Citation Nr: 20021361 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 14-43 830 DATE: March 25, 2020 ISSUES 1. Whether new and material evidence has been received to reopen the claim for service connection for diabetes mellitus type II (DM) for substitution purposes. 2. Whether new and material evidence has been received to reopen the claim for service connection for diabetic glaucoma (vision disability) for substitution purposes. 3. Whether new and material evidence has been received to reopen the claim for service connection for hypertension (HTN) for substitution purposes. 4. Entitlement to service connection for an acquired psychiatric disability claimed as posttraumatic stress disorder (PTSD) for substitution purposes. 5. Entitlement to service connection for DM for substitution purposes. 6. Entitlement to service connection for vision disability for substitution purposes. 7. Entitlement to service connection for HTN for substitution purposes. ORDER The Board having determined that new and material evidence has been received, the claims for service connection for DM; vision disability; and HTN for substitution purposes are reopened, and to that extent only the claims are granted. Entitlement to service connection for DM for substitution purposes is granted. REMANDED Entitlement to service connection for an acquired psychiatric disability claimed as PTSD for substitution purposes is remanded. Entitlement to service connection for vision disability for substitution purposes is remanded. Entitlement to service connection for HTN for substitution purposes is remanded. FINDINGS OF FACT 1. Service connection for DM, vision disability, and HTN was denied in a June 2005 rating decision that was not appealed. 2. Evidence received since the June 2005 decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claims for service connection for substitution purposes. 3. The Veteran served at the Nakhon Phanom, Korat, and Udorn Royal Thai Air Force Bases in Thailand during the Vietnam War, and his duties placed him in and around the perimeter of the base, meaning that he is presumed to have been exposed to herbicide agents during service. 4. The Veteran had DM as a result of his presumed exposure to herbicide agents. CONCLUSIONS OF LAW 1. As new and material evidence has been received since the issuance of the aforementioned final decision, the criteria for reopening the claim for service connection for DM, vision disability, and HTN for substitution purposes are met. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). 2. The criteria for service connection for DM for substitution purposes have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1966 to November 1988. The Veteran died in June 2015. The appellant is the Veteran’s surviving spouse. In September 2015 the appellant requested to be substituted as the claimant in the Veteran’s claims pending at the time of his death. This request for substitution was granted by the RO in February 2018 correspondence. Therefore, 38 U.S.C. § 5121A and implementing regulation 38 C.F.R. § 3.1010 are applicable, and the appellant’s claim is not one for accrued benefits, but remains the Veteran’s original claim, into which she is substituted. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. Jurisdiction was transferred to the RO in St. Paul, Minnesota. In his December 2014 formal appeal, the Veteran requested a travel Board hearing. Subsequently, a hearing was scheduled for his surviving spouse in November 2018. However, the appellant failed to appear as scheduled. As the appellant was properly notified of the time, date, and location of the scheduled hearing and failed to appear, the hearing request is deemed withdrawn. The Board notes that the Veteran filed his initial service connection claim for PTSD. However, in Clemons v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant’s description of the claim; symptoms described; and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In light of the Court’s decision in Clemons, the Board has re-characterized the pertinent issue on appeal as entitlement to service connection for an acquired psychiatric disorder claimed as PTSD. To this point, the Veteran was afforded a VA-contracted examination in June 2011 in which the examiner diagnosed general anxiety disorder and specific phobic disorder. Therefore, expanding this issue will provide the most potentially favorable review of the claim in keeping with the Court’s holding in Clemons. Claim to Reopen Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Given the previous unappealed denial of the claims on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 (West 2014) to address the question of whether new and material evidence has been received to reopen the claim for service connection. This matter goes to the Board’s jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). Historically, service connection for DM, vision disability, and HTN was denied in a June 2005 rating decision that was not appealed. Service connection was denied based on a determination that there was no evidence that the Veteran served in Vietnam and that the disabilities were not related to service. The evidence received in pertinent part since this June 2005 decision includes the Veteran’s detailed and numerous correspondence and associated articles in which he attested to being exposed to Agent Orange in relation to his service in Thailand, service regarding Operation Ranch Hand and being exposed to or working on C-123 aircrafts. Because such detailed statements and associated article were not present at the time of the prior final denial, assuming their credibility for these purposes (Justus, supra.) this evidence is sufficient to reopen the previously denied claims. The foregoing evidence is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claims. Therefore, this evidence is new and material, and reopening of the claims for service connection is in order. Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). In general, service connection requires (1) 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 current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, including diabetes mellitus, type II, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116 ; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113 ; 38 C.F.R. §§ 3.307, 3.309. The Veteran, and subsequently the appellant, argued that service connection is warranted for DM as a result of being exposed to Agent Orange associated with his service in Thailand, service regarding Operation Ranch Hand and being exposed to or working on C-123 aircrafts. The Veteran’s DD Form 214 shows that he had eight years, eight months, and 26 days of foreign service. The Veteran’s service personnel file shows that he served in Nakhon Phanom Royal Thai Air Force Base (RTAFB) in February 1968 to February 1969; Korat RTAFB from June 1970 to March 1971; Nakhon Phanom RTAFB from March 1971 to March 1972; and had service in Udorn RTAFB in March 1972. The Veteran specifically noted in December 2010, February 2011, and May 2005 correspondence the CHECO report in relation to his claimed exposure to Agent Orange while in Thailand, stating that he was stationed at Nakhon Phanom RTAFB from 1971 to 1972 working on aircrafts that were used to spray herbicides. He also stated that he was stationed at Udorn RTAFB, noting that herbicides were sprayed near the base perimeter. The Veteran also stated that his PTSD was related to the fear of military hostile action. In a March 2011 report of general information, the Veteran specifically stated that he walked along the perimeter of the base in Thailand; the flight line was next to the base fence perimeter where he believed he was exposed to herbicides. VA now recognizes that tactical or tactical-like herbicides were used on the fenced-in perimeters of military bases in Thailand. See Veterans Benefits Administration (VBA) C&P Service Bulletin (May 2010). Thus, VA has determined that exposure to herbicides will be conceded for veterans whose duties placed them at or near the perimeters of certain Thailand military bases, including Nakhon Phanom, Korat, and Udorn RTAFB, during the Vietnam era (February 28, 1961, to May 7, 1975), allowing for presumptive service connection of the diseases associated with herbicide exposure. See VA Adjudication Procedures Manual (M21-1) part IV, subpt. ii, ch. 1, sec. H.5.a (change date: November 12, 2015). VA based this determination of evidence contained in a declassified Vietnam era Department of Defense document titled “Project CHECO Southeast Asia Report: Base Defense in Thailand.” Specifically, the M21-1 provides that if a veteran served with the U.S. Air Force at a specified RTAFB as an Air Force security policeman, security patrol dog handler, member of the security police squadron, or otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, herbicide exposure is to be conceded on a direct/fact-founds basis. See M21-1, part IV, subpt. ii, ch. 1, sec. H.5.b. The Veteran’s service personnel record shows performance reports during his service in Thailand that reflect that his duties included being a crew chief, responsible for inspections, unscheduled maintenance, ground safety programs; aircraft maintenance, responsible for all ground handling, servicing, inspecting, and trouble-shooting; reciprocating aircraft mechanic, responsible for servicing operations and recovering and installing drag chutes; aircraft maintenance specialist, responsible for operating various types of ground-powered equipment. The Board finds that the evidence is therefore at least evenly balanced as to whether the Veteran worked near the perimeter of the Nakhon Phanom RTAFB and Udorn RTAFB in Thailand during the Vietnam era, and the reasonable doubt created by this relative equipoise must be resolved in the Veteran’s favor. 38 U.S.C.§ 5107 (b); 38 C.F.R. § 3.102. As VA’s Adjudication Manual provides that if a veteran who did not have one of the required military occupational specialty served otherwise near the air base perimeter as shown by evidence of daily work duties or other credible evidence, herbicide exposure is to be conceded on a direct/fact-founds basis, the Board finds that the Veteran was exposed to herbicides. Furthermore, the Veteran was shown to have diabetes mellitus type 2, for which presumptive service connection is warranted for veterans presumed to have been exposed to Agent Orange. The Board therefore finds that, affording the Veteran and the appellant the benefit of all doubt, that service connection for diabetes mellitus, type 2, is warranted for substitution purposes. REASONS FOR REMAND The Board is of the opinion that additional development is required before the claims on appeal are decided. In regards to the claim for an acquired psychiatric disability, the Veteran was afforded a VA-contracted examination in June 2011 in which the examiner did not diagnose PTSD. The examiner diagnosed general anxiety disorder and specific phobic disorder. The examiner stated that the Veteran’s exposure to trauma was difficult to elicit, and he had no care in the service or since then for emotional disorder. The examiner stated that these conditions were not related to hostile military activity. The Board notes that the Veteran’s service treatment records show that in a September 1988 self-report of medical history he noted that he had depression or excessive worry. Moreover, subsequent to the June 2011 VA-contracted examination, the RO conceded the Veteran’s reported stressor of fearing for his life during the Vietnam War in a December 2011 administrative decision. The June 2011 examiner did not address the September 1988 in-service report nor was he able to address the subsequently conceded stressor. That is, the Veteran fearing for his life during the Vietnam War was not addressed during the examination. As such, the Board finds that an addendum opinion is warranted on remand. Finally, VA and private treatment records show diagnoses of HTN and glaucoma. The Veteran was not afforded VA examination for these disabilities. As the Board has conceded Agent Orange exposure, remand is warranted to obtain an opinion regarding the etiology of these claimed disabilities. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records; and, with appropriate authorization from the appellant, any additional outstanding private treatment records identified by her as pertinent. 2. After the above development is completed, provide access to the electronic claims file to appropriate examiner(s) for opinions regarding the Veteran’s HTN and vision disabilities to include glaucoma. The electronic claims files, to include a copy of this remand, must be made available to and be reviewed by the examiner(s). The examiner(s) should address the following: Opine whether it is at least as likely as not (50 percent probability or greater) that any HTN and vision disabilities to include glaucoma diagnosed during the pendency of this appeal had its onset in service or was otherwise etiologically related to service, to include the conceded Agent Orange exposure. A full and complete rationale for all opinions expressed must be provided. 3. Provide access to the electronic claims file to an appropriate examiner for an opinion regarding the Veteran’s acquired psychiatric disability claimed as PTSD. The electronic claims files, to include a copy of this remand, must be made available to and be reviewed by the examiner. The examiner should address the following: a) Indicated whether the Veteran had a diagnosis of PTSD during the pendency of the claim. b) If PTSD was diagnosed, the examiner should specifically determine whether it is at least as likely as not (a 50 percent or greater possibility) that the Veteran’s PTSD was related to his military service. If a diagnosis of PTSD is deemed appropriate, the examiner must explain how the diagnostic criteria are met, to include identification of the specific stressor(s) underlying the diagnosis, and comment upon the link between the prior symptomatology and the stressor(s). The examiner must state whether the claimed stressor(s) is adequate to support a diagnosis of PTSD. c) The examiner should opine whether it is at least as likely as not (a 50 percent or greater possibility) that any acquired psychiatric disability diagnosed during the pendency of this appeal to include general anxiety disorder and specific phobic disorder had their onset in service or are otherwise etiologically related to service. The examiner is asked to address the September 1988 self-report of medical history noting depression or excessive worry; and the conceded stressor of the Veteran fearing for his life during the Vietnam War. A full and complete rationale for all opinions expressed must be provided. 4. Upon completion of the opinions ordered above, review the reports to ensure that they provide all information required. Any inadequacies should be addressed prior to recertification to the Board. 5. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal. If any benefit sought on appeal remains denied, furnish the appellant with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.M.K., 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.