Citation Nr: 1807265 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-18 048 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for type II diabetes mellitus, to include as due to herbicide exposure. 2. Whether new and material evidence has been received to reopen a claim for service connection for hypertension, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Saikh, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1966 to December 1987. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board notes that the Veteran's appeal had originally included the issue of entitlement to an increased evaluation for bilateral hearing loss. ever, the Veteran did not submit a substantive appeal for that particular issue following the issuance of the April 2014 statement of the case. Instead, he limited his appeal to the issues listed on the title page. Therefore, that issue no longer remains in appellate status, and no further consideration is required. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The underlying merits of the claims for service connection for type II diabetes mellitus and hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a May 2011 rating decision, the RO denied the claims for service connection for type II diabetes mellitus and hypertension. The Veteran was notified of the decision in the same month, but he did not appeal or submit new and material evidence within the one year period thereafter. 2. The evidence received since the May 2011 rating decision, by itself, or in conjunction with previously considered evidence, relates to unestablished facts necessary to substantiate the underlying claims for service connection for diabetes mellitus and hypertension. CONCLUSIONS OF LAW 1. The May 2011 rating decision denying service connection for type II diabetes mellitus and hypertension is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 2. The evidence received since the May 2011 rating decision is new and material as to the claims for service connection for type II diabetes mellitus and hypertension, and the claims are reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In order to reopen a claim which has been denied by a final decision, a claimant must present new and material evidence. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). In the May 2011 rating decision, the RO denied the claim for service connection for hypertension, noting that the Veteran's service treatment records did not show any treatment for or diagnosis of hypertension and that the personnel records indicated that he flew over rather than served in the Republic of Vietnam. The RO also indicated that hypertension is not a condition that has been found to be related to herbicide exposure and found that the evidence did not otherwise establish a nexus between his military service and his current disorder. In the same rating decision, the RO also denied the claim for service connection for type II diabetes mellitus, finding that there was no evidence of treatment for or a diagnosis of diabetes mellitus during service. The RO also noted that, although type II diabetes mellitus is a disease associated with exposure to herbicides, the record did not reflect that the Veteran had service in the Republic of Vietnam. The Veteran was notified of the May 2011 rating decision and of his appellate rights in a letter sent to him the same month; however, he did not submit a notice of disagreement with the decision. There was also no relevant evidence received within one year of the issuance of the decision. Therefore, the May 2011 rating decisions is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156 (b), 20.200, 20.201, 20.302, 20.1103 (2017). In June 2012, the Veteran submitted an application to reopen his claims for service connection for diabetes mellitus and hypertension. He included a letter from his private medical care provider indicating that he had been diagnosed with hypertension and diabetes mellitus since 2003. In a December 2012 statement, he indicated that he was treated for hypertension in 1970 during his service. He also stated that he had service in Thailand in 1968 at the U-Tapao Royal Thai Air Force Base (RTAFB) and submitted photographs in support of his statement. The Veteran's statement and photographs regarding his service in Thailand during the Vietnam era are new and material to his claims for service connection because they raise the possibility that he was exposed to herbicides in service. VA has determined that special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of certain Thailand military bases. See VA Adjudication Procedure Manual, M21-1, Part IV.ii.1.H.5. As such, herbicide exposure should be conceded on a facts found or a direct basis if a veteran served in the Air Force in Thailand during the Vietnam era at one of the listed bases, including the U-Tapao Royal Thai Air Force Base, as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty, performance evaluations, or other credible evidence. M21-1, Part IV.ii.1.H.5.b. Although the Veteran had submitted a statement prior to the May 2011 decision which indicated that he had service in Thailand, the photographs he submitted with his new statement suggest that he might have served near the air base perimeter of the U-Tapao RTAFB. Based on the foregoing, the Board finds that the evidence submitted since the final May 2011 rating decision relates to unestablished facts necessary to substantiate the claims and raises a reasonable possibility of substantiating the claims. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110 (2010). However, as will be explained below, the Board is of the opinion that further development is necessary before the merits of the Veteran's claims can be addressed. ORDER New and material evidence having been received, the claim for service connection for type II diabetes mellitus is reopened. New and material evidence having been received, the claim for service connection for hypertension is reopened. REMAND Upon review of the record, the Board finds that additional development is necessary prior to final adjudication of the Veteran's claims for service connection for diabetes and hypertension. Specifically, the Veteran contends that he had service in Thailand at the U-Tapao RTAFB during the Vietnam Era. It is unclear from his service personnel records and his statements, whether he did have service there and the actual locations of his service. As noted above, VA has determined that special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of certain Thailand military bases. See VA Adjudication Procedure Manual, M21-1, Part IV.ii.1.H.5. If a veteran contends that he had service near the air base perimeter, the VA Adjudication Procedures Manual (M21-1) requires that the Veteran be requested to provide approximate dates, location, and nature of the alleged exposure. M21-1, Part IV.ii.1.H.5.b. The case must then be sent to the Joint Services Records Research Center (JSRRC) coordinator to issue a formal finding regarding the sufficiency of information required to verify herbicide exposure. However, a review of the file shows that such procedures have not yet been followed in this case. More importantly, it is unclear whether the Veteran actually served near the air base perimeter. Accordingly, a remand is required to determine whether there is sufficient information to verify the Veteran's claimed herbicide exposure. As noted above, hypertension is not recognized as a disease associated with herbicide exposure. However, if herbicide exposure is verified, on remand, a medical opinion would be needed which addresses the nature and etiology of the Veteran's hypertension and its relationship to herbicide exposure. Regardless of whether herbicide exposure is verified, a medical opinion and examination are still needed to address the etiology of his hypertension. In the Veteran's December 2012 statement, he indicated that he was treated for hypertension in service. A July 1967 Report of Medical History also noted that the Veteran reported having dizziness and fainting spells. Thus, the opinion should address all possible causes of the disease. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for diabetes and hypertension. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. The AOJ should request the Veteran to provide details regarding his exposure to herbicides, including information about approximate dates, location, and nature of the exposure. Any response or lack thereof should be documented in the record. The case should then be sent to the Joint Services Records Research Center (JSRRC) coordinator to issue a formal finding regarding the Veteran's herbicide exposure. If there is insufficient information to verify exposure, this should be clearly noted in the record. 3. After completing the foregoing development, the AOJ should refer the Veteran's claims file to a suitably qualified VA examiner for a VA medical opinion to determine the nature and etiology of his hypertension. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements. It should be noted that the Veteran is considered competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should address whether it is at least as likely as not that the Veteran's hypertension was causally or etiologically related to his military service, to include herbicide exposure therein (regardless of the fact that such an association may not be presumed). In rendering this opinion, the examiner should consider the Veteran's July 1967 Report of Medical History which noted dizziness and fainting spells. (The term "at least as likely as not "does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]"38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. The AOJ should review the examination report to ensure that it is in compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. 5. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. Thereafter, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs