Citation Nr: 21000630 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 18-15 650 DATE: January 5, 2021 ORDER New and material evidence has been received to reopen the previously denied claim for service connection for diabetes mellitus, to that extent only the appeal is granted. REMANDED Service connection for diabetes mellitus is remanded. Service connection for hypertension is remanded. FINDINGS OF FACT 1. The claim for service connection for diabetes mellitus was previously denied in a May 2010 rating decision. 2. Since that May 2010 rating decision, evidence has been associated with the claims file that is neither cumulative nor redundant of evidence already of record and raises a reasonable possibility of substantiating the claim of entitlement to service connection for diabetes mellitus. CONCLUSIONS OF LAW 1. The May 2010 rating decision that earlier considered and denied the Veteran’s claim of entitlement to service connection for diabetes mellitus is final and binding based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R.§ 3.104, 3.160, 20.1103. 2. But there is new and material evidence since that decision to reopen this claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New & Material Evidence The local regional office (RO) previously considered and denied the Veteran’s claims of entitlement to service connection for diabetes mellitus in May 2010. He did not appeal that decision or submit new and material evidence within one year of receiving notification of that decision, so it is final and binding on him based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A claim of entitlement to service connection may be reopened, however, if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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). In determining whether evidence is new and material, the credibility of the new evidence is presumed – unless the allegation is beyond the competence of the person making it or inherently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In this case, since the May 2010 rating decision, there has been a change in the law such that it is possible that the Veteran’s service in the Navy during the Vietnam War might allow for presumptive benefits under 38 C.F.R. §§ 3.307(a), 3.309(e). In particular, in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), the higher U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) held that a Veteran does not have to have set foot on the ground or landmass in Vietnam in order to be considered to have “served in Vietnam” and for it, in turn, to be presumed that he was exposed to herbicides. Rather, service within a certain boundary off the coast of Vietnam may suffice. Therefore, this precedent decision relates to an unestablished fact necessary to substantiate the claim and presents a reasonable possibility of substantiating the claim. The claim, therefore, is reopened. REASONS FOR REMAND 1. Service connection for diabetes mellitus is remanded. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 (i.e., Vietnam era), shall be presumed to have been exposed during such service to an herbicide agent – unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.   As already alluded to, in a recent precedent case, Procopio, supra, the Federal Circuit Court held that the phrase ‘service in the Republic of Vietnam’ includes the territorial sea of the Republic of Vietnam and is not limited to the landmass or inland waterways of that nation. Specifically, the Court increased the potential significance of any in-service presence within the 12-nautical mile territorial sea of the Republic of Vietnam during the Vietnam War in cases featuring alleged exposure to tactical herbicide agents. The Board is unable to determine whether the Veteran did versus did not have any presence within the 12-nautical mile territorial sea of Vietnam during his Vietnam War service. Accordingly, the Board must remand the case for further factual development. 2. Service connection for hypertension is remanded. The Veteran contends that his hypertension is either related to his diabetes mellitus or directly related to his service. Given that his claim for service connection for diabetes mellitus is being remanded for further development, and the outcome of that claim may directly impact his claim for service connection for hypertension, these claims are “inextricably intertwined”. Thus, the claim for service connection for hypertension also must be remanded since at least partly derivative of the claim for diabetes mellitus. Accordingly, these claims are REMANDED for the following action: 1. In light of the Federal Circuit Court’s holding in Procopio, determine whether the Veteran’s service during the Vietnam War era allows for presumption of exposure to herbicide agents. Specifically, determine whether his shipboard service on the USS Chevalier during the Vietnam War included presence within the 12-nautical mile territorial sea of the Republic of Vietnam. 2. If the answer to directive 1) is yes, meaning it is concluded the Veteran did serve in the 12-nautical mile territorial sea of the Republic of Vietnam, forward his claims file to a medical examiner (or schedule the Veteran for a VA compensation examination, if needed) to determine the etiology of his hypertension. The examiner should provide an opinion as to: a) Whether it is at least as likely as not the Veteran’s hypertension was caused OR is aggravated by his diabetes mellitus, and/or; b) Whether his hypertension is otherwise directly or presumptively related to his service. In making these determinations, take into account both his report that he experienced headaches in service that he believes are linked to high blood pressure, and consider and comment on the November 2018 National Academy of Science (NAS) study that promoted hypertension from the “limited or suggestive” to “sufficient” category for association with herbicides. See Veterans and Agent Orange: Update 11 (2018). Keith W. Allen Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Erdheim 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.