Citation Nr: 18157353 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 16-13 820 DATE: December 12, 2018 ORDER New and material evidence having been presented, the claim of entitlement to service connection for diabetes mellitus, type II, is reopened. Entitlement to service connection for squamous cell carcinoma, lung cancer, to include as a result of exposure to herbicides is granted. Entitlement to service connection for diabetes mellitus, type II, to include as a result of exposure to herbicides is granted. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, to include as secondary to diabetes mellitus is granted. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to diabetes mellitus is granted. FINDINGS OF FACT 1. In an unappealed October 2004 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for diabetes mellitus, type II. 2. Additional evidence has been received since the October 2004 rating decision that relates to an unestablished fact necessary to substantiate the previously denied claim of entitlement to service connection for diabetes mellitus, type II. 3. Resolving all doubt in the Veteran’s favor, the Veteran is shown to have been exposed to herbicides while serving in Thailand at the U-Tapao Royal Thai Air Force Base (RTAFB) from September 1969 to October 1970. 4. The Veteran has been diagnosed with lung cancer. 5. The Veteran has been diagnosed with diabetes mellitus, type II. 6. The Veteran’s peripheral neuropathy of the bilateral upper extremities is at least as likely as not caused by his diabetes mellitus. 7. The Veteran’s peripheral neuropathy of the bilateral lower extremities is at least as likely as not caused by his diabetes mellitus. CONCLUSIONS OF LAW 1. The October 2004 rating decision that denied entitlement to service connection for diabetes mellitus, type II, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.302. 2. New and material evidence has been received since the October 2004 rating decision that denied entitlement to service connection for diabetes mellitus, type II. 38 U.S.C. §§ 1110, 5108, 7104; 38 C.F.R. §§ 3.104(a), 3.156, 20.1103, 20.1104. 3. The Veteran’s lung cancer is presumed to have been incurred during his active service in Thailand. 38 U.S.C. §§ 1101, 1110, 1116, 5107; 38 C.F.R. §§3.102, 3.303, 3.304, 3.307, 3.309(e). 4. The Veteran’s diabetes mellitus, type II, is presumed to have been incurred during his active service in Thailand. 38 U.S.C. §§ 1101, 1110, 1116, 5107; 38 C.F.R. §§3.102, 3.303, 3.304, 3.307, 3.309(e). 5. The criteria for entitlement to service connection for peripheral neuropathy of the bilateral upper extremities as secondary to service-connected diabetes mellitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 6. The criteria for entitlement to service connection for peripheral neuropathy of the bilateral lower extremities as secondary to service-connected diabetes mellitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to June 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. A January 2014 rating decision denied to reopen the Veteran’s claim of entitlement to service connection for diabetes mellitus. An August 2014 rating decision continued the previous denial of entitlement to service connection for diabetes, and also denied entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities. A May 2016 rating decision denied entitlement to service connection for lung cancer. I. New and Material Evidence Initially, the Board notes that whenever a claim to reopen is filed, regardless of how it was characterized by the agency of original jurisdiction, the Board must make a de novo determination as to whether new and material evidence has been received. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.302. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). VA must evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). An October 2004 rating decision, in pertinent part, denied service connection for diabetes mellitus, type II, because the Veteran was not shown to have served in Vietnam. The relevant evidence of record at that time included the Veteran’s service treatment records and post-service treatment records. See October 2004 Rating Decision. The Veteran was notified of the October 2004 rating decision and of his appellate rights by letter dated October 28, 2004. The Veteran did not appeal the October 2004 rating decision. As such, the October 2004 rating decision is final in regard to the Veteran’s claim of entitlement to service connection for diabetes mellitus, type II. Since the time of the October 2004 rating decision, additional relevant evidence, to include statements regarding the Veteran’s potential exposure to herbicides in Thailand, have been added to the claims file. This evidence, not previously submitted to decision makers and relating to an unestablished fact necessary to substantiate the claim, raises a reasonable possibility of substantiating the claim and is thus new and material. 38 C.F.R. § 3.156(a). Therefore, the claim for service connection for diabetes mellitus, type II, is reopened. II. Service Connection 1. Entitlement to service connection for squamous cell carcinoma, lung cancer, and entitlement to service connection for diabetes mellitus, type II, to include as a result of exposure to herbicides. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent medical or lay 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and a disease enumerated by the regulations become manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1110, 1133; 38 C.F.R. §§ 3.307, 3.309. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including diabetes mellitus, type II, and lung cancer, shall be service-connected if the requirements of section 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 section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(d)(6) provides that the term “herbicide agent” means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(d)(6)(i). Section 3.307(d)(6) also provides that 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(d)(6)(iii). VA’s Compensation & Pension Service (C&P) has issued information concerning the use of herbicides in Thailand during the Vietnam War. In a May 2010 bulletin, C&P indicated that it has determined that there was significant use of herbicides on the fenced in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. A primary source for this information was the declassified Vietnam era Department of Defense (DOD) document titled Project CHECO Southeast Asia Report: Based Defense in Thailand. Although DOD indicated that the herbicide use was commercial in nature rather than tactical (such as Agent Orange), C&P has determined that there was some evidence that herbicides of a tactical nature, or that of a “greater strength” commercial variant, were used. Given this information, C&P has determined that special consideration should be given to veterans whose duties placed them on or near the perimeters of Thailand military bases. Consideration of herbicide exposure on a “facts found or direct basis” should be extended to those veterans. Significantly, C&P stated that “[t]his allows for presumptive service connection of the diseases associated with herbicide exposure.” The May 2010 bulletin identifies several bases in Thailand, including Udorn RTAFB. C&P indicated that herbicide exposure should be acknowledged on a facts found or direct basis if (1) a United States Air Force veteran served at one of the air bases as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by his or her military occupational specialty, performance evaluations, or other credible evidence; (2) an Army veteran was a member of a military police unit that served at or near a base perimeter in Thailand; or (3) an Army veteran who served on an air base in Thailand and provided perimeter security. The existence of a current disability is not at issue. Post-service treatment records show the Veteran has been diagnosed with diabetes mellitus, type II, and lung cancer. See February 2011 Physician’s Statement (reflecting the Veteran’s diabetes mellitus was diagnosed in 1992); March 2016 Progress Note (noting a diagnosis of non-small cell lung cancer). Moreover, the Veteran’s service personnel records show he served in Thailand at U-Tapao RTAFB from September 1969 to October 1970. Accordingly, exposure to herbicide agents may have occurred, depending on the nature and circumstances of his period of duty there. Therefore, the only remaining question is whether the Veteran was exposed to herbicide agents in service such that presumptive service connection is warranted. The Veteran has submitted statements detailing his duties at U-Tapao RTAFB. Specifically, he stated that his MOS of Team Chief of Munitions Loading required him to work near the perimeter line multiple times a day. The Veteran also stated that he had to travel along the perimeter road of U-Tapao in both directions up to four times a day. See March 2014 Statement in Support of Claim; July 2016 Notice of Disagreement; December 2016 Statement in Support of Claim. In support of his claim, the Veteran submitted a map of U-Tapao RTAFB, highlighting where he usually worked and the perimeter road he often traveled along. See March 2014 Correspondence. The Board finds this competent testimony to be credible and consistent with the circumstances of the Veteran’s service. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). As the Veteran had service at U-Tapao RTAFB that exposed him to herbicides, his diabetes mellitus, type II, and lung cancer is presumed to have been incurred in active service based on such; there is no evidence to the contrary. See 38 C.F.R. §§ 3.307(a), 3.309(e). Therefore, service connection for diabetes mellitus, type II, and lung cancer is established. See id.; 38 C.F.R. § 3.303. 2. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities and for peripheral neuropathy of the bilateral lower extremities, to include as secondary to diabetes mellitus. As stated above, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted on a secondary basis for a disability which is proximately due to, or the result of, a service connected disability. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists; and (2) that the current disability was either: (a) proximately caused by; or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Treatment records from the Veteran’s private physician note that the Veteran has sensory neuropathy in the hands and feet due to his diabetes. See March 2016 Progress Note; August 2016 Office Visit Note (reflecting diabetic neuropathy). (Continued on the next page)   In light of the medical evidence linking the Veteran’s peripheral neuropathy of the bilateral upper extremities and peripheral neuropathy of the bilateral lower extremities to his now service-connected diabetes mellitus, and no evidence to the contrary, service connection is warranted. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. M. Stedman, Associate Counsel