Citation Nr: 1807486 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-04 234A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence received to reopen a previously-denied claim of entitlement to service connection for diabetes mellitus type II, to include as due to exposure to herbicides. 2. Whether new and material evidence received to reopen a previously-denied claim of entitlement to service connection for posttraumatic stress disorder (PTSD). 3. Whether new and material evidence received to reopen a previously-denied claim of entitlement to service connection for peripheral neuropathy with right foot drop. 4. Entitlement to service connection for diabetes mellitus type II, to include as due to exposure to herbicides. 5. Entitlement to service connection for posttraumatic stress disorder (PTSD). 6. Entitlement to service connection for peripheral neuropathy with right foot drop. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Cheng, Associate Counsel INTRODUCTION The Veteran served on active duty from November 14, 1961 to February 25, 1965 and February 26, 1965 to December 16, 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The issues of entitlement to service connection for (1) PTSD and (2) peripheral neuropathy with right foot drop is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a May 2003 rating decision, the RO denied service connection for diabetes mellitus, peripheral neuropathy, and PTSD based on a finding that the Veteran's discharge from his period of service between February 1965 and December 1970 was dishonorable. The Veteran appealed that decision, and in a May 2010 decision, the Board also found that the Veteran's period of service from February 1965 to December 1970 was dishonorable. The Veteran did not appeal the Board's decision, and it is final. 2. The Veteran's Certificate of Release or Discharge From Active Duty (DD Form 214) was corrected in a January 24, 2017 DD Form 215 to reflect that the Veteran's separation on December 16, 1970 was "general under honorable conditions." The Army Board for Correction of Military Records affirmed this correction in their December 2016 decision on the Veteran's application to correct his military records. This evidence relates to an unestablished fact necessary to substantiate the claims of entitlement to service connection for diabetes mellitus, peripheral neuropathy, and PTSD, and raises a reasonable possibility of substantiating the claims. 3. The Veteran has a current diagnosis of diabetes mellitus type II and is presumed to have been exposed to herbicides in service while in Vietnam. CONCLUSIONS OF LAW 1. A May 2010 Board decision, finding that the Veteran's period of service from February 1965 to December 1970 was dishonorable, is final. The Veteran has submitted new and material evidence and the claims for service connection for diabetes mellitus, type II, PTSD, and peripheral neuropathy with right foot drop are reopened. 38 U.S.C. §§ 5108, 7104(b) (2012); 38 C.F.R. § 3.156(a) (2017). 2. The criteria for entitlement to service connection for diabetes mellitus type II, to include as due to exposure to herbicides, have been met. 38 U.S.C. §§ 1110, 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 CONCLUSIONS In a November 2017 statement through his representative, the Veteran asserted he was not afforded VA medical examinations for the issues on appeal. The Veteran is not prejudiced by the absence of a VA examination on the issue decided below. The Board will remand the Veteran's claims of entitlement to service connection for (1) PTSD and (2) peripheral neuropathy with right foot drop to schedule VA examinations. Neither the Veteran nor the representative has raised any other 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 duty to assist argument). VA has satisfied its duties to notify and assist and the Board may proceed with appellate review. New and Material Evidence to Reopen Claims Whether the Veteran's character of discharge for the period of active duty service from February 29, 1965 to December 16, 1970, is a bar to eligibility for VA benefits regarding his claims for service connection for PTSD, diabetes mellitus, and peripheral neuropathy with right foot drop, amongst other claims, was previously denied in an un-appealed May 2010 Board decision. The Veteran filed new claims for entitlement to service connection for the previously denied PTSD, diabetes mellitus, and peripheral neuropathy with right foot drop in June 2011. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The provisions of 38 C.F.R. § 3.156(a) define "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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 of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to 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 Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The newly presented evidence need not be probative of all the elements required to award the claim, just probative of each element (or at least one element) that was a specified basis for the last disallowance of the claim. See Evans v. Brown, 9 Vet. App. 273, 283 (1996); see also Hodge, 155 F.3d at 1363 (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant the claim). In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a) (2012). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In a May 2003 rating decision, the regional office denied the claims of entitlement to service connection for PTSD and diabetes mellitus, right foot drop, and peripheral neuropathy. The Veteran filed a notice of disagreement in August 2003. In January 2008 the Board remanded the claim for further development. In a February 2009 decision, the Board denied the appeal, finding that the characterization of the Veteran's discharge from the period of active service from February 29, 1965 to December 16, 1970 is a bar to VA compensation benefits. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In November 2009, the Court vacated and remanded the Board's decision. In May 2010, the Board denied the appeal. This Board decision is final and binding since the Veteran did not timely perfect an appeal of the decision and the decision was not modified or reversed by the Court. 38 U.S.C. §§ 7104(b), 7252; 38 C.F.R. § 20.1100. Since the May 2010 Board decision, the Veteran has submitted additional evidence and contentions pertaining to this claim. Specifically, a December 2016 letter from the Army Board for Correction of Military Records which indicated that the Veteran's discharge upgrade was approved and affirmed. In January 2017, the Veteran was issued a DD Form 215, Correction to DD Form 214 Certificate of Release or Discharge of Active Duty, which reflected that the Veteran's discharge was upgraded to "general under honorable conditions." Given that the threshold for substantiating a claim to reopen is low, this evidence, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claims for service connection PTSD, diabetes mellitus, and peripheral neuropathy with right foot drop and raises a reasonable possibility of substantiating the claims. Thus, the claims of entitlement to service connection for (1) PTSD, (2) diabetes mellitus, and (3) peripheral neuropathy with right foot drop are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The substantive appeal (VA Form 9) was filed in February 2014 which includes an automatic waiver of AOJ review of evidence added at the time of or any time after the filing of the VA Form 9. 38 U.S.C. § 7015. The Veteran is not prejudiced by the Board's consideration of service connection for diabetes mellitus on the merits. Service Connection - Diabetes Mellitus Type II Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all 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) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). If a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for several medical conditions including diabetes mellitus, type II. 38 C.F.R. § 3.309(e). In order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service, a veteran must show the following: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; (2) that he currently suffers from a disease associated with exposure to certain herbicide agents enumerated under 38 C.F.R. § 3.309(e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307(a)(6), 3.309(e); McCartt v. West, 12 Vet. App. 164, 166 (1999). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii); see Haas v. Nicholson, 20 Vet. App. 257 (2006). In order to establish qualifying "service in the Republic of Vietnam," a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii); VAOPGCPREC 27-97. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran contends that service connection for his diabetes mellitus type II is warranted because it is related to his exposure to Agent Orange in Vietnam. Service connection for diabetes mellitus type II is warranted based on a presumption of exposure to herbicides while in Vietnam. The Veteran's Form DD Form 214 reflects that the Veteran was awarded the Vietnam Service Medal. Furthermore, service personnel records document that the Veteran had Foreign Service in Vietnam from December 8, 1966 to July 17, 1968. Diabetes mellitus type II is a disease subject to presumptive service connection based on exposure to herbicides. 38 C.F.R. § 3.309(e). The Veteran also has a current diagnosis of diabetes mellitus type II as reflected in a February 2017 VA medical record. Therefore, the Veteran is entitled to presumptive service connection under the provisions of 38 C.F.R. § 3.309(e). Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for diabetes mellitus type II have been met. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, Gilbert, 1 Vet. App. at 49. The Board expresses no opinion regarding the severity of the disability. The agency of original jurisdiction will assign an appropriate disability rating on receipt of this decision, based on applicable regulation. Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms "compensation," "rating," and "service connection" as although related, each having a distinct meaning as specified by Congress). ORDER The application to reopen a claim of entitlement to service connection for diabetes mellitus type II is granted. The application to reopen a claim of entitlement to service connection for PTSD is granted. The application to reopen a claim of entitlement to service connection for peripheral neuropathy with right foot drop is granted. Service connection for diabetes mellitus type II is granted. REMAND A review of the record discloses further development is needed with respect to the Veteran's claims for entitlement to service connection for (1) PTSD and (2) peripheral neuropathy with right foot drop. PTSD The RO previously sought to corroborate the Veteran's reported in-service PTSD stressors. In an August 2011 VA memorandum, the VA indicated that it was determined that the information required to corroborate the stressful events described by the Veteran was insufficient to send to the U.S. Army and Joint Services Records Research Center (JSRRC) and/or insufficient to allow for meaningful research of Marine Corps or National Archived and Research Administration (NARA) records. However, since the last attempt to corroborate the reported stressors, in January 2017, the Veteran was issued a DD Form 215, Correction to DD Form 214 Certificate of Release or Discharge of Active Duty, which reflected that the Veteran's discharge was upgraded to "general under honorable conditions." An October 2016 advisory opinion from the Army indicated that the Army Review Boards Agency Clinical Psychologist was asked to determine if the Veteran's separation was due to a diagnosis of PTSD or another boardable behavioral health condition. An opinion was made that given that PTSD was not recognized as a diagnosis during the Veteran's time in service, it was unlikely that he or anyone else recognized and attributed his symptoms as being combat related. It was concluded that based on a thorough review of available medical records, there was evidence to suggest that the Veteran's misconduct, being AWOL (absent without leave), is likely mitigated by PTSD, a condition which can cause avoidant behaviors such as being absent without leave. Therefore, the Board finds that another attempt to verify the claimed stressors should be made. Further, the Veteran asserted that he was not afforded a VA examination for his claimed PTSD; the Board agrees that a VA examination is warranted on remand to confirm a current diagnosis of PTSD and determine its etiology, if applicable. Peripheral Neuropathy with Right Foot Drop In a February 1997 Social Security Administration (SSA) record the Veteran indicated that he believed his peripheral neuropathy was related to Agent Orange exposure. In February 1998 VA medical records, the Veteran was seen for diabetic foot care and complained of burning pain in the right foot. The Veteran was diagnosed with a foot drop. A June 1998 SSA record reflects "fairly dramatic sensorimotor polyneuropathy" on examination, which the medical professional indicated "may be attributable" to the Veteran's diabetes. The Board notes the use of speculate language, "may be" in the June 1998 SSA record. See generally Polovick v. Shinseki, 23 Vet. App. 48. 54 (2009) (a medical opinion is speculative when it uses equivocal language such as "may well be," "could," or "might"). Service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310(a) (2017). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. As the Veteran will now be in receipt of service connection for diabetes mellitus and there is indication that the neuropathy may be related to Agent Orange and/or his now service-connected diabetes mellitus the Board finds that a VA examination is necessary to determine if the Veteran currently has peripheral neuropathy with right foot drop and its etiology, if applicable. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate records repositories to verify the Veteran's claimed in-service stressors in connection with his claim for service connection for PTSD. 2. After completing Step 1, schedule the Veteran for a VA examination for his claimed PTSD, to determine the nature, extent, and etiology of the claimed disability. Any indicated evaluations, studies, and tests deemed to be necessary by the examiner should be performed. The rationale for all opinions expressed must be provided. 3. Schedule the Veteran for a VA examination for his claimed peripheral neuropathy with right foot drop, to determine the nature, extent, and etiology of the claimed disability. Any indicated evaluations, studies, and tests deemed to be necessary by the examiner should be performed. The rationale for all opinions expressed must be provided. The examiner is asked to answer the following questions: a. Whether the Veteran has a current diagnosis of peripheral neuropathy, (to include with right foot drop)? If the answer to question "a" is "yes" please answer questions "b" and "c" below: The examiner is notified that the Veteran is service connected for diabetes mellitus type-II. b. Whether any diagnosed peripheral neuropathy is at least as likely as not (50 percent or greater likelihood) incurred in service, caused by, or otherwise related to service, to include exposure to herbicides (i.e. Agent Orange)? c. Whether any diagnosed peripheral neuropathy is at least as likely as not (50 percent or greater likelihood) proximately due to or, alternatively, aggravated (permanently worsened beyond the natural progression of the disease) by the service-connected diabetes mellitus type-II? A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. After the above is complete, conduct any additional development as needed, and readjudicate the Veteran's claims. If any claim remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative. 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 remanded by the Board of Veterans' Appeals or by the United States Court 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). ______________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs