Citation Nr: 20021586 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 18-22 842 DATE: March 26, 2020 ORDER The application to reopen the previously denied claim of entitlement to service connection for diabetes mellitus, type II, is granted. The application to reopen the previously denied claim of entitlement to service connection for a heart condition is granted. Service connection for diabetes mellitus, type II, is granted. Service connection for coronary artery disease is granted. REMANDED Entitlement to service connection for bladder cancer is remanded. THE VETERAN’S CONTENTIONS The Veteran contends that his diabetes mellitus, type II; heart condition; and bladder cancer are associated with Agent Orange exposure while stationed at the Royal Thai Air Force Base, U-Tapao, in Thailand during his service. See April 2018 VA Form 9; August 2016 notice of disagreement (NOD). The Veteran asserts that as an Air Force aircraft mechanic, he was constantly exposed to the perimeter and to the aircraft that was used for spraying Agent Orange when it flew from Thailand into Cambodia and Vietnam. He stated that he crawled on, around, and over these aircraft in order to properly do his job in maintaining these aircrafts. He testified that he was in Thailand for approximately 45 days, and that during that time, he slept in a hooch approximately 20 yards from the fence line and went into an area that was 10 to 15 feet from the fence line. He contends that he worked within 30 yards from the perimeter, and that he worked 24 hours in 48 hours, and while he worked in an open environment. See November 2019 hearing transcript, pp. 2-8. He also noted that he traveled on the perimeter to go to the beach and along a road that had been sprayed with Agent Orange to go downtown. Id., p. 12. He testified that the doctors have told him that his diabetes mellitus, type II; heart condition; and bladder cancer were caused by exposure to Agent Orange. Id., pp. 9-10, 13. He contends that all three of these conditions began when he was in his 40s and he has been treated for these conditions since that time; he was 75 years old at the time of the Board hearing. He contends that he was treated for bladder cancer with surgery; and that he had a heart attack in 1997 and currently has six to seven stents. Id., pp. 8-9. FINDINGS OF FACT 1. A March 2009 rating decision denied the Veteran’s claims for service connection for diabetes mellitus, type II, and a heart condition. The Veteran did not appeal or submit new and material evidence within one year and, as such, it became final. 2. Evidence presented since the March 2009 rating decision relates to unestablished facts necessary to substantiate the Veteran’s claims of entitlement to service connection for diabetes mellitus, type II, and a heart condition. 3. The Veteran has a current diagnosis of diabetes mellitus, type II. 4. The Veteran has a current diagnosis of coronary artery disease. 5. The Veteran served at a base in Thailand and his duties brought him near the perimeter where Agent Orange was used. CONCLUSIONS OF LAW 1. The March 2009 rating decision, which denied the Veteran’s claims for entitlement to service connection for diabetes mellitus, type II, and a heart condition is final; new and material evidence has been received to reopen the claims. 38 U.S.C. §§ 5108; 7105; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for diabetes mellitus, type II, are met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for coronary artery disease are met. 38 U.S.C. §§ 1110, 1131, 1154, 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 Air Force from October 1963 to September 1967. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In December 2019 and February 2020, subsequent to the most recent March 2018 statement of the case (SOC), the Veteran submitted a private treatment record. In this decision, the Board reopens the previously denied claims of entitlement to service connection for diabetes mellitus, type II, and a heart condition and awards service connection for these conditions. In regard to the Veteran’s claims for entitlement to service connection for diabetes mellitus, type II, and a heart condition, for which the Board grants the benefits sought in full, a remand for RO consideration of the post-SOC medical evidence is not warranted. See 38 C.F.R. § 20.1304(c). New and Material Evidence Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decision makers. 