Citation Nr: 1808097	
Decision Date: 02/08/18    Archive Date: 02/20/18

DOCKET NO.  14-24 945	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus, type II.

2.  Entitlement to service connection for diabetes mellitus, type II.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

M. Espinoza, Associate Counsel


INTRODUCTION

The Veteran had active service from September 1968 to August 1969 and from August 1969 to March 1972. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. 

In May 2017, the Veteran presented testimony before a Travel Board hearing before the undersigned Veterans Law Judge.  The May 2017 Board hearing transcript is of record and reflects the record was held open for 60 days from the date of the hearing to allow the Veteran to submit additional evidence.  However, as no additional evidence was received in the allotted period, the Board may proceed with appellate review.  

In addition, during the May 2017 Board hearing, the Veteran submitted additional evidence and waived consideration of such by the Agency of Original Jurisdiction (AOJ).  See 38 C.F.R. § 1304 (c) (2017).  In this regard, if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration.  See VBA Fast Letter 14-02.  Here, the Veteran's substantive appeal was filed after February 2, 2013, and the record reflects that the additional evidence was submitted by the Veteran.  Nonetheless, as noted above, the Veteran also waived review by the AOJ of the additional evidence. 

However, since the May 2014 statement of the case issued for this appeal, additional evidence was associated with the claims file, to include an October 2015 Agent Orange Peripheral Neuropathy Review Checklist signed by a physician which appears to have been developed by VA.  Nevertheless, in light of the favorable reopening of the claim and the remand of the claim on the merits for further development, there is no prejudice to the Veteran in this regard.  

The reopened claim of entitlement to service connection for diabetes mellitus, type II, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1.  An April 2011 rating decision, in part, confirmed and continued a previous denial of entitlement to service connection for diabetes mellitus, type II, and the Veteran did not appeal that decision in a timely manner, and no new and material evidence was submitted within the appeal period.

2.  Evidence received since the final April 2011 rating decision is new, relates to an unsubstantiated issue necessary to substantiate the claim, and raises a reasonable possibility of substantiating the Veteran's claim.


CONCLUSIONS OF LAW

1.  The April 2011 rating decision, which in part, denied entitlement to service connection for diabetes mellitus, type II, is final.  38 U.S.C. § 7105 (c) (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017).

2.  New and material evidence sufficient to reopen the previously denied claim of service connection for diabetes mellitus, type II, has been received.  38 U.S.C. § 5108 (West 2012); 38 C.F.R. §§ 3.156 (a), 20.1105 (2017). 



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

With respect to the Veteran's claim decided herein, given the grant of the claim to reopen the claim for service connection for diabetes mellitus, type II, discussion of the impact of VA's statutory and regulatory notice and duty to assist provisions on the issue, including pursuant to 38 C.F.R. § 3.103 (c)(2) (2017) and Bryant v. Shinseki, 23 Vet App 488 (2010), is not necessary, and any deficiencies, if any exist, are harmless.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

In August 2008, the Veteran originally submitted claim for entitlement for service connection for diabetes mellitus, type II, which was denied in a March 2009 rating decision.  The Veteran did not appeal the March 2009 rating decision in a timely manner, and no new and material evidence was submitted within the appeal period.  Thus, the March 2009 rating decision is final.  38 U.S.C. § 7105(c) (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017).  

In July 2010, the Veteran, in part, submitted a claim to reopen the claim for service connection for diabetes mellitus, type II.  An April 2011 rating decision, in part, confirmed and continued the previous denial of entitlement to service connection for diabetes mellitus, type II, and the Veteran did not appeal the decision in a timely manner, and no new and material evidence was received within the appeal period.  Id.  In fact, no additional evidence or communication from the Veteran was associated with the claims file until the Veteran again filed a claim to reopen the claim for service connection for diabetes mellitus, type II, in August 2012.  Thus, the April 2011 rating decision is final.  Id.  

As noted above, in August 2012, the Veteran filed a claim to reopen the claim for entitlement to service connection for diabetes mellitus, type II.  A May 2013 rating decision denied reopening of the claim on the basis that new and material evidence had not been received.  The Veteran's appeal of this decision forms the basis of the present appeal.  

The Board must determine whether new and material evidence has been presented before it can reopen a claim to re-adjudicate the issue going to the merits.  38 C.F.R. § 20.1105 (2017).  The issue of reopening a claim goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo.  In other words, the Board is required to first consider whether new and material evidence is presented before the merits of a claim can be considered regardless of the RO's action.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).

VA may reopen and review a claim, which has been previously denied, if new and material evidence is received, or submitted by or on behalf of a Veteran.  38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (a) (2017).  New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing 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 prior 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).  When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 512-13 (1992).  Additionally, the law should be interpreted to enable reopening of a claim, rather than to preclude it.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).

With respect to the April 2011 rating decision, which in part, confirmed and continued the prior denial of service connection for diabetes mellitus, type II, the evidence of record consisted of service treatment records, a copy of a prior Board decision for another Veteran which, in part, addressed tactical herbicide use at Fort Gordon, Georgia, an application for benefits from the Veteran and statements from the Veteran.

New evidence added to the record since the April 2011 rating decision, includes media articles regarding the use of tactical herbicides (colloquially known as Agent Orange) at Fort Gordon, Georgia, a May 2013 response from Joint Services Records Research Center (JSRRC) for tactical herbicide exposure at Fort Gordon, Georgia, May 2017 testimony from the Veteran, and additional statements from the Veteran.  Specifically, in May 2017 testimony, the Veteran alleged in-service tactical herbicide exposure from places other than Fort Gordon, Georgia, as he had previously claimed.  In this regard, the Veteran testified he believed that he was exposed, during August 1969 to October 1969, to Agent Orange at Fort Knox, Kentucky, through bivouac overnight camping on bare ground and while going through streams and flooded rivers.  He further testified that in May 1970, when he was stationed in Frankfurt, Germany, he exposed to tactical herbicides, or other chemicals, as he was trained to prepare radios, by applying desiccant to the connections, for shipment to Vietnam so that such were protected from moisture and humidity.  Without addressing the merits of this evidence, the Board finds that the new evidence goes to the issue of whether the Veteran may have had chemical and/or tactical herbicide exposure, and it is presumed credible for the limited purpose of reopening the claim.  Justus, 3 Vet. App. at 512-13.  Thus, this evidence is both new as it has not been previously considered by VA, and material, as it raises a reasonable possibility of substantiating the Veteran's claim.  Accordingly, the claim is reopened.  See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a).


ORDER

New and material evidence having been received, the claim for entitlement to service connection for diabetes mellitus, type II, is reopened, and to that extent only, the appeal is granted.


REMAND

As discussed above, the Veteran has alleged exposure to tactical herbicides and/or chemicals while stationed at Frankfort, Germany in May 1970 and exposure to tactical herbicides in August 1969 to October 1969 while stationed at Fort Knox, Kentucky, as well as tactical herbicide exposure at Fort Gordon, Georgia.  As noted above, the AOJ obtained a May 2013 response from JSSRC regarding herbicide exposure at Fort Gordon, Georgia; however, the JSRRC coordinator has not made a formal finding that sufficient information required to verify herbicide exposure does not exist.  Furthermore, development regarding the Veteran's alleged chemical and/or tactical herbicide exposure in Frankfort, Germany and Fort Knox Kentucky has not been conducted.  In this regard, the Veteran's service records reflect service Germany beginning in May 1970 and service at Fort Knox, Kentucky from August 1969 to October 1969.  

VA's Adjudication Procedures Manual provides that when a veteran provides the approximate dates of the asserted tactical herbicide exposure, as well as the location and nature of such exposure, this information is to be furnished to the Compensation Service via e-mail at VAVBAWAS/CO/211/AGENTORANGE and request a review of DoD's inventory of herbicide operations to determine whether herbicides were used as claimed.  See VBA Manual, M21-1, IV.ii.1.H.7.a. (updated November 21, 2016).  If the Compensation Service is unable to confirm that the herbicides were so used, then the information is to be submitted to the JSRRC to determine whether such exposure can be verified.  If the JSRRC is unable to verify the exposure, the case must be referred to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist.  Thus, on remand, this additional development should be undertaken. 

Furthermore, additional development should be conducted under M21-1, IV.ii.1.I.6. (updated August 17, 2017) for environmental hazards other than Agent Orange.  If chemical exposure is established by the evidence, a VA examination should be obtained with respect to a relationship between the chemical exposure and diabetes mellitus, type II.  

Additionally, in May 2017 testimony, the Veteran referenced private treatment from a retired physician, Dr. Larry Hendricks, and testified he had possession of his private treatment records from this provider.  As noted above, the Veteran was afforded a period of 60 days to submit such records.  Nevertheless, as the claim is remanded for other matters, the Veteran should be afforded another opportunity to submit his private medical records, from Dr. Larry Hendricks, and with another opportunity to identify outstanding, relevant private treatment records and authorize their release to VA.  38 U.S.C. § 5103A (b); 38 C.F.R. § 3.159 (c)(1); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992). 

Finally, in May 2017 testimony, the Veteran reported VA treatment records from the Saginaw VA Medical Center (VAMC) beginning in the 1980s or 1990s, which are not of record.  Furthermore, in his August 2012 application for benefits, the Veteran reported treatment from the Saginaw VAMC.  In this regard, the earliest VA treatment records associated with the record are dated in June 1972 and VA treatment records were most recently associated with the record in November 2006.  Thus, on remand, any and all VA treatment records from the Saginaw VAMC (not already of record), to include from the 1980s or 1990s, should be obtained and associated with the claims file.  See 38 U.S.C. § 5103A (c); 38 C.F.R. § 3.159 (c)(2); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).

Accordingly, the case is REMANDED for the following actions:

1.  Obtain any and all VA treatment records from the Saginaw VAMC (not already of record), to include from the 1980s or 1990s, and associate these records with the claims folder.  All attempts to obtain these records must be documented in the claims file.  The Veteran and his representative must be notified of any inability to obtain the requested documents.

2.  Afford the Veteran another opportunity to submit his private medical records, from Dr. Larry Hendricks, and with another opportunity to identify outstanding, relevant private treatment records and authorize their release to VA.  All attempts to obtain these records must be documented in the claims file.  The Veteran and his representative must be notified of any inability to obtain the requested identified documents.

3.  Attempt to verify the Veteran's alleged chemical and/or tactical herbicide exposure while stationed at Frankfort, Germany, Fort Knox, Kentucky and Fort, Gordon, Georgia, in following the procedures set forth in VBA Manual, M21-1, IV.ii.1.H.7.a. and M21-1, IV.ii.1.I.6.  All requests and responses received should be associated with the claims file.

4.  If and only if, chemical exposure is established, schedule the Veteran for a VA examination to determine any etiological relationship between chemical exposure in service and diabetes mellitus, type II.  All pertinent symptomatology and findings must be reported in detail.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  The complete record, to include a copy of this Remand and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination.  The examiner is requested to opine as to whether it is at least as likely as not that the Veteran's current diabetes mellitus is etiologically related to chemical exposure in service. A rationale must be provided for the opinion expressed. 

5.  Finally, after undertaking any other development deemed appropriate, adjudicate the reopened claim, de novo.  If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an 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 matter 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 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 (West 2012).




______________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs