Citation Nr: 20021472 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 18-37 612 DATE: March 25, 2020 ORDER The previously denied claim for service connection for diabetes mellitus, type II, is reopened and granted. FINDINGS OF FACT 1. By a decision dated in November 2014, the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana denied service connection for diabetes; the Veteran was advised of the decision and of his appellate rights. 2. The Veteran did not initiate an appeal of the RO’s November 2014 decision during the one-year period following the mailing of notice of that decision; nor was any new evidence received within a year. 3. New evidence received since the time of the RO’s November 2014 decision, when considered with the evidence previously of record, relates to an unestablished fact necessary to substantiate the Veteran’s claim for service connection for diabetes and raises a reasonable possibility of substantiating the claim. 4. It is at least as likely as not that the Veteran was exposed to herbicide agents while on active duty. 5. The Veteran’s type II diabetes mellitus is presumptively associated with exposure to herbicide agents. CONCLUSIONS OF LAW 1. The November 2014 rating decision denying service connection for diabetes is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103 (2014). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for diabetes. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. Resolving reasonable doubt in the Veteran’s favor, the criteria for an award of service connection for type II diabetes mellitus have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1966 to March 1968, to include service in Thailand. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision issued by a VARO. During the pendency of the appeal, the RO found that new and material evidence had been received to reopen the Veteran’s claim. See Statement of the Case (SOC) dated in May 2018. However, the Board is required to consider that question independently. See 38 U.S.C. § 7104(b); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). 1. Whether new and material evidence has been received to reopen the previously denied claim for service connection for diabetes. The Veteran’s claim for service connection for diabetes was initially denied in a November 2014 rating decision issued by the VARO in Indianapolis, Indiana. The RO noted that the Veteran’s service treatment records did not contain any complaints, treatment, or diagnosis of diabetes; that there was no evidence of service in Vietnam during the Vietnam era; and that there was no other evidence of exposure to herbicides during military service. The Veteran was advised of the RO’s decision, and of his appellate rights, by a letter dated November 2014. He did not file a notice of disagreement, nor was any new evidence received within a year. As such, the decision became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103 (2014). Accordingly, the claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108 (2012); Jackson, supra. 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. 38 C.F.R. § 3.156(a) (2018). For purposes of determining whether new and material evidence has been received, the credibility of the evidence is to be presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Here, the evidence received since the time of the RO’s November 2014 decision includes the Veteran’s lay statements to the effect that he performed guard duty on a base where he was stationed in Thailand. The evidence also includes May 2018 correspondence from the Defense Personnel Records Information Retrieval System (DPRIS) supporting a finding that the Veteran served at Camp Friendship in Korat, Thailand. The Board concludes that the evidence received since November 2014 is new in that it was not before the RO when the Veteran’s claim was previously denied. It is also material, in that it relates to an unestablished fact necessary to substantiate the claim (i.e., that the Veteran may have had herbicide exposure while performing duties near the perimeter of a base in Thailand), and, presuming its credibility for new and material evidence purposes, raises a reasonable possibility of substantiating the claim. See, e.g., Shade v. Shinseki, 24 Vet. App. 110 (2010). It is, therefore, new and material. The claim for service connection for diabetes is reopened. 2. Service connection for diabetes Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In making all determinations, the Board must fully consider the lay assertions of record. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). As an initial matter, the Veteran’s service treatment records do not reflect that he was diagnosed with diabetes while on active duty or at separation. The first competent evidence of disability appears to be years after his separation from service. The United States Court of Appeals for Veterans Claims (Court) has indicated that normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service, can be probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant’s health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). The Veteran contends that he was exposed to herbicides while he was serving at Camp Friendship in Korat, Thailand. Service records confirm that he was stationed in Thailand from October 1966 to September 1967, and that his unit was located a Camp Friendship. He also contends that he flew to Vietnam en route to Thailand. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, such as type II diabetes mellitus, are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C. § 1116(a); 38 C.F.R. § 3.309(e). Although there is no presumption of herbicide exposure for military service in Thailand, VA has determined that special consideration of herbicide exposure on a factual basis should be extended to Veterans whose duties placed them at or near the perimeters of certain Thailand military bases during the Vietnam era. See Veterans Benefits Administration (VBA) C&P Service Bulletin (May 2010); see also VBA Manual M21-1, Part IV, Subpart ii. Specifically, herbicide exposure may be conceded on a direct/facts-found basis in the case of veterans who served in the U.S. Air Force during the Vietnam era at one of several listed Air Force bases, including Korat, as a 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. In the case of veterans who served at a U.S. Army base in Thailand during the Vietnam era, herbicide exposure may be conceded on a direct/facts-found basis for veterans who served as a member of the military police unit, or with a military police occupational specialty. VA based this determination on evidence contained in a declassified Vietnam-era Department of Defense document entitled “Project CHECO Southeast Asia Report: Base Defense in Thailand.” Here, the Veteran’s service personnel records confirm that he was stationed in Thailand during the Vietnam era. Specifically, he appears to have been stationed there from October 1966 to September 1967. Information from DPRIS indicates that his unit was located at Camp Friendship, Korat, Thailand. Significantly, both the Project CHECO Southeast Asia Report and the Court’s summary thereof in Parseeya-Picchione, 28 Vet. App. 171 (2016), document that Camp Friendship bordered Korat Air Force Base on a section of the perimeter. The Board acknowledges that the Veteran’s service records do not reflect that his military occupational specialty was one of those associated with regular duties along the base perimeter. However, he has stated that his duties placed him along the perimeter when he was stationed there. He is competent to describe the circumstances of his service, and the Board finds his statement on the matter to be credible. See also Parseeya-Picchione, supra (noting evidence submitted by the appellant in that case to the effect that it was common for military aircraft flying to and from airbases in Thailand to land at airbases in Vietnam). In arriving at this conclusion, the Board acknowledges that a May 2018 DPRIS response notes that an August 1966 to October 1966 unit history does not report unit personnel being exposed to Agent Orange or tactical herbicides while performing their daily duty assignments. However, to the extent that they are unfavorable to the Veteran’s claim, those findings appear to be at odds with VA’s determination regarding the potential exposure to herbicide agents while stationed in Thailand during the pertinent period. In view of the foregoing, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for type II diabetes mellitus is warranted on a presumptive basis. The appeal is granted. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Lanton, 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.