Citation Nr: 20007362 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 18-00 379 DATE: January 30, 2020 ORDER New and material evidence having been received, the Veteran’s claim for entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure is reopened. Service connection for diabetes mellitus, type II, to include as due to herbicide exposure is granted. FINDINGS OF FACT 1. The July 2012 rating decision denying service connection for diabetes mellitus type II, to include as due to herbicide exposure is final. The Veteran did not complete a timely appeal of that decision. 2. Evidence added to the claims file since July 2012 rating decision is new and material, as it contains evidence not previously considered that has some tendency to substantiate the Veteran's claim for service connection for diabetes mellitus type II, to include as due to herbicide exposure. 3. The evidence is at least in equipoise as to whether the Veteran was exposed to herbicide agents during his period of service in Thailand. CONCLUSIONS OF LAW 1. The July 2012 rating decision as to the denial of service connection for diabetes mellitus type II, to include as due to herbicide exposure was a final decision. 38 U.S.C. §§ 7103, 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence sufficient to reopen the claim of service connection for diabetes mellitus type II, to include as due to herbicide exposure has been received after the last final decision. 38 U.S.C. § 5018; 38 C.F.R. § 3.156 (a), (c). 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. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from March 1968 to March 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision from a Regional Office (RO) for the Department of Veterans Affairs (VA). 1. New and material evidence Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened or allowed. 38 U.S.C. § 7105 (c), (d)(3) (2012); 38 C.F.R. § 20.1103 (2017). 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; 38 C.F.R. § 3.156 (a). "New evidence" means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of the evidence of record at the time of the last prior denial. 38 C.F.R. § 3.156 (a). Materiality has two components; first, that the new evidence pertains to the reason(s) for the prior denial, and second, that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Here, the Veteran has requested that VA reopen his claim for service connection for diabetes mellitus. The Veteran's claim was denied in July 2012. At that time the RO considered evidence in the form of the Veteran's service records; medical treatment records; and the Veteran's personal statements made in support of his claim. The RO's denial was based on no evidence of a diagnosis of diabetes in service or within one year of service, no evidence of a nexus to service and a lack of conclusive evidence that the Veteran had been exposed to Agent Orange during his service. The Veteran did not submit a substantive appeal, and no new and material evidence was received during the subsequent year. Accordingly, the July 2012 rating decision became final. 38 C.F.R. § 20.1103. Since the July 2012 decision became final, additional evidence has been received in the form of additional medical records; new statements provided by the Veteran; photographs and maps; This evidence is new as it was not part of the record at the time the prior decision became final. It is material because it contributes to a more complete picture of the circumstances surrounding the Veteran's service, and specifically of the Veteran's exposure to herbicide agents during service. See Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). The evidence meets the "low" threshold for raising a reasonable probability of substantiating the claim. As new and material evidence has been received, reopening the previously denied claim of entitlement to service connection for diabetes mellitus is warranted. To this limited extent, the petition to reopen is granted. 2. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease 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). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2017) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran asserts that he has diabetes mellitus as a result of exposure to herbicides during active duty. As an initial matter, the record indicates that the Veteran has been diagnosed with diabetes mellitus. Therefore, the requirement for a current disability has been met. Certain diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.307 (a)(6). If a Veteran served in the U.S. Air Force in Thailand during the Vietnam era at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat or Don Muang Royal Thai Air Force Base (RTAFB) as an Air Force 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, herbicide exposure should be conceded on a facts-found or direct basis. The diseases that are entitled to presumptive service connection based on herbicide exposure are listed in 38 C.F.R. § 3.309 (e). Under 38 C.F.R. § 3.309 (e), presumptive service connection based on Agent Orange exposure is available for type II diabetes. In his April 2017 statement, the Veteran asserts that he spent much of his time driving from Khon Kaen to Udorn RTAFB and that every time he entered the base had to go through the perimeter. The Veteran added that his unit not only delivered munitions to the airstrip located near the perimeter, but they must unhook the trailers and hook unto empty ones to them back to Khon Kaen. In his October 2017 NOD, the Veteran stated that "the new part of this request is that the VA has added Udorn, Thailand to the list of approved location. I was stationed in Khon Kaen Thailand and my company the 569th transportation company was the last part of hauling bombs to Udorn Air Base. Our base also had bombs at all times on our base waiting to be transported to Udorn Air Base”. The Veteran, in a November 2017 statement, stated that he was stationed at an Army base in Khon Kaen, Thailand from November 1968 thru November 1969 and that his transportation company 569th was responsible to deliver semi loads of bombs to the Udorn RTAFB, every day. Service treatment records show that the Veteran was treated at USAF dispensary in Udorn, Thailand in January 1969 and in Khon Kaen dispensary in October 1969. Responses from the JSRRC via the Defense Personnel Records Information System (DPRIS) received in April 2012 confirmed that Unit 569th Transportation Company was stationed at Camp Khon Kaen, Thailand and that its mission was to provide ground transportation of cargo to all Army and Air Force installations in Northeast Thailand, primary importance was placed on the expeditious delivery of classified monitions to the air bases. The Veteran's service personnel records reference that he was assigned to 569th Trans Co. The Board acknowledges that the Veteran did not serve in a position which VA has conceded as being exposed to herbicides on the base; however, the Board finds that the Veteran's verified assigned mission to transport ammunitions to all Army and Air Force installations in Northeast Thailand required him to travel through the perimeter at least twice a day, every day. Therefore, the Board finds that based on the Veteran's competent and credible assertions regarding his travel through the base perimeter while serving at Udorn RTAFB, Thailand, all reasonable doubt should be resolved in his favor and it is at least as likely as not that he meets the criteria for conceding exposure to herbicide agents during active military service in Thailand. Accordingly, service connection for diabetes mellitus, type II is granted on a presumptive basis. 38 U.S.C. § 5107; 38 C.F.R. § 3.102, 3.309(e). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Romero-Sanchez, 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.