Citation Nr: 18110663 Decision Date: 06/13/18 Archive Date: 06/13/18 DOCKET NO. 15-10 332A DATE: June 13, 2018 ORDER The appeal to reopen a claim of service connection for diabetes mellitus (diabetes) is granted. Service connection for diabetes is granted. Service connection for kidney condition is granted. REMANDED Service connection for bilateral hearing loss is remanded. Service connection for tinnitus is remanded. REFERRED Service connection for bilateral peripheral neuropathy is referred. FINDINGS OF FACT 1. By June 2010 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for diabetes; the Veteran did not file a formal appeal of the decision. 2. Subsequent to the June 2010 rating decision, there was evidence associated with the claims file that is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for diabetes. 3. Based on credible evidence that the Veteran’s duties placed him on or near the perimeters of the Royal Thai Air Force Bases of Nakhon Phanom (NKP) and Ubon, he is presumed to have been exposed to herbicide agents during his active service in Thailand. 4. The Veteran’s diabetes is presumed to be related to his exposure to herbicide agents while serving in Thailand. 5. The Veteran’s chronic kidney condition is as likely as not caused by his service-connected hypertension. CONCLUSIONS OF LAW 1. The June 2010 rating decision that denied the Veteran’s claim of entitlement to service connection for diabetes is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. Evidence received since the final June 2010 determination is new and material, and the Veteran’s claim for entitlement to service connection for diabetes is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for diabetes are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for secondary service connection for chronic kidney condition are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force from March 1971 to March 1993. A June 2010 rating decision denied the Veteran’s claim for entitlement to service connection for diabetes. An October 2013 rating decision reopened his claim for entitlement to service connection for diabetes. Although the RO reopened the claim for service connection for diabetes, the question of whether new and material evidence has been received to reopen such claim must be addressed in the first instance by the Board because the issue goes to the Board’s jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has characterized the claim accordingly. On numerous occasions, the Veteran indicated his peripheral neuropathy is a residual of his diabetes. See April 2015 substantive appeal, June 2017 letter, and July 2017 letter. The issue of whether new and material evidence has been received to reopen the claim of service connection for peripheral neuropathy is referred to the agency of original jurisdiction (AOJ) for appropriate action. New and Material Evidence 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for diabetes Generally, a claim which has been denied in a final unappealed RO decision or an unappealed Board decision may not be reopened and allowed. 38 U.S.C. § 7105(c). An exception to that rule is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). The threshold for determining whether new and material evidence has been submitted is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). However, evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The RO denied the Veteran’s claim for entitlement to service connection for diabetes in a June 2010 rating decision based on a finding the condition did not occur in service nor was related to service. The Veteran did not appeal this decision, or submit new and material evidence within one year of that decision; therefore, it is final. Subsequent to the June 2010 rating decision, the Veteran submitted a September 2014 lay statement describing his service in Thailand and other documents discussing herbicide agent use in Thailand. This evidence qualifies as new evidence because it was not of record at the time of the June 2010 rating decision and is not cumulative or redundant of the prior existing evidence of record. This evidence is material, in that it relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for diabetes, specifically evidence of a nexus between the Veteran’s diabetes and service. Thus, this new evidence raises a reasonable possibility of substantiating the Veteran’s service connection claim. Accordingly, the Board finds that the Veteran has submitted new and material evidence sufficient to reopen a claim of entitlement to service connection for diabetes. Service Connection Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection also may be granted for any disease initially 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). In order to prevail on the issue of service connection, there must be evidence of a current disability; evidence of in-service incurrence or aggravation of a disease or injury; and evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Establishing service connection on a secondary basis requires: competent evidence of a current disability for which secondary service connection is sought; evidence of a service-connected disability; and competent evidence that the current disability was either caused or aggravated by the service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). 2. Entitlement to service connection for diabetes The Veteran contends his diabetes is the result of exposure to herbicide agents in Thailand during service. See December 2012 claim. A Veteran who during active military, naval, or air service served in the Republic of Vietnam during the period beginning 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 establishing that the Veteran was not exposed to any such agent. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). In addition, VA has established a procedure for verifying exposure to herbicides in Thailand during the Vietnam Era. See VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (M21-1MR); Compensation and Pension Bulletin, May 2010. VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand for the purpose of eliminating vegetation and ground cover for base security purposes as evidenced in a declassified Vietnam era Department of Defense document titled, “Project CHECO Southeast Asia Report: Base Defense in Thailand.” Id. Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those Veterans whose duties placed them on or near the perimeters of Thailand military bases. Id. This allows for presumptive service connection of the diseases associated with herbicide exposure. Id. The majority of troops in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. Id. If a Veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts found or direct basis. Id. This applies to Veterans who served during the Vietnam era, which spans from February 28, 1961 to May 7, 1975. Id. Here, there is no material dispute that the Veteran is diagnosed with and treated for diabetes. See April 2008 treatment record and January 2013 disability benefit questionnaire (DBQ). There is also no material dispute that he served in Thailand during the Vietnam War. See September 1972 and January 1973 service treatment records. Therefore, the question before the Board is whether there is credible evidence that the Veteran’s duties placed him on or near the perimeters of the Royal Thai Air Force Bases of NKP or Ubon. By August 2014 affidavit, the Veteran reported he served in Thailand at NKP RTAFB from August 1972 to November 1972, and was transferred to Ubon RTAFB from November 1972 to January 1973. He reported his assignment was as an Aircraft Armament technician, responsible for maintaining aircraft weapons systems. The Veteran’s DD-214 confirmed he served as an Aircraft Armament technician for over 22 years. He reported he worked on the flight line of both bases. He reported every 2-3 days he was in a rotation for end of the runway duties. He reported the end of the runway was near the base perimeter, approximately 100-200 yards. This is consistent with ariel pictures submitted by the Veteran of the NKP and Ubon bases. He reported while on end of the runway duty, he would routinely walk over to the base perimeter (a 30 second walk) to speak to security police or get ice water for them. He reported at both bases, they would stay on the flight line at lunch breaks. He reported the first week he was at NKP, his sleeping quarters were screened hooches located in close proximity to the perimeter. The Veteran is competent to describe his duties and location. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Further, the Board finds the Veteran’s testimony credible because his statements are consistent with the places, type, and circumstances of his service, as corroborated by service medical and personnel records. As such, the Board has no reason to doubt the veracity of his statements. In summary, the Board finds that the Veteran’s testimony and corresponding evidentiary record constitute competent and credible evidence establishing the Veteran’s service at NKP and Ubon RTAFB included duties near the base perimeter. As the Veteran is diagnosed with diabetes and is presumed to have been exposed to herbicides during service, service connection will be granted, unless there is clear evidence to the contrary, which is not present here. Thus, entitlement to service connection for diabetes is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to service connection to chronic kidney condition The Veteran contends his chronic kidney condition is a residual of his diabetes, or otherwise related to service. The Board recognizes the Veteran has a chronic kidney condition. See April 2008 private treatment record, September 2012 private treatment record, and December 2012 VA Agent Orange registry examination. The Board also recognizes the Veteran is service-connected for numerous conditions. The question before the Board is whether the Veteran’s chronic kidney condition is as likely as not caused or aggravated by one of his service-connected conditions, or is otherwise etiologically related to service. The Board finds the preponderance of the evidence supports the Veteran’s chronic kidney condition is caused by his service-connected hypertension. A December 2012 VA examiner assessed the Veteran with chronic kidney disease, likely from years of uncontrolled hypertension. The Board gives this opinion probative weight. The opinion is credible because it based on a review of the Veteran’s medical history and a full examination. A January 2013 DBQ indicated the Veteran had “diabetic neuropathy or renal dysfunction caused by diabetes mellitus.” The Board is unable to give this opinion probative weight as no further rationale or discussion was provided. Therefore, the criteria for secondary service connection for chronic kidney condition are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. The Veteran contends the July 2011 VA examination for hearing loss and tinnitus was inadequate because it did not discuss the likelihood in-service complaints of earaches, ear pain, tenderness, and discharge caused or aggravated his hearing loss or tinnitus. See April 2015 letter. In addition, the Board notes the examiner should consider and directly address any shifts of acuity thresholds found in the service treatment records even if the shifts do not amount to a hearing loss disability under 38 C.F.R. § 3.385. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to address the nature and etiology of the Veteran’s hearing loss and tinnitus. Audiological testing should be performed. Testing must include, in numeric decibels, the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz and must provide speech recognition scores using the Maryland CNC test. (a) Is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s bilateral hearing loss is etiologically related to service? (b) Is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s tinnitus is etiologically related to service? When answering (a) and (b), discuss the impact, if any, of the Veteran’s in-service exposure to aircraft engine noise for 22 years and in-service earaches, ear pain, ear tenderness, and ear discharge. The examiner should discuss shifts of acuity thresholds found in the service treatment records, even if the shifts do not amount to a hearing loss disability under 38 C.F.R. § 3.385. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Winkler, Associate Counsel