Citation Nr: 1807463 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-20 688 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include whether new and material evidence has been received to reopen the claim. 2. Entitlement to service connection for ischemic heart disease. 3. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, claimed as secondary to diabetes mellitus, type II. 4. Entitlement to service connection for a bilateral eye condition, claimed as secondary to diabetes mellitus, type II. 5. Entitlement to service connection for a skin condition, claimed as secondary to diabetes mellitus, type II. 6. Entitlement to service connection for amputation of toes on the right foot, claimed as secondary to diabetes mellitus, type II. 7. Entitlement to service connection for erectile dysfunction, claimed as secondary to diabetes mellitus, type II. REPRESENTATION Veteran represented by: Tennessee Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. S. Kyle, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1967 to September 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran appeared at a hearing before the undersigned in July 2017. A transcript of the hearing is of record. The Board notes an October 2002 rating decision denied service connection for diabetes mellitus, type II, claimed as due to exposure to herbicide agents in Korea. VA did not receive a notice of disagreement or additional evidence regarding the claim within one year of notice of the decision. Thus, the October 2002 rating decision is final. 38 U.S.C. § 7105 (2014); 38 C.F.R. §§ 3.156(b), 20.302 (2017). Effective February 24, 2011, VA amended its regulation to extend a presumption of herbicide agent exposure to certain Veterans who served in Korea. 38 C.F.R. § 3.307(a)(6)(iv) (2017). Specifically, VA added a new paragraph (iv) to 38 C.F.R. § 3.307 (a)(6) that indicates personnel assigned to units that, as determined by the Department of Defense (DoD), operated in or near the Korean Demilitarized Zone (DMZ) in an area in which herbicides are known to have been applied during that period, 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. In certain instances, a regulation change of this nature requires de novo review of the underlying claim. See Spencer v. Brown, 4 Vet. App. 283 (1993), aff'd, 17 F.3d 368 (Fed. Cir. 1994) (When a law or regulation creates a new basis for establishing entitlement to benefits, a claim for service connection that asserts the new basis/theory of entitlement is a new claim that is "legally and factually distinct from the former claim," even if the claimed disease or injury is the same.). Yet, in this case, the Board finds de novo review is not warranted because the February 2011 amendment did not create a legally and factually distinct basis or theory of entitlement for the Veteran's service connection for diabetes mellitus, type II. As previously noted, the Veteran claimed service connection for diabetes mellitus, type II, prior to the February 2011 amendment, on a direct basis due to alleged herbicide agent exposure in Korea. He did not serve in a unit in Korea for which herbicide agent exposure is presumed. As such, the basis or theory for the current claim (direct service connection based on herbicide agent exposure in Korea) is the same basis or theory as the previously denied claim. Thus, new and material evidence is required to reopen the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. This issue will be discussed in more detail in the following decision. The issues of service connection for peripheral neuropathy of the bilateral lower extremities, a bilateral eye condition, a skin condition, amputation of toes on the right foot, and erectile dysfunction are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. VA has received previously unconsidered evidence since a final October 2002 rating decision that denied service connection for diabetes mellitus, type II, that relates to the basis for the prior denial and raises a reasonable possibility of substantiating the claim. 2. The Veteran served in or near the Korean DMZ during his deployment to Korea from January 1968 to January 1969. 3. The Veteran has been diagnosed as having diabetes mellitus, type II, and coronary artery disease. 4. Sound medical and scientific evidence has established that there is a positive association between herbicide agent exposure and diabetes mellitus, type II, and coronary artery disease. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the service connection claim for diabetes mellitus, type II. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for service connection for diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 3. The criteria for service connection for coronary artery disease have been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence As noted in the introduction, the Board finds new and material evidence is required to reopen the Veteran's service connection for diabetes mellitus, type II. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence is defined as existing evidence not previously submitted to the VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. The Court of Appeals for Veterans Claims (Court) has held the phrase "raises a reasonable possibility of establishing the claim" must be viewed as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Court emphasized that 38 C.F.R. § 3.156 "does not require new and material evidence as to each previously unproven element of a claim." Id. at 120. The Court further explained the provisions of 38 C.F.R. § 3.156(a) creates a "low threshold" for finding new and material evidence that is favorable to the claimant. Id. A determination of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider an underlying claim. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Therefore, regardless of the AOJ's action, the Board must address the question of whether new and material evidence has been presented to reopen a claim of service connection. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). In April 2011, shortly after VA amended its regulations to extend the presumption of herbicide agent exposure to certain veterans who served in Korea, the Veteran submitted several personnel documents and photographs suggesting he served in or near the Korean DMZ during his deployment to Korea from January 1968 to January 1969. During the July 2017 hearing before the undersigned, the Veteran provided testimony explaining his duties as a commander of a signal unit that was responsible for providing communications to U.S. forces serving in Korea required him to travel throughout the country on a consistent basis, to include trips to the Korean DMZ two to three times per week. This evidence was not of record at the time of the October 2002 rating decision that denied service connection for diabetes mellitus, type II; relates to the basis for the prior denial; and raises a reasonable possibility of substantiating the claim. Thus, it constitutes new and material evidence warranting reopening of the Veteran's service connection claim for diabetes mellitus, type II. II. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or caused by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). If a claimant was exposed to an herbicide agent during active military, naval, or air service, conditions such as ischemic heart disease and diabetes mellitus shall be presumed to be service-connected even though there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). A claimant who, during active military service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the DoD, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period is presumed to have been exposed to an herbicide agent during such service. 38 C.F.R. § 3.307(a)(6)(iv). If a claimant alleges service along the DMZ between April 1968 and July 1969, but was not in one of the units designated as presumptively exposed, VA must request verification of the location of the Veteran's unit from the Joint Services Records Research Center (JSRRC). VA Adjudication Procedures Manual (M21-1 MR), pt. IV, subpt. ii, ch. 2, sec. C.10. A claimant who is unable to prove entitlement to the presumption under 38 C.F.R. § 3.307 may still demonstrate exposure to herbicide agents on a facts found basis in efforts to establish a service connection claim. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed.Cir.1994); 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Here, the record establishes the Veteran did not serve in a unit in Korea for which herbicide agent exposure is presumed. March 2012 and January 2014 JSRRC memoranda include an analysis of the available evidence and indicate a presumption of herbicide agent exposure is not warranted based on the Veteran's service in Korea. The Veteran has conceded he did not serve in one of the units that the DoD has listed as operating in or near the Korean DMZ during the requisite period. Rather, he has asserted his duties as a commander of a signal unit that was responsible for providing communications to all U.S. forces serving in Korea required him to travel throughout the country on a consistent basis, to include trips to the Korean DMZ two to three times per week. The Veteran has provided performance evaluations and other documentary evidence that corroborate his testimony. In these reports, the Veteran's supervisors commended him for his ability to maintain effective command and control of his unit despite the fact that its detachments were "scattered . . . throughout the Republic of South Korea." The Veteran has also submitted temporary duty orders that show travel to inspect unit personnel and equipment, as well as several photographs that he took while providing support to units operating in or near the Korean DMZ. The Board finds this documentary evidence when combined with the Veteran's credible testimony is sufficient to establish that it is at least as likely as not that he served in or near the Korean DMZ during his deployment to Korea from January 1968 to January 1969. Resolving reasonable doubt in favor of the claimant, the Board finds herbicide agent exposure should be conceded in the Veteran's case. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). The record includes medical evidence that conclusively establishes the Veteran has been diagnosed as having diabetes mellitus, type II, and coronary artery disease, which constitutes a form of ischemic heart disease as defined in 38 C.F.R. § 3.309(e). Sound medical and scientific evidence has established that there is a positive association between herbicide agent exposure and these conditions. As the record establishes the Veteran was at least as likely as not exposed to an herbicide agent during his service in Korea, the Board finds service connection for diabetes mellitus, type II, and coronary artery disease is warranted on a direct basis. ORDER The service connection claim for diabetes mellitus, type II, is reopened. Entitlement to service connection for diabetes mellitus, type II, is granted. Entitlement to service connection for coronary artery disease is granted. REMAND The foregoing decision grants service connection for diabetes mellitus, type II. The Veteran has claimed service connection for several conditions that are known complications of diabetes. See 38 C.F.R. § 4.119, Diagnostic Code 7913. The Board is required to rely on independent medical evidence to support its findings with regard to these issues. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). VA's duty to assist requires efforts to obtain an opinion addressing secondary service connection for the claimed disabilities. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination, or examinations if necessary, to obtain an opinion addressing whether the claimed peripheral neuropathy of the bilateral lower extremities, bilateral eye condition, skin condition, amputation of toes on the right foot, and/or erectile dysfunction are at least as likely as not proximately due to, or aggravated by, a service-connected disability or disabilities, to include diabetes mellitus, type II, and coronary artery disease. The opinion must address both causation and aggravation to be deemed adequate. The examiner is advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. The examination report must include a complete rationale for the opinion provided. 2. Readjudicate the issues on appeal. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then, return the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or 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 (2014). ______________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs