Citation Nr: 18160878 Decision Date: 12/28/18 Archive Date: 12/27/18 DOCKET NO. 16-54 507 DATE: December 28, 2018 ORDER New and material has been submitted to reopen a claim for service connection for coronary artery disease to include as secondary to Agent Orange exposure. Entitlement to service connection for coronary artery disease to include as secondary to Agent Orange exposure is granted. Entitlement to service connection for diabetes mellitus to include as secondary to Agent Orange exposure is granted. REMANDED Entitlement to service connection for peripheral neuropathy of the upper and lower extremities to include as secondary to diabetes mellitus is remanded. FINDINGS OF FACT 1. In an unappealed May 2011 rating decision, the RO denied service connection for coronary artery disease to include as secondary to agent orange exposure based their finding that that the Veteran had no in serve incurrence. 2. The evidence added to the record since the May 2011 rating decision, when viewed by itself or in the context of the entire record, relates to an unestablished fact that is necessary to substantiate the claim of service connection for coronary artery disease. 3. The Veteran served in the U.S. Air Force at the Royal Thai Air Base in Ubon, Thailand, during the Vietnam Era, in August 1966, as an aviation mechanic and traveled the perimeter. 4. The Veteran has a diagnosis of coronary artery disease 5. The Veteran has a diagnosis of diabetes mellitus. CONCLUSIONS OF LAW 1. The May 2011 rating decision that continued a prior denial of service connection for coronary artery disease is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. 2. With respect to the Veteran’s claim for service connection coronary artery disease, new and material evidence has been received since the May 2011 denial. 38 U.S.C. § 5108; 38 C.F.R. § 3.158. 3. The criteria for service connection for coronary artery disease are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. . The criteria for service connection for diabetes mellitus are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from October 1971 to October 1974. The Board observes that the Veteran claims for service connection for peripheral neuropathy and diabetes mellitus were denied in an August 2006 rating decision. Within a year of this denial, the Veteran submitted additional evidence in October 2006 and November 2006 which were not addressed by the Agency of Original Jurisdiction (AOJ). For clarification sake, unlike the above noted claims, the Veteran submitted a new claim for coronary artery disease which was denied in May 2011, and following that decision, he did not submit additional evidence within a year or a timely notice of disagreement (NOD). Hence, the different procedural posture of the above claims. New and Material Evidence Initially, the Board notes that whenever a claim to reopen is filed, regardless of how it was characterized by the agency of original jurisdiction, the Board must make a de novo determination as to whether new and material evidence has been received. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). New evidence is defined as existing evidence not previously submitted to agency decision makers. 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). 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. Justu v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material has been submitted to reopen a service connection claim for coronary artery disease The Veteran was denied service connection for coronary artery disease in an May 2011 rating decision because there was no evidence that the coronary artery disease was incurred in service. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. 38 C.F.R. § 3.156(a); Shade v. Shinseki, supra. The Veteran’s statements in December 2015 that he walked the perimeter while stationed at the Ubon, Royal Thai Air Force Base is new in that it was not previously of record. It is also material because it relates to unestablished facts necessary to substantiate the Veteran’s claim for service connection for coronary artery disease. Specifically, due to the prior lack of evidence incurrence, this new evidence is material because it relates to an element that was previously not shown, presumptive exposure to agent orange. See Shade, supra. Accordingly, the Board finds that new and material evidence has been submitted, and the claim for service connection for a coronary artery disease is reopened. 38 U.S.C. § 5108. Service Connection Certain diseases, to include coronary artery disease and diabetes mellitus, may be service-connected if the Veteran was exposed to an herbicide agent during active service even though there is no record of such disease during service, provided that the requirements of 38 C.F.R. § 3.307(a)(6) are satisfied. 38 C.F.R. § 3.309 (e). Specifically, VA’s Compensation & Pension Service (C&P) has issued information concerning the use of herbicides in Thailand during the Vietnam War. See VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (M21-1MR). In a May 2010 bulletin, C&P indicated that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. As such, C&P stated that special consideration of herbicide exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. Significantly, C&P stated, “[t]his allows for presumptive service connection of the diseases associated with herbicide exposure.” The majority of troops in Thailand during the Vietnam Era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. This applies only during the Vietnam Era from February 28, 1961 to May 7, 1975. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10(q). 2. Entitlement to service connection for coronary artery disease to include as secondary to Agent Orange exposure and entitlement to service connection for diabetes mellitus to include as secondary to Agent Orange exposure The Veteran contends in his December 2015 correspondence to the Board that his duties as an aircraft mechanic placed him near or at the perimeter of the Ubon, Royal Thailand Air Base during his time stationed there in March 1974. The Veteran contends he would travel to the perimeter. The Veteran’s August 2016 VA treatment record provides evidence that the Veteran is diagnosed with both coronary artery disease and diabetes mellitus. The Board acknowledges that the Veteran did not serve in a position which VA has conceded as being exposed to herbicides on the base; however, the Board finds that the Veteran’s December 2015 statement that he would travel to the perimeter to train provides credible evidence of him being near the perimeter. Therefore, the Board finds that based on the Veteran’s competent and credible lay statement regarding his travel around the perimeter of the Ubon Royal Thailand Air Base he meets the criteria for presumption of exposure to an herbicide agent during active military service in Thailand. M21-1MR, Part IV.ii.2.C.10.q. Given that diabetes and coronary artery disease are diseases that are presumed related to herbicide exposure under 38 C.F.R. § 3.307 and 3.309(e), service connection for these conditions is warranted on this basis. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for peripheral neuropathy of the upper and lower extremities to include as secondary to diabetes mellitus is remanded. The Board notes that the Veteran has not been provided a VA examination to determine the etiology of his peripheral neuropathy of the lower and upper extremities. While a May 2015 VA treatment note provides a diagnosis of diabetes and an indication that his peripheral neuropathy may be related to his diabetes, it is not clear from the medical records in the claims file which extremities are affected by peripheral neuropathy. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). As such the Board finds that a VA examination should be provided. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his disabilities. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. Regardless of the Veteran’s response, VA treatment records should be collected from the Bay Pines, VA Medical Center (VAMC) and all associated outpatient center and clinics. In particular, the AOJ should retrieve VA treatment records from September 2016 to present should be collected. Any archived records should be retrieved from storage. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 2. After the above development is accomplished, schedule the Veteran for appropriate VA examination(s). The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner(s) as part of the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All tests, studies, and evaluations should be performed as deemed necessary by the examiner(s), and the results of any testing must be included in the examination report. After taking a detailed history from the Veteran regarding his diabetes and peripheral neuropathy and considering the pertinent information in the record in its entirety, the VA examiner should opine whether it is at least as likely as not, i.e. 50 percent probability or greater, that the Veteran’s peripheral neuropathy of his lower and upper extremities was caused or aggravated by the Veteran’s service connected diabetes or is otherwise etiologically related to the Veteran’s active service. 3. Ensure that the examination report complies with this remand and the questions presented in this request. If the report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 4. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the issues on appeal. If the benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Acosta, Counsel