Citation Nr: 1807206 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-33 120 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Whether new and material evidence has been submitted sufficient to reopen a previously denied and final claim for diabetes mellitus, type II. 2. Entitlement to service connection for diabetes mellitus, type II ("diabetes") claimed as due to Agent Orange exposure. 3. Whether new and material evidence has been submitted sufficient to reopen a previously denied and final claim for leiomyosarcoma. 4. Entitlement to service connection for leiomyosarcoma ("sarcoma") claimed as due to Agent Orange exposure. 5. Entitlement to service connection for coronary artery disease claimed as due to Agent Orange exposure. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Talamantes, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1961 to March 1981. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a July 2016 travel board hearing. A transcript of the hearing has been associated with the file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The AOJ denied service connection for diabetes and sarcoma in February 2009; statements in support of claim, private treatment records, and a VA examination submitted between March 2011 and April 2012, when considered credible for purposes of reopening, relate to unestablished facts necessary to substantiate these service connection claims. 2. Resolving reasonable doubt in favor of the Veteran, he was present on the landmass of Vietnam during the Vietnam era. 3. The Veteran is presumed to have been exposed to certain herbicide agents, including Agent Orange, and there is a presumption of service connection for diabetes mellitus, type II, from which the Veteran currently suffers and for which he currently receives treatment. 4. The Veteran is presumed to have been exposed to certain herbicide agents, including Agent Orange, and there is a presumption of service connection for leiomyosarcoma, from which the Veteran currently suffers and for which he currently receives treatment. 5. The Veteran is presumed to have been exposed to certain herbicide agents, including Agent Orange, and there is a presumption of service connection for coronary artery disease, from which the Veteran currently suffers and for which he currently receives treatment. CONCLUSIONS OF LAW 1. The February 2009 rating decision that denied service connection for diabetes and sarcoma was final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2017). 2. New and material evidence has been received to reopen the claim of service connection for diabetes. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. New and material evidence has been received to reopen the claim of service connection for sarcoma. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 4. The criteria for service connection for diabetes have been met. 38 U.S.C. §§1101, 1110, 1111, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 5. The criteria for service connection for sarcoma have been met. 38 U.S.C. §§1101, 1110, 1111, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 6. The criteria for service connection for coronary artery disease have been met. 38 U.S.C. §§1101, 1110, 1111, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). New and Material Evidence By way of a February 2009 rating decision, the RO denied service connection for diabetes and sarcoma. The Veteran did not appeal this decision and no additional evidence was timely submitted; therefore, the February 2009 rating decision is final. See U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.302, 20.1103. In order to reopen a finally disallowed claim, new and material evidence must be submitted. See 38 U.S.C. § 5108; see also 38 C.F.R. § 3.156. Evidence added to the file since the February 2009 denial includes the Veteran's statements in support of claim, private treatment records, and a VA examination. These records are new because they were not previously considered by agency decision makers. They are relevant to the Veteran's present claims on appeal, as they document a current diabetes disability, a current sarcoma disability and his contentions relating the disabilities to service, which are considered credible for purposes of reopening. As the evidence received since the RO's February 2009 denial includes new and material evidence, the criteria to reopen and reconsider these claims are met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). Legal Criteria Service connection may be granted for a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain listed disabilities, such as diabetes and coronary artery disease, may be presumed to have been incurred during active military service if manifested to a degree of 10 percent within the first year following 90 days or more active service. 38 U.S.C. §§ 1101, 1112, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). In addition, service connection for certain disabilities may be presumed for those exposed to particular herbicide agents. Veterans exposed to Agent Orange or other listed herbicide agents are presumed service-connected for certain conditions, including diabetes, type II, soft-tissue sarcoma and ischemic heart disease, even if there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). For VA purposes, soft tissue sarcoma associated with herbicide agent exposure includes leiomyosarcoma. Ischemic heart disease associated with herbicide agent exposure includes coronary artery disease. 38 C.F.R. § 3.309(e). VA regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116 (2012); 38 C.F.R. § 3.307(a)(6)(iii) (2017). For purposes of applying the presumption of exposure to herbicide agent under 38 C.F.R. § 3.307(a)(6)(iii), the service member must have actually been present on the landmass or the inland waters of Vietnam during the Vietnam era. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008); cert. denied, 555 U.S. 1149 (2009). VA procedures for verifying exposure to herbicides in Thailand during the Vietnam Era are detailed in the VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H ("M21-1"). VA has determined 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. 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. See M21-1, Part IV.ii.1.H.5.a. A section of this manual addresses herbicide exposure in Thailand during the Vietnam Era. (In this regard, the sense of the word "herbicide" as used in the manual is understood to mean "herbicide agent" as used in the regulation.) The manual directs rating specialists to concede herbicide agent exposure to those who served in the U.S. Air Force at a number of Royal Thai Air Force Bases. 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 military occupational specialty (MOS), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10(q). A veteran who, during active military service, served in a unit that operated in or near the Korean demilitarized zone (DMZ) between April 1, 1968, and August 31, 1971, in an area where herbicides were known to have been sprayed shall be presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6)(iv), 3.309. Despite the foregoing, when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not necessarily accorded to each piece of evidence contained in the record; every item of evidence does not necessarily have the same probative value. In determining whether service connection is warranted for a disability, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background and Analysis The Veteran contends that his diabetes, sarcoma, and coronary artery disease are a result of his time in active service. Specifically, he contends that these conditions are a result of Agent Orange exposure while serving during the Vietnam era when he stopped at Tan Son Nhut Air Force Base when he traveled between Japan and Thailand. He stated that he stopped at Tan Son Nhut on every trip, each time deplaning and spending time on the ground. He also contended that his exposure was a result of being stationed at Korat Station in Thailand where he worked as an aircraft systems technician. During the hearing, he testified that he spent time near the perimeter fence of the airbase. The Veteran also contends that exposure to Agent Orange could have occurred when he was at the demilitarized zone (DMZ) in Korea in 1967 or 1968. See July 2016 Hearing Transcript. Turning to the evidence of record, there are medical treatment records that indicate a diagnosis of diabetes mellitus, type II, a diagnosis of leiomyosarcoma, and a diagnosis of coronary artery disease. See May 2005 private medical record, February 2013 VA examination, December 2016 VA medical record, and March 2017 VA medical record. Therefore, there is competent medical evidence establishing that the Veteran has a current diagnosis for all the issues on appeal during the pendency of this appeal. Resolution of the Veteran's appeal turns on whether his current disabilities are attributable to his military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). See Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). Here, the evidence fails to show the presence of any claimed disability during service or within the first post service year. Additionally, the Veteran does not contend that his diabetes, sarcoma, or coronary artery disease had its onset in service. Therefore, service connection on a direct basis is not warranted. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Thus, at primary issue in this case is the determination of whether or not the Veteran is entitled to a presumption of exposure to herbicide agent based on service during the Vietnam era. The Veteran's DD Form 214 does not reflect Vietnam service, but notes that the Veteran was awarded the Vietnam Service Medal (VSM) with 2 bronze stars. His military personnel records show he had temporary duty in Thailand in 1965 (where he was flown from Japan) and in 1966. The Veteran testified under oath his travel included stops at Tan Son Nhut Airbase in Vietnam. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). His detailed testimony with respect to his time at Tan Son Nhut is credible. Although not documented in any other evidence of record, in view of the Veteran's testimony, with the resolution of reasonable doubt in favor of the Veteran on this point, it may be concluded the Veteran was present on the landmass of Vietnam during the Vietnam era. Therefore, notwithstanding the lack of confirmation, the Board finds that the above evidence is at least in equipoise as to whether the Veteran was physically present in the Republic of Vietnam. Given this finding, the presumptions concerning Agent Orange exposure, and his current diagnoses, the Board finds that service connection for diabetes, sarcoma, and coronary artery disease is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The petition to reopen the claim of entitlement to service connection for diabetes mellitus, type II, as secondary to Agent Orange exposure is granted. Service connection for diabetes mellitus, type II, as secondary to Agent Orange exposure is granted. The petition to reopen the claim of entitlement to service connection for leiomyosarcoma as secondary to Agent Orange exposure is granted. Service connection for leiomyosarcoma as secondary to Agent Orange exposure is granted. Service connection for coronary artery disease as secondary to Agent Orange exposure is granted. ____________________________________________ M. E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs