. An April 2010 rating decision denied the claims of entitlement to service connection for diabetes mellitus and an eye disability; the Veteran did not appeal the decision. 2. Evidence subsequently received includes evidence that is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the claims. CONCLUSIONS OF LAW 1. New and material evidence has been presented to reopen a claim of entitlement to service connection for diabetes mellitus. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 2. New and material evidence has been presented to reopen a claim of entitlement to service connection for an eye disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 U.S. Court of Appeals for Veterans Claims (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). The RO initially denied service connection for diabetes mellitus and an eye disability in an April 2010 rating decision, based in part on its determination that the evidence failed to show the Veteran was exposed to herbicides in service. The Veteran was notified of the denial by a letter dated in the same month. He did not appeal the denial. However, in February 2011, the Veteran again claimed service connection was warranted for diabetes mellitus and an eye disability. The evidence of record in August 2010 consisted of the Veteran’s statements, service treatment records (STRs), outpatient treatment records from the Memphis VAMC, and private treatment records. The evidence subsequently provided includes additional statements from the Veteran, VA outpatient treatment records, as well as several articles and memoranda that indicate herbicides may have been sprayed and stored at bases in which the Veteran was stationed. In sum, these records provide additional information relative to the Veteran’s potential exposure to herbicides in service. The Board finds the above noted evidence to be new and material. This follows, because the evidence relates to previously unestablished elements that are necessary to grant entitlement to service connection for diabetes mellitus, as well as the eye disability claimed to be consequentially related to his diabetes mellitus. Accordingly, reopening of the claims for service connection for diabetes mellitus and an eye disability is warranted. REASONS FOR REMAND As noted above, the Veteran has alleged several of the disabilities presently on appeal are the direct result of exposure to the herbicide colloquially referred to as Agent Orange while he was stationed at Keesler and Eglin Air Force Bases (AFBs). Therefore, the Board finds a determination as to the probability of his claimed exposure is necessary at the outset. A review of his official military personnel file (OMPF) confirms his assignment to the claimed locations. His DD-214 indicates the Veteran’s Air Force Specialty was Air Traffic Controller. The Veteran has submitted several articles and other correspondence, which supports his contention that herbicides were used at those facilities. In particular, the Veteran submitted an article titled “Air Force Admits Agent Orange Spraying in Florida in 1962-1970.” This article highlights numerous locations in which herbicides were sprayed, loaded, stored, or disposed of at Eglin AFB. The article also notes that in 1974 relatively high levels of dioxin were found in the testing area, and dioxin contaminated animals were observed from 1973-1978. The article further notes that one area in which herbicides were sprayed and disposed of was located roughly one-half mile from the main base, and a quarter mile from the runway, and that as late as 1992 contaminated soil was still found in that area. The Veteran submitted a second article titled “Agent Orange/Herbicide Used Outside of Vietnam.” This article indicates certain presumed locations in which herbicides were sprayed. In particular, the article indicates Agents Orange and Blue were sprayed on the firing range and in “Viet Cong Village.” The Veteran also provided a VA memorandum, which is titled “Herbicide Tests and Storage in the U.S.” This memorandum indicates a two-square mile test area was sprayed at Eglin AFB from 1962-1970, and that in 1968 testing was performed to determine the “spread factor,” which focused on determining how far the chemical spread when dropped. The Board observes that this testing was likely performed in response to the lawsuit noted in the article titled “Air Force Admits Agent Orange Spraying in Florida in 1962-1970.” This lawsuit was reportedly filed by several local cotton farmers at that time, who alleged the herbicides sprayed on the base contaminated their crops in locations outside the base. By way of a terse September 2012 memorandum, the RO determined there was a lack of information required to corroborate the Veteran’s exposure to Agent Orange. In sum, the RO determined Agent Orange was tested and stored at Eglin AFB from 1962 to 1970, but the Veteran served from August 1973 to August 1977. The RO wholly failed to explain how or why the Veteran could not have been exposed to herbicide during his time at that base. In addition, the RO did not discuss or consider the Veteran’s reports of potential exposure to herbicides during his time at Keesler AFB. Further, in numerous correspondence, the Veteran has indicated that “Viet Cong Village” was a tent area that was created for refugees fleeing persecution in Vietnam. The Veteran has indicated this area was sprayed with herbicides to quickly prepare the area for Vietnamese refugees, and that in September of 1975 he performed