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). The threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). For the purposes of evaluating a request to reopen a previously denied claim, the credibility of new evidence will be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran seeks to reopen his claims for service connection for diabetes mellitus, type II, and a heart condition. The claims were denied in a March 2009 rating decision. Entitlement to service connection for diabetes mellitus, type II, was denied based on the finding that the Veteran was not exposed to herbicides in service. Entitlement to service connection for a heart condition was denied based on the finding that the condition neither occurred in nor was caused by his service. The Veteran did not appeal the March 2009 rating decision, and new and material evidence was not received within the appellate period; thus, the rating decision became final. 38 C.F.R. §§ 20.200, 20.202. Since March 2009, new evidence has been added to the claims file which is material to the Veteran’s claims for service connection for diabetes mellitus, type II, and a heart condition. The new and material evidence includes the Veteran’s testimony regarding his duties in Thailand at his November 2019 Board hearing, a January 2016 ischemic heart disease disability benefits questionnaire (DBQ), a January 2016 diabetes mellitus DBQ, and an October 2016 private medical opinion. Accordingly, the Veteran’s claims for service connection for diabetes mellitus, type II, and a heart condition are reopened. 38 U.S.C. § 5108; 38 C.F.R. § § 3.156(a); see also Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). If a Veteran was exposed to certain herbicide agents during service, then certain listed diseases, including diabetes mellitus, type II, and coronary artery disease, are presumptively service-connected absent affirmative evidence to the contrary. 38 U.S.C. §§ 1113, 1116(a)(1), (a)(2); 38 C.F.R. §§ 3.307(d), 3.309(e). The foregoing statutory and regulatory provisions do not establish a presumption of exposure to herbicide agents based on service in Thailand. However, per information from the Department of Defense, VA recognizes that herbicides, including Agent Orange, were used at certain times and places at some military bases in Thailand during the Vietnam Era. As a result, special consideration of herbicide exposure on a factual basis for veterans whose duties placed them on or near the perimeters of Thai military bases during the Vietnam era is required. As noted above, the Veteran contends that he was exposed to Agent Orange while stationed at Royal Thai Air Force Base at U-Tapao, in Thailand. He testified that as an aircraft mechanic, he was constantly exposed to the perimeter and to the aircraft that was used for spraying Agent Orange. See November 2019 hearing transcript; p.3. The evidence shows that the Veteran has been diagnosed with diabetes mellitus, type II, and coronary artery disease. See January 2016 ischemic heart disease DBQ; January 2016 diabetes mellitus DBQ; October 2016 private medical opinion. The military personnel records show that the Veteran served in Thailand in 1966. The Board finds that the Veteran is competent to report his geographical location in Thailand and that his contentions that his duties placed him near perimeter of the base are credible. Resolving doubt in the Veteran’s favor, the Board finds that his duties brought him to the perimeter of the base in Thailand during his service. 38 C.F.R. § 3.102. Thus, the Veteran’s herbicide exposure is presumed and service connection for diabetes mellitus, type II, and coronary artery disease is warranted. See 38 C.F.R. §§ 3.307(a)(6) and 3.309(e). REASONS FOR REMAND The most recent adjudication of the Veteran’s claim for service connection for bladder cancer occurred in a March 2018 SOC. The Veteran submitted a timely substantive appeal in April 2018 and the case was certified to the Board in July 2018. In October 2018, the Veteran was informed that his case had been transferred to the Board. A December 2019 private medical record was associated with the Veteran’s claims file subsequent to the transferring of the Veteran’s appeal to the Board. The Board sent the Veteran a waiver solicitation letter in January 2020 to ascertain whether it could review this newly submitted evidence. No response was received. Any pertinent evidence submitted by the Veteran or his representative after records have been transferred to the Board must be referred to the AOJ for consideration in the first instance, unless this procedural right is waived. See 38 C.F.R. § 20.1305. As such, the Board must remand the Veteran’s claim for service connection for bladder cancer for consideration by the AOJ. The matters are REMANDED for the following action: After completing any additional development deemed necessary, readjudicate the Veteran’s claim for entitlement to service connection for bladder cancer with consideration of the December 2019 private treatment record and any other new evidence submitted. If the benefit sought remains denied, provide an SSOC to the Veteran and his representative and afford them an opportunity to respond. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Samuelson, 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.