Citation Nr: 1815591 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 14-27 866 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for diabetes mellitus, to include as secondary to exposure to herbicides. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Gillian A. Flynn, Associate Counsel INTRODUCTION The Veteran had active service from June 1964 to December 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In June 2017, the Veteran testified before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The issue of entitlement to service connection for diabetes mellitus, to include as secondary to exposure to herbicides, is REMANDED for further development. FINDINGS OF FACT 1. A May 2009 rating decision denied service connection for diabetes mellitus. The Veteran was notified of that decision and of his appellate rights, but he did not initiate a timely appeal. 2. The evidence received since the May 2009 decision relates to unestablished facts necessary to substantiate the claim for service connection for diabetes mellitus, and raises a reasonable possibility of substantiating the claim. 3. It is at least as likely as not that the Veteran's duties during lengthy service at U-Tapao Thai Royal Air Force Base caused him to perform duties on and near the base perimeter. 4. The Veteran is diagnosed with type 2 diabetes mellitus. CONCLUSIONS OF LAW 1. A May 2009 rating decision that denied service connection for diabetes mellitus is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the previously denied claim for service connection for diabetes mellitus. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. Service connection for diabetes mellitus, type 2, is presumed due to exposure to herbicide agents. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION New and Material Evidence Generally, a final decision issued by the agency of original jurisdiction may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c), (d) (2012). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108 (2012). New evidence is evidence that has not previously been reviewed by VA adjudicators. Material evidence is 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 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) (2017). In determining whether evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Board must review all of the evidence submitted since the last final disallowance of the claim on any basis in order to determine whether the claim may be reopened. Hickson v. West, 12 Vet. App. 247 (1999). The Veteran's claim for service connection for diabetes mellitus, to include as secondary to exposure to herbicide agents, was denied because the RO found no evidence of any complaints of, treatment for, or diagnosis of diabetes mellitus in service. In addition, the RO found no evidence in the record that the Veteran had served in Vietnam or been exposed to herbicide agents in Vietnam or Thailand. The Veteran was notified of the decision and of his appellate rights, but he did not initiate a timely appeal. There is also no indication that new and material evidence was received within the one year following that decision that would have been pertinent to the issue on appeal. 38 C.F.R. § 3.156(b) (2017). Thus, the decision became final. The pertinent evidence received since the May 2009 denial includes the Veteran's testimony at a June 2017 Board hearing that he has had diabetes mellitus since service and that he was exposed to herbicide agents on a regular basis in Thailand as part of his duties as an aircraft electrical systems specialist on the air fields at U-Tapao Air Base between December 1966 and June 1972, and also during an unanticipated one-week stay at Tan Son Nhut Air Base in Vietnam in 1970. The Veteran's lay testimony at his hearing and new evidence indicates that the Veteran's diabetes mellitus may be related to herbicide agent exposure during active service. Presuming the credibility of the new evidence for the purpose of determining whether it is material, the record now indicates that the Veteran's diabetes mellitus may have been caused or aggravated by active service. The evidence is new, not cumulative, and relates to unestablished facts necessary to substantiate the claim. Thus, as new and material evidence has been received, the claim for service connection for diabetes mellitus, to include as secondary to exposure to herbicide agents, is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017). If a Veteran was exposed to a herbicide agent during active service, Type 2 diabetes mellitus shall be presumed service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of diabetes mellitus during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309 (e) (2016). The Veteran contends that he is entitled to service connection for diabetes mellitus, to include as secondary to exposure to herbicide agents, as caused or aggravated by active service. Specifically, the Veteran asserts that he was exposed to herbicide agents on a regular basis in Thailand as part of his duties as an aircraft electrical systems specialist on air fields at U-Tapao Air Base between December 1966 and June 1972, and also during an unanticipated one-week lay over at Tan Son Nhut Air Base in Vietnam in 1970 while traveling between Thailand and the United States. Service personnel records show that the Veteran had foreign service in Thailand from December 1966 to March 1968, from December 1968 to December 1969, and from October 1970 to June 1972, and was stationed at U-Tapao Air Base. A November 16, 1970, service treatment record corroborates the personnel records. According to VA's Adjudication Procedures Manual, M21-1MR, Part IV, Subpart ii, Section 2, Subpart C, Provision 10(q), special consideration of herbicide agent exposure on a direct or factual basis should be given to Veterans whose duties placed them on or near the perimeters of Thai military bases during the Vietnam Era anytime from February 1961 to May 1975. The manual listed duties where presumptive exposure can be found because those Veterans regularly worked on the perimeter and exposure can be found if a Veteran was otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. VA Adjudication Procedures Manual, M21-1MR, Part IV, Subpart ii, Section 2, Subpart C, Provision 10(q). The VA website for Public Health for "Thailand Military Bases and Agent Orange Exposure" includes a declassified 1973 Department of Defense report "Project CHECO Southeast Asia Report: Base Defense in Thailand 1968-1972," evidencing significant use of herbicide agents on the fenced-in perimeters of bases in Thailand. http://www.publichealth.va.gov/exposures/agentorange/thailand.asp. The website indicates that Vietnam-era United States Air Force Veterans who served at U-Tapao Air Base, near the perimeter anytime between February 28, 1961, and May 7, 1975, may have been exposed to herbicide agents and may qualify for VA benefits. Special consideration of herbicide agent exposure on a facts-found or direct basis is extended to those Veterans whose duties placed them on or near the perimeters of bases in Thailand. That allows for presumptive service connection of diseases associated with herbicide agent exposure. The Veteran served several years at U-Tapao Air Force Base in Thailand, which is confirmed by the service records. The Veteran credibly testified at the hearing regarding the circumstance of his service and that his duties caused him to frequently be stationed along the perimeter at U-Tapao and that his duty station was within 25 yards of the perimeter and that he worked at a test pad that was immediately adjacent to the perimeter. He also testified that he entered and exited the base many times during his service there, which required transiting the perimeter. Those contentions are consistent with the service records regarding the length of his service at U-Tapao. Resolving reasonable doubt in favor of the Veteran, the Board finds that was at least as likely as not exposed to herbicide agents during service when his duties caused him to cross and perform work on an near the perimeter of U-Tapao Thai Royal Air Force Base. As the Veteran was exposed to herbicide agents during service, service connection for diabetes mellitus may be presumed. Type 2 diabetes mellitus has been diagnosed, to include in an October 2001 VA medical record. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for diabetes mellitus, type 2, is warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence having been received, the claim for service connection for diabetes mellitus is reopened. Entitlement to service connection for type 2 diabetes mellitus is granted. ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs