Citation Nr: 18159991 Decision Date: 12/21/18 Archive Date: 12/20/18 DOCKET NO. 17-02 868 DATE: December 21, 2018 ORDER New and material evidence has been received; reopening of claim for service connection for diabetes mellitus, type II is granted. Entitlement to service connection for arteriosclerotic heart disease, as secondary to herbicide agent exposure, is granted. Entitlement to service connection for diabetes mellitus, type II, as secondary to herbicide agent exposure, is granted. FINDINGS OF FACT 1. A December 2002 rating decision denied entitlement to service connection for diabetes mellitus, type II. The Veteran did not file an appeal to that decision, nor was new and material evidence received within one year of the decision. The December 2002 rating decision is final. 2. In March 2005, the Veteran sought to reopen his previously denied claim. An April 2005 rating decision denied the Veteran’s claim to reopen. The Veteran did not file an appeal to that decision, nor was new and material evidence received within one year of that decision. 3. Evidence received since the April 2005 rating decision was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. 4. Resolving reasonable doubt in his favor, the Veteran had service in Thailand during the Vietnam era, and his duties were primarily near the air base perimeter and other areas where he was exposed to herbicide agents; he is currently diagnosed with arteriosclerotic heart disease and diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The April 2005 rating decision that declined to reopen service connection for diabetes mellitus, type II, is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The evidence received since the April 2005 rating decision is new and material, and the Veteran’s claim for service connection for diabetes mellitus, type II, is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for arteriosclerotic heart disease have been met. 38 U.S.C. §§1101, 1110, 1111, 1131, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 4. The criteria for service connection for diabetes mellitus, type II, have been met. 38 U.S.C. §§1101, 1110, 1111, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably from January 1970 through January 1977. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an February 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a May 2018 Travel Board hearing. A transcript of the hearing has been associated with the file. 1. New and material evidence has been received; reopening of claim for service connection for diabetes mellitus, type II, is granted. Notwithstanding a determination by the RO that new and material evidence has or has not been received to reopen the Veteran’s claim, it is noted that on its own, the Board is required to determine whether new and material evidence has been presented. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Here, the Veteran’s claim was originally denied by an December 2002 rating decision. He did not file a timely appeal to that decision and it became final. Then, in March 2005, he sought to reopen his previously denied claim. An April 2005 rating decision most recently declined to reopen the Veteran’s claim. He did not file a timely appeal to that decision, and it also became final. In October 2013, he again submitted statements seeking to reopen his previously denied claim. In a February 2014 rating decision, the RO reopened the Veteran’s claim. The December 2002 rating decision denied the Veteran’s claim on the basis that there was no nexus between diabetes mellitus, type II, and service. Since the April 2005 decision, the Veteran has submitted military personnel records showing service in Thailand, his military occupational specialty (MOS) and other evidence suggesting possible herbicide exposure in service. This evidence is new as it was not previously submitted, and it is material as it relates to an unestablished fact and raises the possibility of substantiating the Veteran’s claim for service connection. As such, the Board determines that the claim is reopened. 2. Entitlement to service connection for arteriosclerotic heart disease and diabetes mellitus, type II, as secondary to herbicide agent exposure is granted. Service connection may be granted for a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In addition, service connection for certain disabilities may be presumed for those exposed to herbicide agents. Veterans exposed to Agent Orange or other listed herbicide agents are presumed service-connected for certain conditions, including arteriosclerotic heart disease and diabetes mellitus, type II, even if there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). VA has issued information concerning the use of herbicides in Thailand during the Vietnam War. In a May 2010 bulletin, VA 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), VA 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, VA 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, VA 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. VA 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. Despite the foregoing, when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994). In determining whether service connection is warranted for a disability, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that his disabilities of atherosclerotic heart disease and diabetes mellitus, type II are a result of exposure to herbicide agents while in service. The Veteran testified that he served in Vietnam, and at Ubon and Korat Air Bases in Thailand. He stated that he was a weapons control mechanic who worked on aircrafts, such as the A7D and AC130. Most of his duties were performed both in shop and outside within the perimeter. He described working within 200 feet from the boundary limits were where herbicides were sprayed. Turning to the evidence of record, there are medical treatment records showing diagnoses of atherosclerotic heart disease and diabetes mellitus, type II. Therefore, there is competent medical evidence establishing that the Veteran has a current diagnoses of atherosclerotic heart disease and diabetes mellitus, type II. during the pendency of this appeal. Resolution of the Veteran’s appeal turns on whether his current disability is attributable to his military service. The Veteran does not assert that his disabilities of atherosclerotic heart disease and diabetes mellitus, type II, had its onset during service, or was directly due to service. He asserts that they are due to his claimed herbicide agent exposure during service. The RO attempted to confirm whether the Veteran was exposed to herbicide agents in service. These efforts included obtaining personnel records, which were silent for activities, medical reports, or examinations confirming exposure to herbicide agents. There is also a February 2014 Memorandum of record indicating that there were no records confirming the Veteran had service in Vietnam. The Memorandum further states that the tactical herbicides that were used in Thailand were at a location not near any Royal Thai Air Force Base. Military personnel records reflect that the Veteran’s MOS in the Air Force was as a fire control systems mechanic and weapons control systems mechanic in Ubon and Korat Royal Thai Air Force Bases (RTAFB) Thailand Pacific Air Forces. There is also a copy of a report, once marked secret, that describe the conditions of Air Force bases in Thailand, including those in Ubon and Korat. The report notes that the perimeter was less than 300 feet from the AC-130 aircraft parking revetments in Ubon and herbicide agents were also used for control of vegetation in Korat. The Veteran testified under oath that while performing his duties in Korat and Ubon, he would have to be outside and walk around the aircrafts near the parking revetments and areas of vegetation. He further detailed that while at Ubon, they would spray herbicide agents behind the revetments and within 200 meters from the perimeter. Additionally, he produced photographs of the air base in Ubon, which showed aircrafts similar to those he once worked parked near the revetments where the herbicide agents were sprayed. His detailed testimony with respect to the duties he performed while he was in Thailand is credible. Thus, it is conceivable that his MOS required work close enough to perimeter and other areas were herbicide agents were used and caused a reasonable probability of herbicide agent exposure. Although not specifically documented in his service record, the Board finds all reasonable doubt is in favor of the Veteran and concludes that he was exposed to herbicide agents sprayed along the base perimeter and parking revetments while stationed in Ubon and Korat Royal Thai Air Force Bases. Therefore, notwithstanding the lack of confirmation, the Board finds that the above evidence is at least in equipoise as to whether the Veteran had service near the air base perimeter, and other areas where herbicide agents were used. Given this finding, the Board finds that service connection for atherosclerotic heart disease and diabetes mellitus, type II, is warranted as they are presumptively related to herbicide agent exposure. (Continued on the next page)   The Board notes that the decision in this case is based on the unique facts and circumstances surrounding this Veteran’s service. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.B. Mmeje, Associate Counsel