volunteer work there to assist in preparations for Hurricane Eloise. To date, the RO has not initiated development to determine when the area known as “Viet Cong Village” was sprayed. In this respect, the Board notes that the United States Court of Appeals for Veterans Claims recently determined that VA is required to conduct fact-based assessments regarding the probability of herbicide exposure even with regards to veterans who claim exposure outside of Republic of Vietnam. See Gray v. McDonald, 27 Vet. App. 313 (2015). More importantly, the Board notes that M21-1, Part IV, Subpart ii, Chapter 1, Section H, Sub-Section 7 specifically articulates certain development procedures that must be performed by the RO when a veteran claims exposure to herbicides in locations other than the Republic of Vietnam, the Korean DMZ, or Thailand. In particular, this manual excerpt indicates that when a veteran provides details of the dates, locations, and nature of their claimed exposure, the RO should email these facts to Compensation Service and the Joint Services Records Research Center (JSRRC) in order to corroborate the veteran’s reports. Though the Court recently determined the Board may not rely on the M21-1 as a substantive rule in denying claims based on herbicide exposure, the Board may nonetheless require the RO to conduct all indicated development in accordance with the M21-1 in order to corroborate herbicide exposure. See Overton v. Wilkie, U.S. Vet. App., No. 17-0125 (September 19, 2018). In this case, the Veteran has provided numerous correspondence detailing his circumstances of exposure both at Keesler and Eglin AFBs. As such, the Board finds the above-noted development should be conducted to corroborate the Veteran’s reports and obtain a thorough fact-based assessment of the probability of the Veteran’s exposure to herbicides in service. Finally, the Board also notes that by way of a recent March 2017 correspondence, the Veteran asserted a secondary theory of service connection for his diabetes mellitus. In particular, the Veteran has claimed his diabetes mellitus may be consequentially related to his use of prednisone to treat his service-connected sarcoidosis. The Board acknowledges that no VA examination was provided and no VA medical opinion was obtained in response to the Veteran’s diabetes mellitus claim. VA must provide a medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159 (c)(4)(i). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. The Veteran’s outpatient treatment records from the Memphis VAMC confirm he has been diagnosed with diabetes mellitus, type II since November 1998. As such, the Board finds a VA examination and medical opinion is necessary prior to final adjudication of this matter. On remand, all relevant outstanding medical records should be obtained. 38 U.S.C. § 5103A (c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, this case is REMANDED for the following actions: 1. Undertake any further steps necessary to obtain additional records that would assist in corroborating the Veteran’s reports of exposure to herbicides at Keesler and Eglin AFBs in accordance with M21-1, Part IV, Subpart ii, Chapter 1, Section H, Subsection 7. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e) and M21-1, Part IV, Subpart ii, Chapter 1 Section H. 2. Thereafter, furnish a detailed description of the Veteran’s exposure to herbicides while stationed at Keesler and Eglin AFBs, to the Director of Compensation Service and the JSRRC for corroboration. The Director of Compensation Service is asked to review all evidence submitted by the Veteran and perform any additional development deemed necessary to corroborate the Veteran’s reports of herbicides being stored, sprayed, and otherwise dispensed with at Keesler and Eglin AFBs. Then, the Director is asked to provide a thorough fact-based advisory opinion. Specifically, please state whether it is at least as likely as not (50 percent or greater probability) that the Veteran was exposed to herbicides during his time at the above-noted facilities. A complete rationale should be provided for any conclusion expressed. In this respect, and to the extent possible, the Director is asked to support any conclusions expressed with scientific facts and data. The Board observes that such an opinion may require an assessment and report of human exposure to such herbicides by an expert in such matters. 3. The Veteran should be afforded a VA examination by an examiner with sufficient expertise to determine the etiology of the Veteran’s diabetes mellitus. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on a review of the Veteran’s pertinent history and the examination results, the examiner should provide an opinion as to whether there is a 50 percent or better probability that the diabetes mellitus: a) originated during the Veteran’s period of active service or is otherwise etiologically related to his active service; b) was caused by his service-connected sarcoidosis, as a result of his use of prednisone; or c) was permanently worsened by his service-connected sarcoidosis, as a result of his use of prednisone. (Continued on the next page)   The examiner must provide the rationale for each proffered opinion. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. After completing the above actions, and any other development as may be indicated, the Veteran’s claims should be readjudicated. If the claims remain denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Fraser, Counsel