Citation Nr: 18159448 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 16-41 331 DATE: December 19, 2018 ORDER As new and material evidence has been received, the previously denied claim of entitlement to service connection for coronary artery disease is reopened. As new and material evidence has been received, the previously denied claim of entitlement to service connection for ulcer condition in the small intestine is reopened. REMANDED Entitlement to service connection for coronary artery disease is remanded. Entitlement to service connection for ulcer condition in the small intestine is remanded. Entitlement to service connection for macular degeneration is remanded. Entitlement to service connection for a skin disorder, to include seborrheic keratosis, is remanded. Entitlement to service connection for diabetes mellitus, type II, is remanded. FINDINGS OF FACT 1. A July 2009 rating decision denied entitlement to service connection for coronary artery disease and ulcer condition in the small intestine; the Veteran submitted a notice of disagreement to initiate an appeal from this decision, but subsequently withdrew his appeal in September 2010. 2. Additional evidence received since the July 2009 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for coronary artery disease and raises a reasonable possibility of substantiating the claim. 3. Additional evidence received since the July 2009 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for ulcer condition in the small intestine and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The July 2009 rating decision that denied claims for service connection for coronary artery disease and ulcer condition in the small intestine is final. 38 U.S.C. 7105(c); 38. C.F.R. 3.104, 20.302, 20.1103. 2. The additional evidence received since the July 2009 rating decision is new and material, and the claim for service connection for coronary artery disease is reopened. 38 U.S.C. 5108; 38 C.F.R. 3.156. 3. The additional evidence received since the July 2009 rating decision is new and material, and the claim for service connection for ulcer condition in the small intestine is reopened. 38 U.S.C. 5108; 38 C.F.R. 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1965 to February 1967. The Board previously remanded this case to obtain additional VA clinical records in August 2018. Although those records have been obtained, the Board finds that additional development for the remaining issues not decided herein is still necessary. In a January 2016 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for malignant melanoma. In August 2016, the Veteran submitted a notice of disagreement (NOD) with respect to this decision. The RO has not issued a statement to the case with respect to this matter. However, the electronic Veterans Appeals Control and Locator System (VACOLS) also noted receipt of the NOD as to this claim. As VACOLS indicates additional action is pending at the RO, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a NOD had not been recognized. As VACOLS reflects that the NOD has been recognized and that additional action is pending, Manlincon is not applicable at this time. New and Material Evidence The Veteran is seeking to reopen his claims for service connection for coronary artery disease and ulcer condition in the small intestine. Service connection for these disorders was initially denied in a March 2009 rating decision. New and material evidence was received within one year so the AOJ reconsidered these issues in a July 2009 rating decision. The AOJ denied these issues as the evidence failed to show that the conditions were incurred in or caused by service; or manifested to compensable degree within one year. The Veteran submitted a notice of disagreement with this decision in June 2010. However, he subsequently withdrew his appeal of this decision in September 2010. Under these circumstances, the Board must find that the July 2009 rating decision became final. 38 U.S.C. 7105 (c); 38. C.F.R. 3.104, 20.302, 20.1103. Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. 3.104 (a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. 7105 (b) and (c); 38 C.F.R. 3.160 (d), 20.200, 20.201, 20.202, and 20.302(a). If new and material evidence is received during an applicable appellate period following a RO decision (1 year for a rating decision and 60 days for a statement of the case) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. 3.156 (b). Thus, under 38 C.F.R. 3.156 (b), “VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim.” Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). “[N]ew and material evidence” under 38 C.F.R. 3.156 (b) has the same meaning as “new and material evidence” as defined in 38 C.F.R. 3.156 (a). See Young v. Shinseki, 22 Vet. App. 461, 468 (2011). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. 7104 (b), 7105(c). 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 means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence 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 last final decision, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. 