Citation Nr: 19148076 Decision Date: 06/19/19 Archive Date: 06/19/19 DOCKET NO. 16-10 996 DATE: June 19, 2019 ORDER 1. The appeal to reopen a claim of service connection for type 2 diabetes mellitus, claimed as a result of exposure to herbicide agents, is granted. 2. Service connection for type 2 diabetes mellitus, claimed as a result of exposure to herbicide agents, is granted. REMANDED 3. Entitlement to service connection for bladder cancer, claimed as a result of exposure to herbicide agents, is remanded. FINDINGS OF FACT 1. A March 2006 rating decision denied the Veteran service connection for type 2 diabetes mellitus, finding there was no evidence of a diagnosis of type 2 diabetes mellitus, or of the claimed exposure to herbicide agents during service. 2. Evidence received since the March 2006 rating decision shows a current diagnosis of type 2 diabetes mellitus; tends to corroborate the Veteran’s exposure to herbicide agents during service; relates to an unestablished fact necessary to substantiate the claim; and raises a possibility of substantiating the claim. 3. Competent evidence shows the Veteran has a diagnosis of type 2 diabetes mellitus, and credible supporting evidence shows that he was likely exposed to herbicide agents during his Vietnam Era service at an air base in Thailand. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for type 2 diabetes mellitus may be reopened. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156. 2. Service connection for type 2 diabetes mellitus, as due to exposure to herbicide agents in service, is warranted. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from March 1970 to August 1977. This case is before the Board of Veterans’ Appeals (Board) on appeal from July 2015 and April 2016 Department of Veterans Affairs (VA) rating decisions. The July 2015 rating decision denied the Veteran’s application to reopen a claim of service connection for type 2 diabetes mellitus; the April 2016 rating decision denied service connection for bladder cancer. In February 2019, a videoconference hearing was held before the undersigned. A prior, unappealed, March 2006 rating decision denied service connection for type diabetes mellitus. The Board has a jurisdictional responsibility to determine whether a previously denied claim is properly reopened. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, the initial matter for appellate consideration as to the diabetes mellitus claim is whether to reopen it. 1. The appeal to reopen a claim of service connection for type 2 diabetes mellitus is granted. A March 2006 rating decision denied the Veteran service connection for type 2 diabetes mellitus, finding there was no evidence of a diagnosis of type 2 diabetes mellitus, or of the claimed exposure to herbicide agents during service. He did not appeal the March 2006 rating decision to the Board or submit new and material evidence within the following year, and that decision became final. The claim may be reopened if new and material evidence is received. 38 U.S.C.§§ 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156. The record at the time of the March 2006 rating decision included service department and treatment records. Service department records show that the Veteran’s military occupational specialty (MOS) was bomb navigation systems mechanic/technician, and that his service included two tours of duty in Thailand, from July 1972 to July 1973 and from August 1974 to June 1975. Service treatment records (STRs) do not show any complaints or diagnosis of type 2 diabetes mellitus. After service, the Veteran filed a claim seeking service connection for diabetes mellitus, type II, in November 2005. To assist in the development of the claim, the VA requested the Veteran to furnish information or evidence showing treatment for his claimed disability; he did not respond with any evidence showing he had a diagnosis of type 2 diabetes mellitus; a February 2006 request for records from the Beckley, West Virginia VA Medical Center was negative. “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). For the purpose of reopening a claim, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In November 2014, the Veteran sought to reopen the claim of service connection for type 2 diabetes mellitus. Evidence received since the March 2006 rating decision includes VA medical records that reflect the Veteran’s diagnosis and treatment of type 2 diabetes mellitus. Such records are new evidence, as they were not considered by the RO in March 2006, and they are also material evidence, as they relate to the requisite service connection element of a current diagnosis of the claimed disability. Additional evidence received since the March 2006 rating decision also includes testimony at the February 2019 Board hearing, when the Veteran described in detail how his duties as a radar navigation systems technician during his two tours of duty in Thailand placed him near the perimeter of the U-Tapao airbase. His testimony is new evidence; it was not considered in March 2006. It is also material evidence, as it tends to corroborate exposure to herbicide agents during service in Thailand. He is competent to provide such evidence, and for the purpose of reopening, it is presumed credible. Further, the evidence would trigger VA’s duty to assist with respect to providing an examination; thus, it is sufficient to reopen the claim. See Shade v. Shinseki, 24 Vet. App. 110, 120-21 (2010). In short, considered with the evidence of record in March 2006, this evidence constitutes new and material evidence sufficient to reopen the claim of service connection for type 2 diabetes mellitus. 2. Service connection for type 2 diabetes mellitus as due to exposure to herbicide agents in service is granted. As this decision herein is fully favorable to the Veteran, the Board finds that he would not be prejudiced by its review of the merits of the reopened claim. Bernard v. Brown, 4 Vet. App. 384 (1993). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, such as diabetes mellitus, will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service (one year for diabetes mellitus and malignant tumors); or, if they were noted in service, with continuity of symptomatology since. