Citation Nr: 20008060 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 17-37 802 DATE: January 30, 2020 ORDER New and material evidence having been presented, the appeal to reopen the claim for service connection for type II diabetes mellitus (diabetes) is granted. REMANDED Entitlement to service connection for diabetes, to include as due to herbicide agent exposure is remanded. Entitlement to service connection for prostate cancer, to include as due to herbicide agent exposure is remanded. Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as due to herbicide agent exposure is remanded. Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as due to herbicide agent exposure is remanded. Entitlement to service connection for cataracts, to include as due to herbicide agent exposure is remanded. Entitlement to service connection for ischemic heart disease, to include as due to herbicide agent exposure is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. An unappealed July 2011 rating decision denied a claim for service connection for diabetes; new and material evidence was not received within one year of that decision. 2. Evidence received since the July 2011 rating decision is not cumulative, was not previously considered by decision makers, and raises a reasonable possibility of substantiating the claim for service connection for diabetes. CONCLUSIONS OF LAW 1. The July 2011 rating decision that denied service connection for diabetes is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. New and material evidence has been received to warrant reopening the claim for service connection for diabetes. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Navy from November 1968 to October 1970. For his meritorious service, the Veteran was awarded the Vietnam Service and Campaign Medals. This appeal comes to the Board of Veterans’ Appeals (Board) from an October 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified at a video conference hearing held before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. During the hearing, the Veteran waived agency of original jurisdiction (AOJ) consideration of evidence submitted after the statement of the case (SOC) or supplemental SOC (SSOC). 1. Whether new and material evidence has been received to reopen the claim for service connection for diabetes. A previously denied claim may be reopened by submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Evidence is new if it has not been previously submitted to agency decision makers. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or 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. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is generally to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the United States Court of Appeals for Veterans Claims (Court) clarified that the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. The Veteran’s claim for diabetes was originally denied in a July 2011 rating decision based essentially on a finding that the there was no evidence of the condition during service or manifest to a compensable degree within the applicable presumptive period, and there was no evidence to show that the Veteran was exposed to herbicide agents. The Veteran did not appeal the July 2011 rating decision or submit new and material evidence within one year of notice of that decision; therefore, it is final. 38 U.S.C. § 7105; 38 C.F.R. § 3.156(a), (b). The evidence received since the July 2011 rating decision includes a statement by the Veteran that during his time in the military, he was aboard the U.S.S. America and was exposed to herbicide contaminated water because the ship processed sea water and fresh water run-off to produce drinking, cooking, and bathing water. The Board finds that this new evidence relates to an unestablished fact necessary to substantiate the claim of service connection and is sufficient to reopen the claim. See Shade, 24 Vet. App. at 117-18. Thus, the Board finds that the additional evidence is both new and material, and the claim for entitlement to service connection for diabetes is reopened. REASONS FOR REMAND 1. Entitlement to service connection for DMII, to include as due to herbicide agent exposure is remanded. 2. Entitlement to service connection for prostate cancer, to include as due to herbicide agent exposure is remanded. 3. Entitlement to service connection for cataracts, to include as due to herbicide agent exposure. 4. Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as due to herbicide agent exposure is remanded. 5. Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as due to herbicide agent exposure is remanded. 6. Entitlement to service connection for ischemic heart disease is remanded. The Veteran is seeking service connection for DMII, prostate cancer, cataracts, and bilateral peripheral neuropathy due to his alleged herbicide agent exposure. The Veteran claims that he was exposed to herbicide agents while he was stationed aboard the Naval ship, U.S.S. America. He claims that the ship carried and delivered herbicides during that time, and he was exposed to herbicide contaminated water because the ship processed sea water and fresh water run-off to produce drinking, cooking, and bathing water. He asserts that the ship deployed to Vietnam. To establish presumptive exposure to herbicide agents, the record must show that the Veteran served in the Republic of Vietnam, to include the 12-natuical-mile territorial sea. Procopio v. Wilkie, 913 F.3d 1371, 1379 (Fed. Cir. 2019). The Veteran’s military personnel records show that the Veteran served aboard U.S.S. America in a designated combat zone in the continuous waters off Vietnam. However, it does not show whether the Veteran’s ship came within the 12 nautical mile zone of the Republic of Vietnam. Thus, the Board finds that additional development must be completed to determine whether the Veteran’s service aboard the U.S.S. America was within the 12-nautical-mile territorial waters of the Republic of Vietnam. 7. Entitlement to service connection for bilateral hearing loss is remanded. 8. Entitlement to service connection for tinnitus is remanded. As for the Veteran’s claims for bilateral hearing loss and tinnitus, the Veteran claims that while he was in the military, he was exposed to loud noise trauma due to his work as a communications radioman in the flight deck where jets would fly over. See November 2019 Hearing Transcript. He claims that this caused his hearing loss and tinnitus. As a VA examination has not been afforded to the Veteran to determine the nature and etiology of his tinnitus and bilateral hearing loss, a remand is necessary to afford the Veteran such an examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Obtain any outstanding VA or private treatment records and associate with the claims file. Specifically, the RO should obtain VA treatment records from June 2017 to present. 2. Undertake any necessary development to determine whether the Veteran’s duties aboard the U.S.S. America (CVA-66) would have taken him within the 12 nautical mile zone of the Republic of Vietnam. Such action may include obtaining and reviewing the deck logs of the U.S.S. America (CVA-66), from May 1970 to September 1970 in order to ascertain its whereabouts while the Veteran served aboard the ship, conducting a further inquiry with the JSRRC, and any other development deemed appropriate. All efforts in this regard should be clearly documented in the claims file. 3. After the above development has been completed, if it is determined that the Veteran has had herbicide agent exposure, schedule the Veteran for VA examinations to determine the nature and etiology of his prostate cancer, cataracts, bilateral peripheral neuropathy of the upper extremities, and diabetes. The record and a copy of this remand must be made available and reviewed by the examiner in conjunction with the examination. All necessary tests should be completed. The VA examiner should address the following: (a.) Whether it is at least as likely as not that the Veteran has early-onset bilateral peripheral neuropathy of the upper extremities? (b.) Whether it is at least as likely as not that the Veteran’s diabetes, prostate cancer, cataracts, and/or bilateral peripheral neuropathy are related to his naval service, to include herbicide agent exposure? (c.) Whether it is at least as likely as not that the Veteran’s bilateral peripheral neuropathy is caused by, proximately due to, and/or aggravated by his DMII? 4. Schedule the Veteran for a VA examination to determine the nature and etiology of his tinnitus and bilateral hearing loss. The record and a copy of this remand must be made available and reviewed by the examiner in conjunction with the examination. All necessary tests should be completed. The VA examiner should address the following: (a.) Whether it is at least as likely as not that the Veteran’s bilateral hearing loss and/or tinnitus are related to his naval service, to include loud noise exposure? Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Crawford, 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.