Citation Nr: 1823007	
Decision Date: 04/17/18    Archive Date: 04/25/18

DOCKET NO.  14-02 350	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUES

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

2. Entitlement to service connection for Type II diabetes mellitus, due to exposure to herbicides.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. E. Griffith, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 1966 to March 1969.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

The case was previously remanded by the Board in May 2014 to afford the Veteran a hearing.

The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in September 2016. A transcript of the hearing is associated with the file.  Accordingly, VA has complied with the prior remand order.  Stegall v. West, 11 Vet. App. 268 (1998).

The issue of entitlement to service connection for Type II diabetes mellitus, due to exposure to herbicides is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

1.  The November 2001 rating decision denying service connection for Type II diabetes mellitus hearing loss was not appealed and became final; no new and material evidence was received within one year of that decision.  

2. Since the last denial of service connection for Type II diabetes mellitus, new and material evidence has been received.

CONCLUSION OF LAW

The November 2001 RO denial of service connection for Type II diabetes mellitus became final, but the criteria for reopening the claim have been met. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Procedural duties
		
Neither the Veteran nor his representative has raised any issues with respect to 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 a duty to assist argument).

II. New and material evidence

Where a claim has been finally adjudicated, new and material evidence is required in order to reopen the previously denied claim.  See 38 U.S.C. §5108 (2012); 38 C.F.R. §3.156 (a); see also Shade v. Shinseki, 24 Vet. App. 110 (2010).  New evidence is that which was not previously submitted to agency decision makers.  Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  Where new and material evidence is received within one year after the initial denial, the denial is not final, and the claim remains pending.  38 C.F.R. § 3.156(b).  New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  Id.

For the purpose of reopening, evidence received is generally presumed credible.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  There is a low threshold for finding new evidence raises a reasonable possibility of substantiating a claim.  Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).  VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA's duty to provide a VA examination is triggered.  There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening.  Shade, 24 Vet. App. at 117-20.

The Veteran is competent to report symptoms and experiences observable by his senses, but not to assess the etiology of disorders, as this requires specialized training.  See 38 C.F.R. § 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 

The Veteran seeks to reopen his claim of service connection for Type II diabetes mellitus, secondary to herbicide exposure.  The RO originally denied service connection for Type II diabetes mellitus in a November 2001 rating decision because the evidence did not show exposure to Agent Orange or other herbicide agents in service or another medical link between the Veteran's service and his disability.  

Evidence considered at the time of the November 2001 rating decision include lay statements from the Veteran concerning his exposure to Agent Orange, a report from the Veteran's treating physician and records reflecting current treatment for Type II diabetes mellitus.  

The file contains service treatment records that were obtained more than one year after the November 2001 rating decision, but they are not related to a claimed in-service event, injury, or disease, as they fail to show that the Veteran served in Vietnam, was exposed to Agent Orange or other herbicides, or developed diabetes mellitus in service.  38 C.F.R. § 3.156 (c). 

The Veteran submitted a letter from his treating physician, Dr. J.W., who stated that the Veteran has type II diabetes "and was exposed to Agent Orange as you already know" and related this to a possible relationship with the Veteran's diabetes.  Dr. J.W.'s statements are new and material because they provide evidence of a medical link between the Veteran's service and his disability.  Evidence received in connection with an application to reopen based on new and material evidence is presumed credible, and there is nothing of record to rebut that presumption. 

In his July 2009 application, the Veteran reiterated that he was exposed to Agent Orange or other herbicides in Thailand and Cambodia, and that this resulted in his Type II diabetes mellitus.  At the Board hearing in September 2016, the Veteran testified he was stationed in Thailand, and was responsible for transporting Agent Orange on various short temporary duty trips.  The Veteran stated he had noted the orange color of the liquid and powder in the barrels he was transporting.  The Veteran's testimony is new and material, as it provided additional details supporting the Veteran's claim.

Based on the foregoing, the Board finds that new and material evidence has been received and the matter is reopened.  38 C.F.R. § 3.156.


ORDER

New and material evidence having been received, the claim of service connection for Type II diabetes mellitus is reopened.


REMAND

The record contains insufficient competent medical evidence to decide the claim.  As noted above, the Veteran submitted a letter from his treating physician, Dr. J.W., who stated that the Veteran has type II diabetes, was exposed to Agent Orange, and related this to a possible relationship with the Veteran's diabetes.  Dr. J.W. opined that "there maybe a relationship with regard to [the Veteran's diabetes]."  However, Dr. J.W.'s opinion is speculative, as it does not express the requisite degree of certainty (i.e. more likely than not) and inconsistent with the record, as there is no evidence other than the Veteran's statements that he was exposed to Agent Orange.  The Court of Appeals for Veterans Claims has held that that use of equivocal language such as "possible," or, in this case, "maybe" makes a statement speculative in nature.  See Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (holding that a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus.); see also Bloom v. West, 12 Vet. App. 185, 187 (2007).  A medical opinion is entitled to no weight if it contains only data and conclusions, and it is the factually accurate, fully articulated, sound reasoning for the conclusions, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  

In a claim of service connection, VA's duty to assist the Veteran includes providing a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent/recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A(d)(2) (2012); 38 C.F.R. § 3.159(c)(4)(i) (2017).  As Dr. J.W.'s opinion is speculative due to the use of "maybe" and inconsistent with the record, which does not support Agent Orange exposure, there is insufficient competent medical evidence to decide the claim.

Accordingly, the case is REMANDED for the following action:

1. Obtain and associate with the claims file any outstanding VA treatment records.

2. Obtain a medical opinion with respect to the Veteran's Type II diabetes mellitus.  The examiner should address the following:

Is the Veteran's Type II diabetes mellitus at least as likely as not related to his active service, to include as due to herbicide exposure? 

Please consider all lay and medical evidence and provide rationale a rationale for all opinions.

If the needed opinion cannot be provided without resort to speculation, court cases require the examiner explain why the opinion cannot be offered, and state whether the inability is due to the absence of any evidence or to the limits of scientific or medical knowledge.

3. If any issue on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case. Then, return the case to the Board, if otherwise in order.


The appellant 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 (2012).



______________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs