Citation Nr: 21002476 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 17-11 081 DATE: January 13, 2021 ORDER 1. The previously disallowed claim for service connection for diabetes mellitus type II is reopened. 2. The previously disallowed claim for service connection for heart disease is reopened. REMANDED The claim for service connection for diabetes mellitus type II is remanded. The claim for service connection for heart disease is remanded. FINDINGS OF FACT 1. A November 2013 rating decision denied service connection for diabetes mellitus type II and heart disease. The Veteran was notified of his rights to appeal but failed to appeal or file additional evidence within one year of notification of his decision. 2. The evidence associated with the file subsequent to the November 2013 rating decision is new, material, and raises a reasonable likelihood of substantiating the Veteran’s claim for service connection for diabetes mellitus. 3. The evidence associated with the file subsequent to the November 2013 rating decision is new, material, and raises a reasonable likelihood of substantiating the Veteran’s claim for service connection for heart disease. CONCLUSIONS OF LAW 1. The November 2013 rating decision is final; 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. New and material evidence sufficient to readjudicate the claim for entitlement to service connection for diabetes mellitus type II has been received. 38 U.S.C. § 5108 ; 38 C.F.R. § 3.156. 3. New and material evidence sufficient to readjudicate the claim for entitlement to service connection for heart disease has been received. 38 U.S.C. § 5108 ; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the Navy from April 1968 to March 1970 during the Vietnam War. Whether new and material evidence has been submitted to readjudicate a previously denied claim for service connection for diabetes mellitus type II and heart disease This case is on appeal before the Board of Veterans’ Appeals (Board) from a January 2017 Statement of the Case (SOC) issued by the Department of Veterans Affairs (VA) Regional Office (RO), finding that evidence submitted by the Veteran was not new and material. In March 2020, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. Notwithstanding the prior RO determination regarding reopening, the preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4, (1995), aff’d, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). The VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C. § 5108 ; 38 C.F.R. § 3.156 (a); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 final denial of the claim sought to be re-opened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 510-513 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The evidence of record at the time of the November 2013 rating decision consisted of the Veteran’s Form DD 214, Service Treatment Records and Personnel Records, VA Application for Disability Compensation, Defense Personnel Records Information Retrieval System Request (DPRIS)Vietnam verification requested on August 24, 2013 and Response received August 29, 2013, Department of the Army, U.S. Army and Joint Services Records Research Center (JSRRC) Memorandum For Record, Department of Veterans Affairs Memorandum of Formal Finding of a Lack of Information Required to Corroborate Exposure to Agent Orange in The Republic of Vietnam dated August 29, 2013, Treatment Records, Knoxville CBOC; Sevierville CBOC; and VAMC Mountain Home. At the time of the November 2013 rating decision, the Veteran’s exposure to Agent Orange (AO) during Vietnam service was not corroborated by DPRIS, JSRRC, or his service personnel records. Moreover, details the Veteran himself provided regarding his service in Vietnam or information about possible exposure situations was scarce. As such, the RO denied the Veteran’s claims because the evidence in the claims file at the time failed to show in-service herbicide exposure. After the November 2013 rating decision, on July 1, 2019, the United States Court of Appeals for the Federal Circuit (the Court) held in Porcopio v. Wilkie, 913 F.3d 1371 (2019), that the term “Republic of Vietnam” as used in 38 U.S.C. § 1116 included the twelve-nautical-mile territorial seas of Vietnam. Congress passed and the President signed the Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23, 133 Stat. 966 (2019), which, among other things, added 38 U.S.C. § 1116A to codify the Court’s interpretation of the “Republic of Vietnam” to include the twelve-nautical mile territorial sea. The adjudication of the Veteran’s claim in November 2013 preceded these changes in the law, and the RO did not consider whether the Veteran had foreign sea service during active service within the twelve-nautical mile territorial seas of Vietnam. The Act created new statutory requirements for the adjudications of certain claims based on Veterans’ herbicide agent exposure in the offshore waters of the Republic of Vietnam (Vietnam) during the period from January 9, 1962, to May 7, 1975. It is uncontested that the Veteran served on the USS Hanover during the relevant period. If the Veteran was deployed to within 12 nautical miles offshore of the Republic of Vietnam, the presumption of exposure will apply. Application of the Blue Water Act to the Veteran’s claims is new to the record since the November 2013 rating decision, relates to unsubstantiated facts, and application of the Blue Water Act raises a reasonable possibility of substantiating the claims. Subsequent to the November 2013 rating decision, evidence was added to include additional contentions from the Veteran which he presented during his testimony at the March 2020 hearing. The Veteran testified that his air mechanic duties involved ongoing contact with large numbers of aircraft that were actively flying combat missions over Vietnam constantly as part of a campaign. The Veteran identified that he had skin contact and inhalation exposure to the outside of the returning aircraft as a matter of course constantly, and “climbed under them” to refuel. The Veteran indicated that since the jets he serviced were flying back and forth over the land mass of Vietnam, he could have been exposed to AO by means of his constant contact with the exterior