Citation Nr: 18115158 Decision Date: 06/29/18 Archive Date: 06/29/18 DOCKET NO. 15-10 425 DATE: June 29, 2018 ORDER The previously denied claim of entitlement to service connection for ischemic heart disease status post-coronary bypass graft is reopened. Entitlement to service connection for ischemic heart disease status post-coronary bypass graft is granted. Entitlement to service connection for diabetes is granted. REMANDED Entitlement to service connection for residuals of an eye injury is remanded. Entitlement to service connection for diabetic retinopathy, secondary to diabetes is remanded. Entitlement to service connection for hypertension, secondary to diabetes. is remanded. Entitlement to service connection for a disorder of the right upper extremity, to include peripheral vascular disease, secondary to diabetes is remanded. Entitlement to service connection for a disorder of the left upper extremity, to include peripheral vascular disease, secondary to diabetes is remanded. Entitlement to service connection for a disorder of the right lower extremity, to include peripheral vascular disease, secondary to diabetes is remanded. Entitlement to service connection for a disorder of the left lower extremity, to include peripheral vascular disease, secondary to diabetes is remanded. FINDINGS OF FACT 1. In an August 2012 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for ischemic heart disease status post-bypass graft. The Veteran did not file a notice of disagreement with the decision or submit new and material evidence within one year of the denial. 2. Evidence received since the final August 2012 rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for ischemic heart disease, status post-bypass graft. 3. Resolving all reasonable doubt in the Veteran’s favor, the Veteran had in-country service in the Republic of Vietnam between 1967 and 1968. 4. The Veteran has a current diagnosis of ischemic heart disease status post-coronary bypass graft. 5. The Veteran has a current diagnosis of diabetes. CONCLUSIONS OF LAW 1. The August 2012 rating decision that denied claim of entitlement to service connection for ischemic heart disease status post-bypass graft is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.1103 (2017). 2. The criteria for reopening a previously denied claim of entitlement to service connection for ischemic heart disease status post-bypass graft have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for entitlement to service connection for ischemic heart disease status post-bypass graft have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. 3.102, 3.303, 3.307, 3.309, 3.310 (2017). 4. The criteria for entitlement to service connection for diabetes have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from March 1966 to March 1970. This claim comes on appeal of October 2012, January 2013, and December 2014 rating decisions. Request to Reopen a Claim Based on New and Material Evidence If a claim of entitlement to service connection has previously been denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. 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). The evidence VA is required to review for newness and materiality is that which has been submitted by the claimant since the last final disallowance of the claim on any basis. See Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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). Furthermore, 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, to include by triggering the Secretary’s duty to assist. Shade, 24 Vet. App. at 118. Request to reopen a previously denied claim of entitlement to service connection for ischemic heart disease status post-coronary bypass graft. The Veteran first filed a claim of entitlement to service connection for residuals of ischemic heart disease in August 2010. The RO denied the claim in an August 2012 rating decision and the Veteran did not submit a notice of disagreement or new and material evidence within one year of the decision; therefore the decision became final. This represents the most recent final denial; accordingly the Board must consider whether the Veteran has provided new and material evidence since that decision. The August 2012 rating decision hinged, in part, on whether the Veteran had service in Vietnam. Since that decision, the Veteran has submitted statements explaining and clarifying his service, and internet research describing the work of the squadron he was assigned to support. These submissions address an issue material to the claim—namely, evidence of the Veteran’s in-country service in the Republic of Vietnam—that was not previously of record and are neither cumulative nor redundant. Without yet addressing the probative value of this additional evidence, the Board acknowledges that the evidence satisfies the low threshold of new and material evidence required to reopen the claim. To this extent only, the appeal is granted. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). Furthermore, a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). Under 38 C.F.R. § 3.309(e), a presumption of service connection arises for a Vietnam Veteran (presumed exposed to an herbicide agent) who develops one of several enumerated conditions associated with herbicide agent exposure, to include ischemic heart disease and diabetes. The enumerated diseases shall be service connected, even if there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. §3.309 (e). Presence in Vietnam Of primary importance in this case is the question of whether the Veteran’s military service included in-country service in the Republic of Vietnam. For the issues decided herein, the Veteran has not claimed a causal link between his current disabilities and service, aside from presumptive service connection due to exposure to herbicide agents. Furthermore, the Veteran’s service treatment records and medical history do not suggest any other nexus for direct service connection. The Veteran claims that while serving at Clark Air Force Base in the Philippines, he was assigned to four tours of temporary duty (TDY), two of which sent him to Thailand and two of which sent him to Vietnam. Specifically, the Veteran claims he worked on the maintenance of Aim Series missiles used on F-102 aircraft, arming and disarming warheads, in support of the 509th Tactical Fighter Squadron (509th). Although the 509th was primarily stationed at Clark Air Force Base, the Veteran stated that aircraft were used in support of the campaign in Vietnam and were temporarily stationed in both Vietnam and Thailand. In a January 2012 statement, the Veteran described his TDY missions as a “round robin” that required him and his fellow airmen to fly from Clark Air Force Base to Tan Son Nhat Air Base in Saigon. From there, they would travel to Udorn and Don Maung Air Bases in Thailand, and Danang and Bien Hoa bases in Vietnam. He estimated that he spent four to eight days at each base. The Veteran’s military record does not explicitly document the Veteran’s narrative of his service. The record does show, however, that the Veteran was assigned to Clark Air Force Base as a munitions specialist in December 1966. A February 1968 performance review states that, from April 1967 to February 1968, as a result of his proficiency with the Aim Series missiles the Veteran was sent TDY to four sites in Southeast Asia to “arm/de-arm missiles.” In further support of his claim, the Veteran submitted internet research that showed that the fighter squadron from Clark Air Force Base was assigned to the 405th Fighter Wing in June 1966 to supplement the F-102 mission in Southeast Asia. According to this research, F-102 aircraft “stood rotational alert at TDYs Bien Hoa and Da Nang Air Bases in South Vietnam and at Udorn and Don Muang Air Bases in Thailand,” before eventually being phased out in December 1969. The Veteran also submitted photographs he claims to have taken during his time in Vietnam. There is nothing to specifically identify the locations in the photographs, however they appear to be marked with contemporaneous annotations identifying Vietnamese geographical features and the missiles with which the Veteran worked. Although there is no explicit evidence to show that the Veteran served in Vietnam, there is significant circumstantial evidence to support the claim. The Veteran’s narrative of his service is supported by his military occupational specialty, his performance reviews objectively documenting his four TDYs, and the documented history of the assignments of the F-102 aircraft stationed at Clark Air Force Base. Furthermore, the Veteran is competent to describe his recollection of his service and has proven to be a reliable historian. Assessing the totality of the evidence, the Board finds that it is at least as likely as not that the Veteran had in-country service in the Republic of Vietnam. Accordingly, in the absence of affirmative evidence to the contrary, for the purposes of service connection the Veteran is presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307(a)(6)(iii). 1. Entitlement to service connection for ischemic heart disease status post-coronary bypass graft An August 2011 disability benefits questionnaire showed the Veteran having a diagnosis of ischemic heart disease—specifically atherosclerotic heart disease—for which he underwent a coronary artery bypass graft. As ischemic heart disease is one of the enumerated conditions for which service connection is presumed under 38 C.F.R. § 3.309(e), service connection must therefore be granted. 2. Entitlement to service connection for diabetes. Private medical records show that the Veteran has had a diagnosis of Diabetes Mellitus, Type II, dating back to at least November 2002. As diabetes is one of the enumerated conditions for which service connection is presumed under 38 C.F.R. § 3.309(e), service connection must therefore be granted. REASONS FOR REMAND 1. Entitlement to service connection for residuals of an eye injury is remanded. The Veteran has claimed multiple theories of entitlement to service connection for residuals of an eye injury, initially claimed as cataracts. Specifically, he has claimed that a current eye disability is secondary to diabetes, but has also claimed that it was caused by a corneal abrasion incurred in service as a result of exposure to sand in his eyes. In October 2012, the Veteran underwent a VA examination of his eyes. There, the examiner stated that there was no scarring or disfigurement attributable to any eye condition, but also documented that the Veteran’s right cornea was off-axis, with evidence of an old foreign body. Service treatment records show that the Veteran was treated in June 1968 for a left corneal abrasion and restricted from duties involving exposure to dust. In an October 2012 follow-up, the examiner was asked to explain the conflicting evidence. In response, the examiner only stated that it was likely that the June 1968 report was a mistake, but did not address whether there was a current disability related to the Veteran’s in-service injury. The October 2012 examination does not provide sufficient information to decide the claim. Therefore, on remand, the Veteran should be afforded a new examination that identifies all current disabilities of the eyes and addresses whether they are causally related to any in-service injuries the Veteran incurred. 2. Entitlement to service connection for diabetic retinopathy, secondary to diabetes is remanded. Based on the record, it is unclear whether the Veteran has a current diagnosis of diabetic retinopathy. However, medical records show that the Veteran was treated for cataracts and may have a history of other related diagnoses. As with the issue of residuals of an eye injury, the Veteran should be afforded an examination to identify all current disabilities of the eyes, to include any that may be secondary to service-connected diabetes. 3. Entitlement to service connection for hypertension, secondary to diabetes. is remanded. The Veteran’s medical record shows a documented clinical history of hypertension, which he claims is secondary to service-connected diabetes. To date, the Veteran has not had an examination addressing the causal relationship between diabetes and hypertension, nor does the medical record provide any information as to whether the Veteran’s hypertension is caused by diabetes. Accordingly, on remand, an examination is necessary to address this issue. 4. Entitlement to service connection for bilateral peripheral neuropathy of the upper and lower extremities, secondary to diabetes. is remanded. The Veteran’s initial claim listed peripheral neuropathy of the bilateral upper and lower extremities as current disabilities. Medical records do not show a current diagnosis of peripheral neuropathy, however they do document a clinical history of peripheral vascular disease along with the Veteran’s general complaints of pain in his extremities. When a Veteran makes a claim, he is seeking service connection for identified symptoms, regardless of the label or diagnosis that he, as a layperson, attaches to those symptoms. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, the Veteran has sought service connection for a disability manifesting in pain affecting the extremities, therefore the claim should be expanded to include peripheral vascular disease. To date, the Veteran has not undergone an examination for peripheral vascular disease, nor is there indication in the record as to whether peripheral vascular disease is caused or aggravated by service-connected diabetes. Accordingly, on remand, an examination is necessary to determine the causal relationship between peripheral vascular disease of any and all extremities and service-connected diabetes. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination of the eyes, to include diabetic retinopathy, cataracts, and any residuals of an injury. The examiner should review the entire claims file, to include a copy of this Remand, and the report of examination should include discussion of the Veteran’s documented history and assertions. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner should clearly identify all current disabilities of the eyes. Then, with respect to each such diagnosed disability, the examiner should render an opinion, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had onset in, or is otherwise related to service, to include a documented in-service corneal abrasion. The examiner should also render an opinion as to whether it is at least as likely as not that the disability was caused or aggravated by a service-connected disability, to include diabetes. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. 2. Schedule the Veteran for a VA examination for vascular diseases. The examiner should review the entire claims file, to include a copy of this Remand, and the report of examination should include discussion of the Veteran’s documented history and assertions. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner should clearly identify the Veteran’s current vascular disabilities, to include hypertension and peripheral vascular disease. Then, with respect to each such diagnosed disability, the examiner should render an opinion, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had onset in, or is otherwise related to service. The examiner should also render an opinion as to whether it is at least as likely as not that the disability was caused or aggravated by a service-connected disability, to include diabetes and/or heart disease. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. 3. Once the aforementioned development has been achieved, as well as any other development deemed necessary thereafter, readjudicate the appeal. If any benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Giaquinto, Associate Counsel