Citation Nr: 20002183 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 16-28 851 DATE: January 9, 2020 ORDER New and material evidence having been received, the petition to reopen the claim of service connection for diabetes mellitus, type II, is granted. New and material evidence having been received, the petition to reopen the claim of service connection for ischemic heart disease, to include coronary artery disease, is granted. Entitlement to service connection for diabetes mellitus, type II, is granted. Entitlement to service connection for ischemic heart disease, to include coronary artery disease, is granted. FINDINGS OF FACT 1. An unappealed January 2013 rating decision denied service connection for diabetes mellitus, type II. Evidence received since the January 2013 rating decision is neither cumulative nor redundant of the evidence of record at the time of the last final denial and relates to an unestablished fact necessary to substantiate the claim. 2. An unappealed January 2013 rating decision denied service connection for heart disease. Evidence received since the January 2013 rating decision is neither cumulative nor redundant of the evidence of record at the time of the last final denial and relates to an unestablished fact necessary to substantiate the claim. 3. The probative evidence of record is in favor of a finding that the Veteran had in-country service in Thailand and performed duties around the base perimeter and along the flight line on the base at U-Tapao. 4. Prior to his death, the Veteran had diagnoses of ischemic heart disease and diabetes mellitus, type II, which are presumed to be related to exposure to herbicides in active service. CONCLUSIONS OF LAW 1. New and material evidence has been received since the January 2013 rating decision, denying service connection of diabetes mellitus, type II. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 2. New and material evidence has been received since the January 2013 rating decision, denying service connection of coronary artery disease status post stent placement (claimed as heart disease). 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The criteria for entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure, have been met. 38 U.S.C. §§ 1110, 1112, 1116, 1131,1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 4. The criteria for entitlement to service connection for ischemic heart disease to included coronary artery disease, have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1969 to January 1973. The Veteran passed away in October 2015. The Appellant is the Veteran’s surviving spouse and was substituted for the Veteran in May 2019. This case is before the Board of Veterans’ Appeals (Board) from a May 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Appellant appeared before the undersigned Veterans’ Law Judge at a September 2019 hearing. New and Material Evidence In January 2013, Veteran’s claims of entitlement to service connection for coronary artery disease status post stent placement (claimed as heart disease) and diabetes mellitus, type II were denied. The AOJ cited no in-service incurrence and no nexus to service, to include herbicide exposure, as the reasons for denial. A notice of disagreement was not filed and the unappealed decision became final. After a claim has become final, a claimant must present new and material evidence in order to reopen the previously denied claim. New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). For the purpose of reopening a claim, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Since the January 2013 denial, the Veteran, prior to his death, and the Appellant, during the September 2019 hearing, presented additional detail with regard to the Veteran’s contended herbicide exposure (1/29/2015 VA 21-4138 Statement In Support of Claim; 3/18/2016 NOD and 9/26/2019 Hearing Transcript, pgs. 3-6). The Veteran indicated he was exposed to herbicides during his service in Thailand, to include maintaining jet engines along the perimeter at U-Tapao Air Force Base. The Veteran also stated he walked the flight and fence lines daily. During the September 2019 hearing, the Appellant testified that the Veteran had told her that he had to patrol right along the fence line. The Board, presuming credibility and the possibility of substantiating the claim, finds that evidence provided by the Veteran is “new” as it had not been previously submitted to agency decision makers, and “material” as it directly pertains to the basis for the prior final denial, specifically a current diagnosis, and in-service occurrence. Accordingly, the Board finds that new and material evidence has been received since the January 2013 decision to reopen both claims of entitlement to service connection for diabetes mellitus, type II and heart disease. The petitions to reopen the claims of service connection for diabetes mellitus, type II, and ischemic heart disease, to include coronary artery disease are granted. Service Connection The Appellant contends the Veteran’s diabetes mellitus, type II and heart disease, recharacterized herein as ischemic heart disease, to include coronary artery disease, are associated with herbicide exposure occurring during his service at U-Tapao Air Force Base, Thailand, while working on the flight line and walking the perimeter. For certain diseases with a relationship to herbicide agent exposure, a presumption of service connection arises if the disease manifests to a degree of 10 percent or more following service in the Republic of Vietnam any time during the period from January 9, 1962, to May 7, 1975, or following service in a unit that operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have been applied at any time during the period from April 1, 1968, to August 31, 1971. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). VA procedures for verifying exposure to herbicides in Thailand during the Vietnam Era are detailed in the VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C ("M21-1MR"). VA 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 as evidenced in a declassified Vietnam era Department of Defense document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." 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. This allows for presumptive service connection of the diseases associated with herbicide exposure. 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. 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. However, this applies only during the Vietnam Era, from February 28, 1961, to May 7, 1975. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10. (q). Prior to his death, the Veteran was diagnosed with diabetes mellitus, type II and ischemic heart disease (1/29/2015 VA Examination; 1/29/2015 VA 21-0960A-1 Ischemic Heart Disease Disability Benefits Questionnaire). The Board recognizes that these claimed disabilities are diseases associated with exposure to certain herbicide agents as defined at 38 C.F.R. § 3.309(e). Because the post-service private medical records show that the Veteran has diagnoses of diabetes mellitus type II and ischemic heart disease, the pending claims of service connection hinge on the whether the evidence of record establishes that the Veteran was exposed to herbicides during service. As both claims rely on the same determination, that is nexus to service, specifically in-service herbicide exposure, to establish presumptive service connection, the Board will consider the two claims simultaneously. The Veteran indicated in his March 2016 notice of disagreement that he was exposed to herbicides during his service in Thailand. In a statement in support of his claim the Veteran elaborated that in 1970 he landed in the Da’Nang airport in the Republic of Vietnam, to secure transportation to Thailand, remaining in Da’Nang for a few hours. The Veteran also stated that he maintained jet engines along the perimeter at U-Tapao Air Force Base in Thailand. The Veteran walked the flight line perimeter daily to inspect the fence of breaches and to look for foreign materials that could endanger the aircraft or equipment. During the September 2019 hearing, the Appellant testified that the Veteran had told her that he had to patrol right along the fence line to check that things weren’t thrown in there or sabotaged and that he had to go check the runway and make sure nothing was thrown onto that, that it was clear. She recalled the Veteran saying his duties included patrolling around the fence line to make sure everything, the fence hadn’t been cut. Although the Veteran’s DD 214 indicates that he did not have service in Indochina, Vietnam or Korea, the Veteran's September 1971 performance evaluation verifies his support of the Southeast Asia conflict during a temporary duty assignment to U-Tapao Air Base. The Veteran's performance appraisal praises his ability to move from varying tasks in aircraft maintenance, upkeep of ground support equipment and fighting the never-ending battle of corrosion control. Also noted was that the Veteran's bearing and attitude were above reproach, and that he continually carried out more than his fair share of the workload (3/03/2015 STR – Medical, p. 24). The Board finds the Veteran’s performance appraisal to be of significant probative value. The Board finds the appraisal verifies the duties performed by the Veteran in Thailand as described by both the Veteran prior to his death and the Appellant during the September 2019 hearing. The Board also finds the appraisal indicates the Veteran performed duties beyond those assigned and likely resulted in herbicide exposure. Taken in conjunction with the competent and credible statements by the Veteran prior to his death, and the competent and credible testimony of the Appellant during the September 2019 hearing, the Board has determined the evidence of record is in favor of a finding that the Veteran was exposed to herbicide agents during his service in Thailand at U-Tapao Air Base. As herbicide exposure has been conceded, and the medical evidence of record confirms the Veteran’s diagnoses with diseases associated with exposure to herbicide agents pursuant to 38 C.F.R. § 3.309(e)., the Board finds that service connection for diabetes mellitus type II and coronary artery disease is warranted on a presumptive basis. Based on the foregoing, the claims of entitlement to service connection for diabetes mellitus, type II, and heart disease are granted. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. A. Myers 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.