Citation Nr: 20006392 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 16-51 858 DATE: January 28, 2020 ORDER The application to reopen the claim for entitlement to service connection for diabetes mellitus is granted. The application to reopen the claim for entitlement to service connection for hypertension is granted. REMANDED Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure, is remanded. Entitlement to service connection for hypertension, to include as due to herbicide exposure and as secondary to diabetes mellitus, is remanded. FINDINGS OF FACT 1. In a June 2009 final rating decision, the VA regional office (RO) denied service connection for diabetes mellitus. 2. In a February 2009 final rating decision, the RO denied service connection for hypertension. 3. The evidence received since the June 2009 and February 2009 final rating decisions regarding service connection for diabetes mellitus and hypertension is not cumulative or redundant and raises a reasonable possibility of substantiating the Veteran’s claims. CONCLUSIONS OF LAW 1. The criteria for the application to reopen the claim for entitlement to service connection for diabetes mellitus have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. The criteria for the application to reopen the claim for entitlement to service connection for hypertension have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from May 1974 to May 1978. In October 2018, the Veteran testified at a videoconference hearing before the undersigned. A transcript of the hearing is associated with the claims file. New and Material Evidence 1. The application to reopen the claim for entitlement to service connection for diabetes mellitus 2. The application to reopen the claim for entitlement to service connection for hypertension The Veteran’s claims for service connection for diabetes mellitus and hypertension were last denied in June 2009 and February 2009 rating decisions. The RO determined the evidence submitted by the Veteran were not new and material for both claims and declined to reopen. The Veteran did not timely appeal these decisions. Therefore, both the June 2009 and February 2009 decisions became final. Once a decision becomes final, VA will only reopen it and decide it on the merits if new and material evidence is submitted. Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is 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, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). In April 2013, the RO denied the Veteran’s request to reopen his claim for service connection for diabetes mellitus. The Veteran filed a notice of disagreement (NOD) in January 2014 for the issues of service connection for diabetes and hypertension. The NOD was timely for the diabetes mellitus claim because it was filed within one year of the April 2013 rating decision. However, it was untimely for the hypertension claim because the last rating decision pertaining to that issue was issued in February 2009, more than five years prior. Nevertheless, the RO issued a statement of the case (SOC) in October 2016 declining to reopen both claims, and the Veteran filed a timely VA Form 9 in October 2016. Because the RO and the Board have proceeded to treat the Veteran as having filed a timely substantive appeal for the past three years, the Board finds that VA has waived any objection it might have had to the lack of a timely substantive appeal. See Percy v. Shinseki, 23 Vet. App. 37, 46 (2009) (“We hold that, by treating the disability rating matter as if it were part of his timely filed Substantive Appeal for more than five years, VA waived any objections it might have had to the timeliness of filing.”). Therefore, the Board has the responsibility of adjudicating the issue of whether new and material evidence has been submitted in the first instance. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The evidence received since the time of the RO’s June 2009 and February 2009 rating decisions includes testimony from the Veteran concerning his diabetes mellitus and hypertension. This evidence was not before adjudicators when the Veteran’s claims were last finally denied, and it is not cumulative or redundant of the evidence of record at the time of the last decision. The new evidence relates to unestablished facts necessary to substantiate the claims for service connection for diabetes mellitus and hypertension and raises a reasonable possibility of substantiating the claims. Accordingly, the claims are reopened. REASONS FOR REMAND Upon review of the record, the Board finds that the claims must be remanded. The Board sincerely regrets the additional delay caused by this remand but wishes to assure the Veteran that it is necessary for a full and fair adjudication of his claims. 1. Entitlement to service connection for diabetes mellitus is remanded. The Veteran contends his diabetes mellitus was caused by herbicide exposure during his service. The Veteran participated in refugee evacuation off the coast of South Vietnam in April 1975. See December 2019 Military Personnel Record, p. 4. The Veteran testified he was aboard the U.S.S. Dubuque during his October 2018 hearing, and he has also asserted he was aboard the U.S.S. Frederick. See October 2018 Hearing Transcript, p. 4.; see also May 2011 VA 21-4138 Statement in Support of Claim, p. 5. Furthermore, the Veteran’s service treatment records showed the Veteran was aboard the U.S.S. Barbour County in August 1975. In Procopio v. Wilkie, the Court held that the phrase “service in the Republic of Vietnam” encompasses service in-country, on the inland waterways, and in the territorial sea extending 12 nautical miles from the shores of that nation. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). In so doing, the Court found that “service in the Republic of Vietnam” was not limited solely to the landmass or inland waterways of that nation, reversing its previous decision in Haas v. Peake, 544 F.3d 1306 (Fed. Cir. 2008). Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en banc) (finding that veterans who “served in the 12 nautical mile territorial sea of the ‘Republic of Vietnam’” are entitled to presumptive service connection under 38 U.S.C. § 1116, so long as they meet the section’s other requirements). The Board notes the Veteran’s claim folder lacks information to confirm the exact ship the Veteran was aboard in April 1975 as part of his assignment with the 1st Battalion, 4th Marines. Furthermore, the Veteran’s military personnel record showed he was entitled to Hostile Fire Pay for performing assigned duties associated with military operations in a designated hostile fire area during the period of April 2, 1975 to April 15, 1975. However, the Board finds more information is necessary to determine whether the Veteran is entitled to the presumption he was exposed to herbicide agents during service. It is unclear whether the Veteran was aboard the U.S.S. Dubuque, the U.S.S. Frederick, the U.S.S. Barbour County or all three ships. It is also not clear whether any of those ships operated within 12 nautical miles of the shores of Vietnam. Accordingly, further development is required. Finally, the Veteran testified at his Board hearing that he was diagnosed with diabetes mellitus within a year after service. On remand, the RO should assist the Veteran in obtaining any outstanding medical records documenting treatment and/or diagnosis shortly after service. 2. Entitlement to service connection for hypertension is remanded. The Veteran contends his hypertension was caused by herbicide agent exposure, or in the alternative, is secondary to his diabetes mellitus. Therefore, this claim is inextricably intertwined with the claim for entitlement to service connection for diabetes mellitus. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that claims are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). Based on the discussion above, a remand is necessary to determine the Veteran’s claim. In addition, in the event that exposure to herbicide agents is confirmed, additional medical evidence is needed to determine whether the Veteran’s hypertension is related to such exposure. In that regard, the Board notes that the National Academy of Sciences (NAS) 2018 update identified a relationship between herbicide agent exposure and hypertension. On remand, the VA examiner must consider and address the NAS study. Finally, the Veteran testified at his Board hearing that he was diagnosed with hypertension within a year after service. On remand, the RO should assist the Veteran in obtaining any outstanding medical records documenting treatment and/or diagnosis shortly after service. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any outstanding records from providers of pertinent medical treatment for his diabetes mellitus and/or hypertension that the Veteran may wish VA to assist him in obtaining for the record, particularly for those providers that treated those conditions shortly after service. 2. Obtain records concerning the Veteran’s assignment with the 1st Battalion, 4th Marines during his service and associate all documents with the Veteran’s claims folder. 3. In light of Procopio, use appropriate resources to determine what vessel the Veteran was assigned to, including the U.S.S. Dubuque, the U.S.S. Frederick, and the U.S.S. Barbour County, and whether any of vessels the Veteran was on operated within the 12 nautical mile territorial sea of the Republic of Vietnam. The AOJ is specifically directed to consider the periods during which the U.S.S. Dubuque, the U.S.S. Frederick, and the U.S.S. Barbour County, were operating from April 2, 1975 to April 18, 1975 and in August 1975. All attempts at verification should be associated with the claims file. If verification is not possible, a formal finding should be made and also associated with the claims file. 4. The AOJ must determine and explain the basis for the Veteran’s Hostile Fire Pay for the period of April 2, 1975 to April 18, 1975. See December 2019 Military Personnel Record, p. 4. Associate with the claims file a memorandum documenting the basis. 5. After the completion of remand directives #2 and 3, if exposure to herbicide agents IS NOT ESTABLISHED, and if medical evidence HAS BEEN ASSOCIATED WITH THE FILE DOCUMENTING DIABETES MELLITUS SHORTLY AFTER SERVICE, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s diabetes mellitus. The claims file should be made available to the examiner for review in connection with the examination. Based on review of the record and examination of the Veteran, the examiner should respond to the following: (a.) Is it at least as likely as not (i.e., at least a 50 percent probability) that the Veteran’s diabetes mellitus had its onset in or is related to service? 6. After the completion of remand directives #2 and 3, if exposure to herbicide agents is established or if medical evidence has been associated with the file documenting diabetes mellitus or hypertension shortly after service, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s hypertension. The claims file should be made available to the examiner for review in connection with the examination. Based on review of the record and examination of the Veteran, the examiner should respond to the following: (a.) Is it at least as likely as not (i.e., at least a 50 percent probability) that the Veteran’s hypertension had its onset in or is related to service, to include a presumed exposure to herbicide agents? In rendering such opinion, the examiner must take into account and address the 2018 NAS update identifying a relationship between herbicide agent exposure and hypertension. (b.) It is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran’s hypertension was caused or aggravated by his diabetes mellitus? • If the examiner finds that the Veteran’s hypertension was aggravated by his diabetes mellitus, then he/she should specify the baseline level of disability of the disability prior to aggravation and the permanent, measurable level of increased impairment due to the diabetes mellitus. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions, including, but not limited to the Veteran’s lay statements. In considering whether herbicide exposure caused the Veteran’s hypertension, please keep in mind that the mere fact that VA has not included a certain diagnosis on a list of presumptive conditions is not, in and of itself, a sufficient rationale for finding that the condition is not related to service. In other words, the Board needs an opinion as to the likelihood that the Veteran’s hypertension, without regard to the conditions VA recognizes as being due to herbicide exposure, was nevertheless at least as likely as not related to his exposure to herbicides in Vietnam. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. L. Park, 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.