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicide agents (to include Agent Orange) for all veterans who served in the Republic of Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). In limited instances, herbicide agent exposure in Thailand is recognized. See M21-1 (Adjudication Procedures Manual), Part IV, Subpart ii, 1.H.5.b. VA’s Adjudication Procedures Manual, M21-1, states that a special consideration of herbicide exposure on a factual basis should be extended to Veterans whose duties placed them on or near the perimeters of certain Thailand military bases. M21-1 states that if a Veteran served with the Air Force at several Royal Thai Air Force Bases, including U-Tapao, during the Vietnam Era and was stationed near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, herbicide exposure should be conceded. M21-1, IV.ii.1.H.5.b. If a veteran was exposed to a herbicide agent (to include Agent Orange) during active service, the following diseases 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 that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type II diabetes, Hodgkin’s disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). After a thorough review of the record in this case, the Board finds that the evidence satisfies all three elements of a service connection claim. It is not in dispute that the Veteran has type 2 diabetes mellitus. VA medical records clearly demonstrate a diagnosis of, and ongoing treatment for, such disease. The Veteran contends that he was exposed to herbicide agents during his service in Thailand. After reviewing his service records, this hearing testimony (at both a Decision Review Officer hearing in September 2016 and a Board hearing in February 2019), and service-related reports submitted to the Board pertaining to herbicide use at, Royal Thai Air Force Bases such as U-Tapao, the Board finds that there is credible evidence showing that the Veteran was likely exposed to herbicide agents through his daily work duties that required him to be near the air base perimeter. Service department records show that he had two tours of duty at the U-Tapao Air Force Base in Thailand during the Vietnam Era, from July 1972 to July 1973 and from August 1974 to June 1975. His MOS was bomb navigation systems mechanic/technician throughout his tours. He testified in great detail about his daily work duties, which required him to work along the flight line. He asserted that at times his work repairing radar and navigational equipment for B-52 aircraft occurred in a shop next to (at the mid-way point of, according to one map) the airfield and at other times (at least three days a week) at the (north) end of the runway (“hammerhead”), which was adjacent to the perimeter. (He also described other circumstances where he believed he was exposed, such as crossing the perimeter numerous times during his second tour to reach a beach bungalow and while working at a skeet range during R&R which abutted the ordnance disposal area that had been completely defoliated.) The Board finds his testimony to be credible. Other evidence, such as the Project CHECO Report: Base Defense in Thailand, dated in February 1973, and an academic research paper on herbicide use in Thailand, show that additional supplies of herbicide became available for the defoliation of U-Tapao in June 1972, after use of herbicides had wound down in late 1971, and that this was likely a security measure following an attack on the air base in January 1972. This other evidence includes a map (and photograph) of the air base and the air field, which corroborate the Veteran’s accounts of his positioning near the perimeter. Taken together, the Board finds that the circumstances of the Veteran’s duties in Thailand regularly placed him at or near the perimeter where there was known use of herbicide agents, and that his exposure to herbicide agents may be conceded. Statutory and regulatory provisions and VA policy provide for a presumption of service connection for certain listed diseases associated with exposure to certain herbicide agents, among them diabetes mellitus. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Affording the Veteran the benefit of consideration of such provisions, his type 2 diabetes mellitus is presumed to have been incurred in service. REASONS FOR REMAND 3. Entitlement to service connection for bladder cancer is remanded. The Veteran filed a claim of service connection in February 2016, contending that he had bladder cancer due to exposure to herbicide agents during service. It is not in dispute that he has a diagnosis of bladder cancer; VA medical records show that in August 2015, a bladder tumor was removed, and stage T1 urothelial carcinoma of the bladder was diagnosed. Thereafter, the Veteran underwent a course of treatment, including chemotherapy. As determined by the Board above, there is credible evidence that the Veteran was likely exposed to herbicide agents in service. However, unlike type 2 diabetes mellitus, bladder cancer is not a disease listed in 38 C.F.R. § 3.309(e) as warranting a presumption of service connection based on exposure to herbicide agents. Nevertheless, the National Academy of Medicine (NAS) Institute of Medicine (IOM) reviewed new research on a potential link between bladder cancer and Agent Orange exposure and concluded that there was now “limited or suggestive” evidence of an association (previously, there was “inadequate or insufficient” evidence of a link). See Veterans and Agent Orange: Update 2014 (released March 10, 2016). In addition, in testimony at a recent hearing before the Senate Veterans’ Affairs Committee on March 26, 2019, the VA Secretary and other VA officials indicated that VA hoped to decide the presumptive status of bladder cancer (and other conditions) within 90 days. Given the foregoing, the Board finds that VA’s duty to assist requires further development of this claim, to include affording the Veteran an examination to determine whether there is a nexus between bladder cancer and presumed exposure to herbicide agents in service. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following: 1. Secure for the claims file all updated records of the Veteran pertaining to evaluation and treatment of his bladder cancer. 2. Then, arrange for an appropriate clinician (such as an oncologist) to review the record and provide an opinion regarding the etiology of the Veteran’s bladder cancer. The consulting provider should opine, with supporting rationale, whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s bladder cancer is related to or the result of his now-established exposure to herbicide agents while in Thailand. (The examiner is informed that even though bladder cancer is not listed as presumed to be associated with herbicide exposure at this juncture, it does not preclude the Veteran from establishing his entitlement to service connection with proof of actual direct causation. See McCartt v. West, 12 Vet. App. 164, 167 (1999).) In formulating the opinion, the examiner should consider findings of the National Academy of Sciences (NAS) Institute of Medicine that there is “limited or suggestive” evidence of an association between Agent Orange exposure and bladder cancer. See Veterans and Agent Orange: Update 2014 (March 10, 2016; available at http://nationalacademies.org/hmd/Reports/2016/Veterans-and-Agent-Orange-Update-2014.aspx). The examiner should note that bladder cancer has not yet been added to the presumptive diseases list (but recent testimony by the VA Secretary and other officials at a hearing before Congress in March 2019 suggests that this may change). Relevant points addressed in the report may include, but are not limited to, why the studies are persuasive or unpersuasive, whether the Veteran has other risk factors for developing bladder cancer, and whether his bladder cancer has manifested in an unusual manner. George R. Senyk Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Debbie Breitbeil, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.