Citation Nr: 20021074 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 14-13 032 DATE: March 24, 2020 ORDER The petition to reopen the previously denied claim of entitlement to service connection for diabetes mellitus, type II (diabetes), to include as secondary to herbicide agent exposure, is granted. REMANDED Entitlement to service connection for coronary artery disease (CAD), to include as secondary to herbicide agent exposure, is remanded. Entitlement to service connection for diabetes, to include as secondary to herbicide agent exposure, is remanded. FINDINGS OF FACT 1. In an unappealed August 2010 rating decision, the RO denied a petition to reopen a claim for service connection for diabetes. 2. Evidence received since the August 2010 rating decision was not previously considered by agency decision makers; is not cumulative and redundant of evidence already of record; relates to an unestablished fact; and raises a reasonable possibility of substantiating the Veteran’s claim for diabetes. CONCLUSIONS OF LAW 1. The August 2010 rating determination is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. The criteria to reopen the claim of entitlement to service connection for diabetes mellitus, type II have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to January 1973, with additional periods of active duty for training (ACDUTRA) with the Maine National Guard from January 1982 to January 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The issues on appeal previously were denied by the Board in September 2017. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2018 Order, pursuant to an August 2018 Joint Motion for Remand (JMR), the Court vacated the Board’s September 2017 decision and remanded the claims for action consistent with the terms of the parties’ JMR. In October 2014, the Veteran testified during a Travel Board hearing before Veterans Law Judge (VLJ) Kilcoyne. A transcript of the hearing is of record. In August 2019, following return from the Court and pursuant to the Veteran’s request, the Veteran testified during a videoconference hearing addressing the same issues before VLJ Crawford. See Quinn v. Wilkie, 31 Vet. App. 284 (2019). At the hearing, the Veteran was afforded the opportunity for a hearing before a third VLJ prior to having the matter adjudicated by a three-judge panel. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). At the August 2019 hearing, the Veteran declined a third hearing on the record. Thus, no further hearing will be conducted, and the issues are ripe for adjudication. Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for diabetes, to include as secondary to herbicide agent exposure. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. Id. The evidence need only relate to one unestablished fact necessary to substantiate the claim to be material. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). 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. 38 C.F.R. § 3.156(a). When determining whether the submitted evidence meets the definition of new and material, VA must consider whether the new evidence, when considered with the evidence of record, at least triggers VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 118. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection for diabetes was initially denied in a November 2006 rating decision on the basis that there was no showing of any in-service event or any nexus between the Veteran’s diabetes and active military service. An August 2010 rating decision denied a petition to reopen the claim on the basis that no new and material evidence was received. The Veteran did not initiate an appeal of that decision and thus, it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. No new and material evidence pertinent to the claim was constructively or physically of record within one year of the determination. 38 C.F.R. § 3.156(b); see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). The Veteran submitted a petition to reopen his claim in December 2012. The appeal stems from this claim. At the time of the August 2010 rating decision, the pertinent evidence of record included service treatment records, VA treatment records, private treatment records, military personnel records, statements from the Veteran describing his reported exposure to herbicide agents at Canadian Forces Base Gagetown, Canada (Gagetown), and a response from USASCRUR regarding the Veteran’s possible exposure to herbicide agents. Since the most recent final denial, private treatment records, an October 2016 VHA opinion, hearing testimony, a private nexus opinion, and an August 2007 research paper titled CFB Gagetown Herbicide Spray Programs Fact-Finder’s Report were added to the record. As this evidence was not before VA or considered in the prior denial, it is new. The August 2007 Fact-Finder’s Report details herbicide use at Gagetown from 1954 to 2004. As this evidence relates to whether the Veteran was exposed to herbicides at Gagetown, an unestablished fact necessary to substantiate the claim, it is material. Accordingly, new and material evidence has been received. The request to reopen the prior denial is granted. 38 C.F.R. § 3.156. To this limited extent only, the appeal is granted. REASONS FOR REMAND Entitlement to service connection for CAD and diabetes, to include as secondary to herbicide agent exposure. The Veteran contends that his current diabetes and CAD are related to his period of ACDUTRA service in August 1984 at Gagetown. Specifically, he contends that he was exposed to herbicide agents at that time by drinking contaminated water and by inhalation. See October 2014 and August 2019 hearing testimony. In the August 2018 JMR, the parties agreed that the Board erred when it relied, in part, on an inadequate medical opinion. The JMR found that an October 2016 VA medical opinion was inadequate because it did not adequately address whether the Veteran’s disabilities were directly related to service. Subsequent to the August 2018 JMR, in January 2020, the Veteran submitted an August 2007 Fact-Finder’s Report conducted by Dr. D.F. for the Canadian Government. This report detailed, to the extent possible, the use of herbicides at Gagetown from 1952 to 2004, along with any potential exposure and health risks associated with the herbicide use. The report notes that from 1956 to 2004, at least 24 products and 14 active ingredients were applied, with some used over the course of many years and some that were only used once. Further, Dr. D.F. indicated that individuals, including soldiers, who were not directly involved in the herbicide application process may have been subjected to site-related exposures such as incidental soil ingestion, direct dermal contact with soil, dust inhalation, and the consumption of wild berries. In light of the foregoing, the Board finds that a remand is necessary in order to obtain a new medical opinion that considers the August 2007 study and addresses whether it is at least as likely as not that the Veteran’s CAD and/or diabetes are related to any herbicide exposure during the Veteran’s service at Gagetown in August 1984. The Board acknowledges the September 2019 private opinion by Dr. R.P. Dr. R.P. opined that the Veteran’s current CAD and diabetes were service related because Agent Orange was used at Gagetown and Agent Orange is known as a causal factor in both conditions. The Board finds that the opinion is inadequate. Specifically, the opinion relies on the fact that Agent Orange was used at Gagetown and the Veteran was exposed to such. However, in a November 2006 reply, the U.S. Army and Joint Services Records Research Center (JSRRC) noted that a technical report verifies that basic desiccants of Agent Orange, a specific type of herbicide, only was used at the base for a short period in 1966 and 1967, approximately fourteen years prior the Veteran’s ACDUTRA service. The August 2007 report shows that while a number of herbicides were used during the time of the Veteran’s ACDUTRA service, Agent Orange was not one of the identified herbicides. Thus, the Board finds that the opinion is based on an inaccurate factual premise and is insufficient to grant this claim. The matters are REMANDED for the following action: 1. Obtain a VA medical opinion regarding the etiology of the Veteran’s diabetes and coronary artery disease from a qualified medical professional. The need for a physical examination is left to the discretion of the VA examiner. The examiner must review the entire claims file and a copy of this Remand. The examiner must opine: a) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s diabetes mellitus, type II had its onset in, or is otherwise related to, active service, to include his reported exposure to herbicides at Gagetown during ACDUTRA. b) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s coronary artery disease had its onset in, or is otherwise related to, active service, to include his reported exposure to herbicides at Gagetown during ACDUTRA. (Continued on the next page)   In formulating the opinions, the examiner should consider the August 2007 Fact-Finder’s Report by Dr. D.F. that details the potential types and quantities of herbicides the Veteran may have been exposed to during his period of ACDUTRA. A complete rationale must be provided for all opinions expressed. The rationale must consider and discuss the pertinent evidence of record, to include the Veteran’s lay statements. K.A. KENNERLY Acting Veterans Law Judge Board of Veterans’ Appeals MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mortimer, 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.