Citation Nr: 18112593 Decision Date: 06/20/18 Archive Date: 06/19/18 DOCKET NO. 14-36 835 DATE: June 20, 2018 ORDER New and material evidence has been received to reopen the claim of entitlement to posttraumatic stress disorder with anxiety and depression. The appeal is granted to that extent only. New and material evidence has been received to reopen the claim of entitlement to service connection for diabetes mellitus type 2. Entitlement to service connection for diabetes mellitus type 2, due to herbicide exposure is granted. REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) with anxiety and depression is remanded. FINDINGS OF FACT 1. By an April 2009 rating decision, the Veteran’s claim of entitlement to service connection for PTSD was denied. 2. Additional evidence has been received which is not cumulative or redundant of the evidence of record at the time of the April 2009 rating decision and relates to an unestablished fact necessary to substantiate the claim for service connection. 3. By an April 2009 rating decision, the Veteran’s claim of entitlement to service connection for diabetes mellitus was denied. 4. Additional evidence has been received which is not cumulative or redundant of the evidence of record at the time of the April 2009 rating decision and relates to an unestablished fact necessary to substantiate the claim for service connection. 5. The Veteran’s diabetes mellitus type 2, is attributable to herbicide exposure that occurred while stationed at Korat Air Force Base (AFB) Thailand. CONCLUSIONS OF LAW 1. The April 2009 rating decision denying service connection for PTSD is final. 38 U.S.C. §§ 7104 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for PTSD, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The April 2009 rating decision denying service connection for diabetes mellitus is final. 38 U.S.C. §§ 7104 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 4. New and material evidence has been received to reopen the claim of entitlement to service connection for diabetes mellitus, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 5. The criteria for service connection for diabetes mellitus are met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from July 1960 to July 1968. In April 2018, the Veteran testified at a Board hearing. The transcript is of record. The issues have been recharacterized to comport with the evidence of record. The issue of entitlement to service connection for PTSD has been recharacterized as service connection of a psychiatric disorder in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. New and Material Evidence A claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered “new” if it was not previously submitted to agency decision makers. “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 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). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). A. PTSD In the April 2009 rating decision, the Veteran’s claim for service connection for PTSD was denied based on insufficient evidence to corroborate the Veteran’s claimed in-service stressors. At the time of that decision, the pertinent evidence of record included the Veteran’s service treatment and military personnel records, lay statements from the Veteran, VA treatment records, and formal findings from the Joint Services Record Research Center (JSRRC) regarding the Veteran’s claimed PTSD stressors. The evidence received since the April 2009 rating decision includes the Veteran’s credible testimony from the April 2018 Board hearing stating that the Veteran was on lockdown due to incoming fire in Saigon, Vietnam, while on standby for a flight due to the death of his child. This evidence is new and material as it pertains to the Veteran’s in-service stressor, which is an unsubstantiated fact that is necessary to substantiate the claim. Therefore, the claim is reopened. B. Diabetes Mellitus In the April 2009 rating decision, the Veteran’s claim for service connection was denied based on the finding that the Veteran’s diabetes mellitus was not related to herbicide exposure. At the time of that decision the pertinent evidence of record included the Veteran’s service treatment and military personnel records, lay statements from the Veteran, VA treatment records, and formal findings from the JSRRC regarding the Veteran’s presence in Vietnam. The evidence received since the April 2009 rating decision includes the Veteran’s credible testimony from the April 2018 Board hearing stating that he was based at Korat AFB in Thailand and worked along the perimeter of the base in the course of his duties installing field wire. This evidence is new and material as it provides evidence that the Veteran was at Korat AFB between January 9, 1962 and May 7, 1975 and near the perimeter for his daily work activities. This evidence pertains to whether the Veteran was exposed to herbicides during his service, which is an unsubstantiated fact that is necessary to substantiate the claim. Therefore, the claim is reopened. 2. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: ‘(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service’ – the so-called “nexus” requirement.” Holton v. Shineski, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). If the veteran was exposed to an herbicide agent (to include AO) during active service, diabetes mellitus shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed to an herbicide agent if a listed chronic disease manifests to a degree of 10 percent disabling or more, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a). The presumption is rebuttable. 38 C.F.R. § 3.307(d). 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. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Special consideration of herbicide exposure on a factual basis has been extended to Veterans whose duties placed them on or near the perimeters of Thailand military bases. In this regard, if a veteran served at a Royal Thai Air Force base in U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang as an Air Force security policeman, security patrol dog handler, a member of a security police squadron, or otherwise near the air base perimeter as shown by the evidence of daily work activities, performance evaluation reports, or other credible evidence, herbicide exposure will be conceded on a direct/facts-found basis. See VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H, Topic 5 (M21-1); see also VA Public Health Thailand Guidance, http://www.publichealth.va.gov/exposures/agentorange/thailand.asp. In making all determinations, the Board must fully consider the lay assertions of record. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). The Veteran asserts that he is entitled to service connection for diabetes mellitus due to exposure to herbicides while based at Korat and Takhli AFB in Thailand. According to the Veteran, he was exposed to Agent Orange during his daily work activities, which required him to install telephone wires around the perimeter of the base. The Veteran’s DD-214 confirms that the Veteran’s miliary occupational specialty was telephone installation repairman. Additionally, the Veteran’s military personnel record contains temporary duty orders to Korat AFB effective January 1967 for approximately 122 days. At the hearing, the Veteran testified that his duties at Korat AFB required him to run cables and install telephone systems around the airfield and bunkers. In the course of these duties, the Veteran had to run field wire around the perimeter of the base to the different outposts of security forces. The Veteran is competent to describe observable facts, such as his duties and proximity to the perimeter while based at Korat AFB. The Board finds the Veteran’s testimony credible; therefore, the evidence establishes that the Veteran worked near the perimeter of Korat AFB beginning in January 1967 and lasting for a period of about 122 days; thus, exposure to herbicides is presumed. As such, service connection for diabetes mellitus, due to herbicide exposure, is granted. REASONS FOR REMAND 1. Entitlement to service connection for PTSD with anxiety and depression is remanded. The VA has a duty to search for records that would assist a Veteran in the development of his claim and for which the Veteran has provided the Secretary information sufficient to locate such records, which includes making as many requests as necessary and ends only when such a search would become "futile." See Gagne v. McDonald, 27 Vet. App 397, 402-403 (2015). The Veteran contends he has PTSD due to fear associated with hostile military activity in the war zone of Vietnam. According to the Veteran’s testimony, he was awaiting an emergency flight home in Saigon, when the base was put on lockdown due to incoming fire. The Veteran also alleged that, after the lockdown was lifted, a known acquittance, a chaplain, gave up his seat for him and the chaplain’s plane was subsequently shot down. While there have been attempts to verify the Veteran’s presence in Vietnam, these attempts have not been sufficient, as they did not include efforts to verify the Veteran’s or the chaplain’s flight from Saigon in May 1967. Thus, a remand is necessary to search flight logs or flight manifests, to verify the Veteran’s reports of being in Vietnam in May 1967. In addition, the Board notes that the scope of the claim has been expanded to include any acquired psychiatric disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). As such, a VA examination is necessary to determine the nature and etiology of all present acquired psychiatric disorders. Therefore, remand is warranted to ensure proper development of the Veteran's claimed in-service stressor and to afford the Veteran a VA examination. The matter is REMANDED for the following action: 1. Request that JSRRC or other appropriate repository, investigate and attempt to verify the Veteran's reports of being at the airfield in Saigon Vietnam during a lockdown due to incoming fire. Additionally, attempt to verify the Veteran’s claim that an aircraft leaving the Saigon airfield was shot down on or around May 6, 1967. The request to the JSRRC, or other appropriate sources should be for May 1967 and include any records from the Veteran’s assigned unit, flight logs, mission reports, and flight manifests to attempt to verify the Veteran’s report that he was in Saigon in May 1967 as well as to verify that Chaplain Thomas Myers, was in Saigon in May 1967 also awaiting a flight. Additionally, the request should attempt to verify if the Saigon airfield was on lockdown due to incoming fire in May 1967, specifically on or around May 6, 1967. This request should also attempt to verify if any planes were shot down around that time and if so, if Chaplain Thomas Myers was a passenger, or listed as a casualty. If the search for corroborating information leads to negative results, notify the Veteran of this fact; explain the efforts taken to obtain this information, and describe any further action to be taken. If the described stressor lacks sufficient information for verification purposes, such should be noted in a formal finding. 2. Schedule the Veteran for a VA examination with a VA psychiatrist or psychologist to determine the nature and etiology of any acquired psychiatric disorder, to include PTSD. The claims file should be made available to the examiner in conjunction with the examination. Any medically indicated tests should be accomplished, and all pertinent symptomatology and findings must be reported in detail. The examiner should list all psychiatric disorders present during the time period of the claim. With regard to each identified acquired psychiatric disorder present during the claim, the VA examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any diagnosed psychiatric disorder originated during or is otherwise etiologically related to the Veteran’s military service. If PTSD is diagnosed, the specific stressors giving rise to the condition must be identified. In providing the requested opinions, the examiner is advised that the term "at least as likely as not" does not mean within the realm of possibility, but that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. The examiner is advised that the Veteran is competent and credible to report his symptoms and in-service stressors. The examiner must specifically consider and discuss the Veteran's testimony, in addition to the lay statements of record and the opinion and rationale should reflect such consideration. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After completing the above actions, and any other development deemed necessary, the AOJ should readjudicate the claim on appeal. If the benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. A. Prinsen, Associate Counsel