3.156 (a). In Shade v. Shinseki, 24 Vet. App 110 (2010), the United States Court of Appeals for Veterans Claims (Court) 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.” The Court further held it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would “force the Veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA.” For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the July 2009 rating decision, additional evidence has been associated with the record, including additional VA clinical records and statements from the Veteran. The medical evidence continues to show treatment for coronary artery disease and peptic ulcer disease. Significantly, the Veteran has asserted that these disorders are due to radiation exposure in service. In a March 2017 statement. He outlined such exposure in more detail than previously provided. Moreover, in a December 2018 brief, the Veteran’s representative referenced scientific literature that indicate a link between heart disease and radiation. Accordingly, the evidence received since the July 2009 rating decision is new and material as it is not redundant of evidence already of record in July 2009, and relates to the unestablished fact of whether the Veteran’s current diagnosed disorders may be related to service, to include due to in-service radiation exposure. See 38 C.F.R. 3.156 (a). As such, the issues of entitlement to service connection for coronary artery disease and ulcer condition in the small intestine are reopened. REASONS FOR REMAND Entitlement to service connection for coronary artery disease, ulcer condition of the small intestine, macular degeneration, a skin disorder, to include seborrheic keratosis and diabetes mellitus, type II, are remanded. The Veteran has asserted that these disorders are due to in-service radiation exposure while he worked as a Hawk missile system technician. Importantly, the Veteran’s January 1967 service examination prior to discharge showed that the Veteran reported working around radiation while stationed in Korea for 19 months. An August 2018 letter indicates that the AOJ was in the process of obtaining an ionizing radiation dose estimate from the VA Under Secretary of Health with respect to the Veteran’s claim for malignant melanoma. Moreover, again, in the December 2018 brief, the Veteran’s representative referenced medical literature indicating a link between radiation exposure and heart disease and diabetes mellitus. Thus, the Board finds that this dose estimate is also relevant to the current appeal. Moreover, it appears that the Veteran has also alleged exposure to what can only be described as non-ionizing radiation from radar system equipment. The United States Court of Appeals for Veterans Claims has taken judicial notice that radar equipment emits micro-wave type, non-ionizing radiation. See Rucker v. Brown, 10 Vet. App. 67, 69, 71-72 (1997) (citing The Microwave Problem, Scientific American, September 1986; Effects upon Health of Occupational Exposure to Microwave Radiation (RADAR), American Journal of Epidemiology, Vol. 112, 1980; and Biological Effects of Radiofrequency Radiation, United States Environmental Protection Agency, September 1984). Non-ionizing exposure is not the type of radiation exposure addressed by the VA regulations found at 38 C.F.R. §§ 3.309, 3.311. Thus, further development is needed regarding whether the Veteran’s disabilities are due to non-ionizing (radar-type) radiation exposure. Service treatment records also document itchy skin, sunburn and upset stomach. As pointed out in the representative’s brief, the Veteran has not been afforded VA examinations with respect to the issues on appeal. In light of the above, the Board finds that VA examinations with etiological opinions are necessary. The Veteran has also asserted that his disabilities were due to exposure to herbicides while in service. In February 2015, the AOJ sent him a letter requesting information concerning his service in Vietnam. However, the Veteran did not serve in Vietnam, but rather in Korea. The AOJ has not done any development as to whether the Veteran was exposed to herbicides while stationed in Korea. The matters are REMANDED for the following action: 1. Take all action required by VA’s internal manual with regard to claims such as this one involving claimed exposure to Agent Orange in Korea during the Vietnam Era. Specifically, request that the approximate dates, location, and nature of the Veteran’s alleged exposure to herbicides while stationed in Korea. Also, the JSRRC should attempt to verify the nature of his duties in the occupational specialty as a Hawk missile crewman and whether such duties would have placed him near the DMZ. 2. Associate with the record the radiation dose estimate prepared by the VA Under Secretary of Health. 3. Schedule the Veteran for examination(s) to determine the nature and etiology of any coronary artery disease, ulcer condition of the small intestine, macular degeneration, a skin disorder, to include seborrheic keratosis, and diabetes mellitus, type II. The examiner is asked to opine whether it is at least as likely as not that any disability is related to an in-service injury, event, or disease, including non-ionizing radiation exposure from Hawk missile radar systems. If and only if, it has been determined that the Veteran was exposed to herbicides while stationed in Korea, the examiner is asked to opine whether it is at least as likely as not that any ulcer condition of the small intestine, macular degeneration and a skin disorder, to include seborrheic keratosis, are related to in-service herbicide agent exposure. If and only if, the dose estimate shows significant ionizing radiation exposure, the examiner is asked to opine whether it is at least as likely as not that any coronary artery disease, ulcer condition of the small intestine, macular degeneration, a skin disorder, to include seborrheic keratosis, and diabetes mellitus, type II, are related to ionizing radiation exposure. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.N. Moats