Citation Nr: 21000612 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-58 961 DATE: January 5, 2021 ORDER New and material evidence having been received, the application to reopen the claim for service connection for diabetes mellitus, type II, (diabetes) is granted. New and material evidence having been received, the application to reopen the claim for service connection for obstructive sleep apnea (OSA) is granted. Service connection for diabetes is granted. Service connection for chronic lymphocytic leukemia (CLL) is granted. REMANDED Entitlement to service connection for OSA, to include as due to exposure to herbicides, is remanded. FINDINGS OF FACT 1. In a final decision issued in February 2014, the Agency of Original Jurisdiction (AOJ) confirmed the prior denials of service connection for diabetes and OSA. 2. Evidence associated with the record since the final February 2014 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claims of entitlement to service connection for diabetes and OSA. 3. Resolving all doubt in favor of the Veteran, the circumstances of his service at Udorn Royal Thai Air Force Base (RTAFB) in Thailand from September 1967 to September 1968 brought him in close proximity to the base perimeter on a regular basis, thereby exposing him to herbicides. 4. The Veteran’s currently diagnosed diabetes is presumed to be related to his acknowledged in-service exposure to herbicides. 5. The Veteran’s currently diagnosed CLL is presumed to be related to his acknowledged in-service exposure to herbicides. CONCLUSIONS OF LAW 1. The February 2014 rating decision that confirmed the prior denials of service connection for diabetes and OSA is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2013). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for diabetes. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. New and material evidence has been received to reopen a claim of entitlement to service connection for OSA. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. The criteria for service connection for diabetes have been met. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for CLL have been met. 38 U.S.C. §§ 1110, 1116, 1131, 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 from September 1964 to January 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2015 and February 2016 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, the Veteran waived AOJ consideration of the evidence associated with the record since the issuance of the September 2017 and October 2017 statements of the case. 38 C.F.R. § 20.1305(c). Furthermore, while updated VA treatment records were subsequently associated with the record, such are irrelevant to the issues on appeal or contain findings that are duplicative of those previously of record. Id. Thus, no prejudice results to the Veteran in the Board proceeding with a decision at the present time. 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for diabetes. 2. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for OSA. By way of background, VA received the Veteran’s original claim for service connection for diabetes in April 2001. In a March 2002 rating decision, the AOJ considered his service treatment records (STRs), service personnel records (SPRs), post-service private and VA treatment records, a July 2001 VA examination, and the Veteran’s lay statements and found that his STRs were negative for any complaints, treatment, or diagnosis of such disorder, his reported exposure to herbicide agents coincident with service in the Republic of Vietnam had not been verified, and the probative medical evidence did not reflect a diagnosis of diabetes. Therefore, the AOJ denied service connection for diabetes. In April 2007, the Veteran filed an application to reopen his claim for service connection for diabetes; however, such was denied in a May 2009 rating decision. Thereafter, VA received another application to reopen such previously denied claim as well as an original claim for service connection for OSA in February 2011. In a March 2013 rating decision, the AOJ considered the previously mentioned evidence as well as updated treatment records, and found that, as new and material evidence had not been received, the previously denied claim for service connection for diabetes was not reopened. The AOJ further determined that, as the Veteran’s STRs were negative for any complaints, treatment, or diagnosis of OSA, service connection for such disorder was not warranted. In April 2013, the Veteran submitted a statement indicating that he disagreed with the March 2013 rating decision on the basis that the AOJ failed to obtain relevant records; however, he did not indicate disagreement with the denial of the application to reopen the previously denied claim for service connection for diabetes or the denial of service connection for OSA. 38 C.F.R. § 20.201 (2012). Thus, after conducting additional development, the AOJ reconsidered the Veteran’s claims in a February 2014 rating decision. At such time, the AOJ considered the entirety of the evidence of record, to include updated VA treatment records, and found that, while the evidence demonstrated a current diagnoses of diabetes and OSA, his STRs were negative for such conditions and the evidence failed to show that he was exposed to herbicides during his military service. Therefore, the AOJ confirmed the prior denials of service connection for such disorders. In February 2014, the Veteran was advised of the decision and his appellate rights, but he did not enter a notice of disagreement with such decision. Additionally, no new and material evidence was physically or constructively associated with the record within one year of the issuance of such decision and, while the Veteran submitted duplicative copies of STRs and SPRs, no relevant service department records have since been received. Therefore, the February 2014 decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2013). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). 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 means existing evidence not previously submitted to agency decisionmakers. 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. 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 and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In February 2015, the Veteran filed his most recent application to reopen his claims of entitlement to service connection for diabetes and OSA, and alleged that such are related to in-service exposure to herbicide agents. As previously discussed, such claims have been previously denied on the basis that the evidence failed to show in-service exposure to herbicides and there was no other qualifying in-service disease, injury, or event. However, in connection with his most recent claim, the Veteran has advanced the theory that he was exposure to herbicides coincident with his service at Udorn RTAFB in Thailand from September 1967 to September 1968, and provided additional testimony and evidence indicate that he came in close proximity to the base perimeter on a regular basis, thereby exposing him to herbicides. He also offered testimony indicating that he experienced symptoms of OSA in service. As such testimony is presumed credible for the purposes of reopening the claims, the Board finds that the evidence associated with the record since the final February 2014 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claims of entitlement to service connection for diabetes and OSA. Therefore, as new and material evidence has been received, the Veteran’s claims for service connection for diabetes and OSA are reopened. 3. Entitlement to service connection for diabetes, claimed as due to exposure to herbicides. 4. Entitlement to service connection for leukemia, claimed as due to exposure to herbicides. As an initial matter, the Board notes that the Veteran has a current diagnosis of diabetes and CLL as demonstrated by VA treatment records, which have manifested to a compensable degree. 38 C.F.R. §§ 4.119, 4.117, Diagnostic Codes 7913, 7703. In regard to the latter disorder, the Board acknowledges that an April 2016 statement from a private physician indicates a diagnosis of acute lymphocytic leukemia (ALL) rather than CLL; however, such appears to be in error as the physician indicated that such was based on a review of the Veteran’s VA treatment records, which clearly document a diagnosis of CLL rather than ALL. The Veteran does not allege, nor does the record reflect, that his currently diagnosed diabetes or CLL are directly or presumptively related to service based on the manifestation of a chronic disease during service, or within one year of service discharge, to include based on a continuity of symptomatology. Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008) (claims which have no support in the record need not be considered by the Board as the Board is not obligated to consider “all possible” substantive theories of recovery. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory). Rather, he claims that service connection is warranted as presumptively related to in-service exposure to herbicides coincident with his service in Udorn RTAFB as his duties brought him in close proximity to the base perimeter on a regular basis. In this regard, the law provides a presumption of service connection for certain diseases associated with exposure to herbicide agents that become manifest to a compensable degree within a specified time period, even if there is no record of evidence of such disease during the period of service. As relevant to the instant case, diabetes mellitus, type II, and chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and CLL) are acknowledged to be presumptively related to such exposure, and shall have become manifest to a degree of 10 percent or more at any time after service. 38 U.S.C. §§ 1110, 1116(a)(2), 1131; 38 C.F.R. §§ 3.303, 3.307(a)(6)(ii), 3.309(e). While there is no presumption of exposure to herbicide agents coincident with an individual’s service in Thailand, in a May 2010 bulletin, VA noted that there was significant use of herbicides on the fenced in perimeters of military bases in Thailand, which was intended to eliminate vegetation and ground cover for base security purposes, as documented in the declassified Vietnam era Department of Defense (DOD) document titled “Project CHECO Southeast Asia Report: Based Defense in Thailand.” Thus, VA has determined that a special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of Thailand military bases during the Vietnam era, i.e., February 28, 1961, to May 7, 1975. In this regard, the majority of troops in Thailand during the Vietnam Era were stationed at the RTAFBs of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served in the Air Force on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis In this regard, SPRs reveal that the Veteran served in the Air Force and was assigned to the 38th and then 37th Aerospace Rescue and Recovery Squadrons at Udorn RTAFB from September 1967 to September 1968 with a military occupational specialty (MOS) of Jet Engine Specialist/Mechanic. While stationed at Udorn RTAFB, the Veteran describes being housed in open-air barracks, working in buildings located near the perimeter of the base, and working on aircraft at and near the runway located on the perimeter of the base. Specifically, he reports working frequently on helicopters out in the open area adjacent to the flight line, immediately after the wind from the landing helicopters stirred up dust, debris, and vegetation at the perimeter of the base. VA memoranda indicate that, if a claim was based on servicing or working on aircraft that flew bombing missions over Vietnam, there was no presumption of “secondary exposure” based on being near or working on aircraft that flew over Vietnam or handling equipment once used in Vietnam. Aerial spraying of tactical herbicides over Vietnam did not occur everywhere and it was inaccurate to think that herbicides covered every aircraft and equipment associated with Vietnam. If the claim was based on general herbicide use within a military base, e.g., small scale brush or wed clearing activity along a flight line or around living quarters, there were no records of such activity involving tactical herbicides, only commercial herbicides. Such further indicates that tactical herbicides, e.g., Agent Orange, were used and stored in Vietnam, not Thailand. However, there are records indicating that commercial herbicides were frequently used for vegetation control within the perimeters of air bases during the Vietnam Era. The Thailand CHECO report did not recognize use of tactical herbicides in Thailand, but there was sporadic use of non-tactical (commercial) herbicides within fenced perimeters. Thus, if a veteran’s MOS or unit was one that regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides and herbicides. Based upon a review of the evidence and resolving all doubt in favor of the Veteran, the Board finds that the circumstances of his service at Udorn RTAFB Thailand from September 1967 to September 1968 brought him in close proximity to the base perimeter on a regular basis, thereby exposing him to herbicide agents. In this regard, at the October 2020 Board hearing, the Veteran reported routinely working along the flight line, which was about 50 yards from the perimeter of Udorn RTAFB. He further reported being transferred to and from his work location in open-air buses, which drove along the perimeter multiple times per day. The Veteran also described fixing a helicopter that was down in an area outside the base where there had been quite a bit of herbicides used to control vegetation. Finally, the Veteran has also described distributing daily mail to his squadron for a month at Udorn RTAFB, which required him to drive the perimeter road to and from the main post office three or four times per day to get the squadron mail. In support of such testimony, the Veteran submitted maps and photographs showing the location of the flight line, roads, and barracks at Udorn RTAFB, which confirm the proximity of the flight line and bus route to the perimeter of the base. Thus, in light of the Veteran’s testimony and supporting documentation, the Board resolves all doubt in his favor and finds that his duties at Udorn RTAFB brought him in close proximity to the base perimeter on a regular basis. Thus, his diabetes and CLL are presumed to be related to his acknowledged in-service exposure to herbicides. Consequently, service connection for such disorders is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 5. Entitlement to service connection for OSA, to include as due to exposure to herbicides. The Veteran contends that his currently diagnosed OSA is related to his military service, to include his acknowledged exposure to herbicides coincident with his service at Udorn RTAFB. Furthermore, at his October 2020 Board hearing, the Veteran testified to snoring and struggling with interrupted sleep and excessive daytime sleepiness while stationed at Udorn RTAFB, which has continued to the present time. Consequently, in light of the current diagnosis of OSA, the Veteran’s in-service exposure to herbicides, and his report of relevant symptomatology during and since service, the Board finds that a remand is necessary in order to obtain an opinion addressing the etiology of such disorder. The matter is REMANDED for the following action: Forward the record, to include a copy of this remand, to an appropriate VA clinician to obtain an opinion addressing the etiology of the Veteran’s OSA. The need for an examination of the Veteran is left to the discretion of the clinician selected to write the opinion. Following a review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s OSA had its onset in, or is otherwise related to, his military service, to include his acknowledged in-service exposure to herbicides and/or his reports of snoring, struggling with interrupted sleep, and excessive daytime sleepiness that began in service. The examiner is advised that the sole basis for a negative nexus opinion may not be the fact that the Veteran’s service treatment records are silent as to any complaints, treatment, or diagnosis of OSA. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Breckenridge, 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.