Citation Nr: 21001807 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 16-59 879 DATE: January 11, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for diabetes mellitus is reopened and to that extent only, the appeal is granted. REMANDED Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for polyneuropathy is remanded. FINDING OF FACT 1. The October 2009 rating decision that denied service connection for diabetes mellitus is final. 2. The evidence received since the October 2009 rating decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for diabetes mellitus. CONCLUSION OF LAW 1. The October 2009 rating decision that denied service connection for diabetes mellitus is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 2. New and material evidence has been received to reopen a claim of entitlement to service connection for a diabetes mellitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1967 to August 1971. This matter comes to the Board of Veteran's Appeals (Board) on appeal from a November 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In September 2020, the Veteran testified during a video conference Board hearing before the undersigned Veterans Law Judge and a transcript of that hearing is of record. 1. New and material evidence having been received, the claim of entitlement to service connection for diabetes mellitus is reopened. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. VA rating decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as evidence not previously submitted to agency decision-makers. 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). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided on the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA’s statutory duty to assist the appellant in the development of his claim has been fulfilled. 38 U.S.C. § 5108. The claim to reopen does not require the submission of new and material evidence as to each previously unproven element of a claim for that claim to be reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether the 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 VA’s duty to assist or through consideration of an alternative theory of entitlement. The Board has thoroughly reviewed all the evidence in the claims file. The Board has an obligation to provide reasons and bases supporting a decision. However, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000) (Board must address its reasons for rejecting evidence favorable to the Veteran). The Department of Veterans Affairs (VA) Regional Office (RO) considered and denied a claim for service connection for diabetes mellitus in an October 2009 rating decision. At that time, the evidence of record included the Veteran’s application for compensation, treatment records, service medical records, and a response from the Joint Service Records Center. The October 2009 rating decision denied service connection for diabetes mellitus because the evidence of record did not show the Veteran served in-country in Vietnam, as he alleged. The Veteran was notified of the October 2009 rating decision and his appellate rights. The Veteran submitted a timely notice of disagreement. In January 2013, the Veteran was issued a statement of the case. However, the Veteran did not submit a timely substantive appeal to the Board following the statement of the case. As a result, the October 2009 rating decision is now final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 3.160(d), 20.200, 20.201, 20.302, 20.1103. New precedent establishes that a Veteran served in the Republic of Vietnam if the Veteran's only service was in the territorial sea of that country, instead of having set foot on land or navigated the inland waterways. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). The Veteran has since testified to and asserted that he was exposed to herbicide agents while serving in the territorial water of Vietnam aboard the USS Midway. The Board notes that the evidence received by VA in August 2015 shows that the Veteran served aboard the USS Midway during a Western Pacific deployment from April 1971 to November 1971. As the Veteran’s assertions are presumed to be credible for the limited purpose of attempting to reopen a previously denied claim, this evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Accordingly, the additional evidence is also material. As new and material evidence has been received, the claim for service connection for diabetes mellitus is reopened. REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus is remanded. The asserts that current diabetes mellitus is the result of herbicide agent exposure while serving in the territorial waters of the Republic of Vietnam while aboard the USS Midway. The Veteran’s medical records confirm a current diabetes mellitus diagnosis. The Veteran's service personnel records show that the Veteran’s fighter squadron was deployed aboard the USS Midway during a Western Pacific deployment from April 1971 to November 1971. Previously, VA presumed that a Veteran who served in Vietnam during the Vietnam era from January 9, 1962, to May 7, 1975, was exposed to herbicide agents if the Veteran served on land within the Republic of Vietnam or in the inland waterways of Vietnam. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). There is no regulatory requirement as to how long the veteran was in Vietnam; even a few hours of service in country is sufficient to establish the presumption of exposure. 38 C.F.R. § 3.307(a)(6)(iii). Service in Vietnam included service aboard a ship that: (1) served on the inland waterways of Vietnam; (2) went ashore while a ship was operating in Vietnam's close coastal waters; or (3) docked in Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). Exposure to herbicide agents will be presumed to be the cause of certain enumerated diseases, including ischemic heart disease; diabetes mellitus Type II; and early onset peripheral neuropathy. 38 C.F.R. § 3.309 (e). New precedent establishes that a Veteran served in the Republic of Vietnam if the Veteran's only service was in the territorial sea of that country, instead of having set foot on land or navigated the inland waterways. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). Offshore service qualifying as service in the Republic of Vietnam is now defined as a geographical area "not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting" eleven points of latitude and longitude listed in a table. Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. 116-23, to be codified at 38 U.S.C. § 1116A(c). 38 U.S.C. § 1116A(d). The service records document that the USS Midway conducted special operations on Yankee Station in the Gulf of Tonkin from May 18 to June 9, June 30 to July 20, August 1 to August 16, and September 27 to October 10 during 1971. VA's internal procedures have established a process for adjudicating eligible claims, to include this appeal, to determine whether that service qualifies as service in the Republic of Vietnam. The Board must remand for adjudication of the claim for presumptive service connection of diabetes mellitus, to include the possibility of herbicide agent exposure while stationed aboard a ship in Vietnam territorial waters. Additional development is required to determine if the USS Midway was within Vietnam territorial waters during the time the Veteran was aboard that ship. 2. Entitlement to service connection for polyneuropathy is remanded. The asserts that current peripheral neuropathy is the result of herbicide agent exposure while serving in the territorial waters of the Republic of Vietnam while aboard the USS Midway. In the alternative, the Veteran asserts that his current peripheral neuropathy is secondary to diabetes mellitus. The medical records confirm current diabetes mellitus and diabetic neuropathy diagnoses. Because a decision on the remanded issue of entitlement to service connection for diabetes mellitus could significantly impact a decision on the issue of entitlement service connection for polyneuropathy, the Board finds that the issues are inextricably intertwined. Since that claim is being remanded, the Board finds that it would be potentially prejudicial to the Veteran for the Board to consider that derivative claim prior to the determination of the other claim. Therefore, the adjudication of the polyneuropathy claim must be deferred pending resolution of the diabetes mellitus claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Request the Joint Services Records Research Center (JSRRC) first, then, if necessary, the Defense Personnel Records Information Retrieval System (DPRIS) or another appropriate Federal department, make a determination as to whether the USS Midway was positioned 12 nautical miles or fewer from the Republic of South Vietnam land mass during the time the Veteran served aboard that ship. If multiple requests are required to determine the locations of the ship during that entire period, make multiple requests. 2. If any requested Federal records cannot be obtained, document in a memorandum of unavailability to the file the attempts that were made to obtain them and explain why additional attempts to obtain the records would be futile. Provide to the Veteran and representative a written notification of the specific records that could not be obtained, explaining the efforts VA has made to obtain this evidence, and describing any further action VA will take to develop the claim. The Veteran and representative should be allowed an opportunity to respond. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mondesir, Eric 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.