Citation Nr: 20004265 Decision Date: 01/17/20 Archive Date: 01/17/20 DOCKET NO. 19-17 039 DATE: January 17, 2020 ORDER New and material evidence having been received, the claim of entitlement to service connection for diabetes mellitus, type II (diabetes), to include as due to exposure to herbicides is reopened, and to this extent only, the appeal is granted. REMANDED Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicides is remanded. FINDINGS OF FACT 1. A March 2012 rating decision denied service connection for diabetes. The rating decision was not appealed nor was new and material evidence received within the appeal period. 2. The evidence received since the last rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for diabetes, to include as due to exposure to herbicides and raises a reasonable possibility of substantiating that claim. CONCLUSIONS OF LAW 1. The March 2012 decision that denied service connection for diabetes is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received to reopen a claim of entitlement to service connection for diabetes, to include as due to herbicide exposure. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from March 1971 to June 1973 and as an Air National Guard and Air Force Reservist from February 1974 to August 1974. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s Notice of Disagreement from July 2018 also initially included a claim for chronic obstructive pulmonary disease (COPD), but the Veteran has not filed a VA Form 9 in regards to COPD, as such that claim is not before the Board at this time. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicides. The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C. § 7104(b); King v. Shinseki, 23 Vet. App. 464, 468 (2010); See DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006). However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. See 38 U.S.C. § 5108. 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). In determining whether evidence is new and material for purposes of deciding whether a claim should be reopened, the evidence is presumed to be credible. Savage v. Gober, 10 Vet. App. 488, 493–94 (1997); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Only in cases in which the newly submitted evidence is “inherently false or untrue” does the presumption of credibility not apply. Duran v. Brown, 7 Vet. App. 216, 220 (1994). In this case, the claim for entitlement to service connection for diabetes was initially addressed in March 2012. The RO stated that the evidence does not show an event, disease or injury in service. The RO denied the Veteran’s diabetes claim in its March 2012 rating decision. The Veteran did not appeal the denial of the claim and the March 2012 decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In reviewing the evidence added to the claims folder since the March 2012 denial, the Board finds that additional evidence has been received which is sufficient to reopen the Veteran’s claim for diabetes mellitus. This includes Veteran lay statements in the Veteran’s 2019 Form 9 and VA treatment records from January 2013. This evidence was not available at the time of the March 2012 rating decision and relates to an unestablished fact necessary to prove the claim. New and material evidence has been received, the claim for diabetes mellitus, type II may be reopened. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). REASONS FOR REMAND Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicides. The Veteran claims that his diabetes mellitus is the result of exposure to herbicides. Initially, the Veteran claimed that while serving in the Air Force, he was “TDY to Vietnam twice, both times for 15 days, I am diabetic and I have heart attack, I wish to file claims for diabetes and ischemic heart disease due to agent orange.” In a March 2018 rating decision, the RO stated that the Veteran’s records did not show that he served in Vietnam, but noted that the Veteran did serve at Rickenbacker Air National Guard base in Ohio, a confirmed site containing contaminated c-123 air crafts. The medical evidence reflects that the Veteran has been diagnosed with diabetes mellitus type. II. See January 2013 CAPRI records. Notably, in a June 2018 Correspondence, the Veteran stated that while serving in the Air National Guard in 1974, he removed damaged panels from aircraft (C123) and replaced them with new ones. He further stated that he has had complications with his breathing since he got out of the military and has developed type 2 diabetes. An individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. For purposes of this paragraph, "regularly and repeatedly operated, maintained, or served onboard C-123 aircraft" means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code indicating duties as a flight, ground maintenance, or medical crew member on such aircraft. 38 C.F.R. § 3.307 (a)(6)(v). VA has also established procedures for claims based on exposure to Agent Orange through contaminated C-123 aircraft. See M21-1, IV.ii.1. H.3. a. VA has published a list of military personnel who had regular and repeated exposure to contaminated Operation Ranch Hand C-123s, used to spray Agent Orange in Vietnam, as flight, maintenance, or medical crew members. See http://www.benefits.va.gov/compensation/docs/AO_C123_AFSpecialityCodesUnit.pdf. To this extent, while the Veteran's service records show that he served at Lockbourne/Rickenbacker Air Force Base, Ohio, a base that was known to have aircraft that sprayed Agent Orange during the Vietnam era; the Veteran’s Air Force Specialty or Squadron is not enumerated in the list. As a result, further development is needed in order to determine whether the Veteran’s statements that he was a sheet metal worker on C-123’s at the Rickenbacker Air Force Base caused him to have regular and repeated exposure to Agent Orange. Further, the Board notes that although the Veteran’s Air Force Specialty or Squadron is not enumerated in the list of military personnel who had regular and repeated exposure to contaminated Operation Ranch Hand C-123s, the Veteran is not precluded from establishing service connection on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). The Veteran has not been afforded a VA examination nor has an opinion been obtained to determine the etiology of his diabetes mellitus. As the evidence indicated that the Veteran has current diabetes that may be associated with his military service, a remand is also warranted in order to obtain a medical opinion. The matters are REMANDED for the following action: 1. Verify whether as a sheet metal worker, the Veteran had regular and repeated exposure to contaminated C-123’s at the Rickenbacker Air Force Base. 2. After the development above has been completed, the AOJ should determine whether there is enough evidence to make a plausible determination that the Veteran was exposed to Agent Orange in service. 3. If sufficient evidence is not found, obtain an examination from an appropriate physician to address the nature and etiology of the Veteran’s diabetes mellitus. The entire claims file must be reviewed by the physician. 4. The physician should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diabetes had its onset in service or is otherwise related to service. 5. The physician must address the Veteran’s lay statements of record, including his documented duties while at the Rickenbacker Air Force Base. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Johnson, Associate 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.