surfaces of these numerous jets. The Veteran testified that he also experienced ongoing daily skin and inhalation contact with jet fuel (identified as JP-5) and other additives and solvents. The Veteran testified that he saw officers putting (unidentified) additives into the jet fuel. In addition, he was required to crawl inside of the jet fuel tanks in order to clean them, so that he was inhaling and touching with his skin the residue in the fuel tanks. The Veteran indicated that this exposure inside the fuel tanks would make a person “feel drunk” and it was his belief that if a person remained in a tank more than fifteen or twenty minutes “it killed you”. Additionally, the Veteran testified that at the end of his tour on the USS Hanover, he was flown off the ship to Da Nang, Vietnam, and later boarded another plane to the Philippines. He believes that his time in Vietnam in that instance was less than twelve hours. The Veteran’s testimony at the March 2020 hearing raises new information since the November 2013 decision. With regard to Agent Orange, (AO) the Veteran identified a new possible route of exposure to AO that he speculates could have occurred when he constantly had contact with the exterior surfaces of numerous jets that may have been exposed to AO while flying repeated and ongoing combat missions over the land mass of Vietnam. In addition, the Veteran testified that he did travel to the land mass of Vietnam and identified a specific location (Da Nang) and a narrow date range (proximate to the dates he left service on board the USS Hanover). The Veteran introduced information with regard to daily exposure to other possible toxins such as PS-5 jet fuel and unknown additives and solvents, to include his intensive exposure crawling into the dirty fuel tanks. The Veteran’s statements at the March 2020 hearing tend to show that the Veteran experienced in-service events that may be related to his current diabetes mellitus type II and heart disease. The Board further notes that the testimony raises new theories of entitlement to service connection. This evidence is “new” because it was not previously submitted and considered by the VA. It is also material because it relates to unestablished facts. For the purpose of the request to reopen, the Board must presume that the newly submitted evidence is credible. See Justus, 3 Vet. App. at 513. Applying that presumption, the Board finds that the evidence submitted since November 2013 is new and material and the previously denied claims for service connection for diabetes mellitus type II and heart disease are reopened. REASONS FOR REMAND Service connection for diabetes mellitus type II and heart disease is remanded. The Veteran seeks service connection for diabetes mellitus type II and heart disease, tracing both conditions to exposure to herbicide (Agent Orange), jet fuel (JP-5), and other fuels and solvents, while serving as an aircraft mechanic on the carrier USS Hanover during the Vietnam War. See March 2020 Board hearing; Veteran’s DD 214. After reviewing the evidence of record, the Board concludes that further development is necessary with regard to the following areas of inquiry: (1) determine whether the Veteran’s active duty service qualifies for the expanded presumption of service connection available under the Blue Water Act. In addition, obtain available evidence with regard to (a) any records or corroborating lay statements that might support the Veteran’s contentions that he was present in Da Nang around the timeframe when he departed from the USS Hamilton; (b) any records, articles, lay statements and/or medical, technical or other literature that might tend to support the Veteran’s contentions with regard to the possible presence of AO on the exterior of the combat jets he serviced; (c) any records, articles, buddy statements and/or medical literature that might tend to support the Veteran’s contentions with regard to his exposure to jet fuel and the possible identity of any of the other additives and solvents. After obtaining that information, if presumptive service connection is not granted, the Board concludes that the Veteran should be afforded VA examinations with regard to his service connection claims for diabetes mellitus type II and heart disease to determine whether his purported exposure during active service is etiologically related to his diabetes mellitus type II and heart disease. The Board cannot make that determination based on its own medical judgment. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board notes that in order for service connection to be granted, the in-service event need not be the sole or primary cause of the disorder but need only be a contributing cause. It is VA’ s duty to assess the current state of medical knowledge on the subject, including the articles submitted by the Veteran. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) (examiner may have duty to conduct research in the medical literature before rendering an inconclusive opinion). The matters are REMANDED for the following action: 1. Contact the Veteran and invite him to provide further information about the following: (a) evidence that might support the Veteran’s contentions that he was present in Da Nang; (b) evidence that might tend to support the Veteran’s contentions with regard to the possible presence of AO on the exterior of the combat jets he serviced; (c) evidence that might tend to support the Veteran’s contentions with regard to his exposure to jet fuel and the possible identity of any of the other additives and solvents. 2. After consulting with the Veteran in an effort to narrow the possible date or details of his transit by way of Da Nang, contact JSRRC and any and all other appropriate agencies in an attempt to confirm information about the Veteran’s transit off the USS Hanover and document the efforts that have been made for the file. 3. Consult with the Veteran to obtain and associate with the claims file any outstanding private and VA medical records. 4. Request the Joint Services Records Research Center (JSRRC), Defense Personnel Records Information Retrieval System (DPRIS) and any other appropriate Federal department to confirm whether the USS Hanover was within 12 nautical miles offshore of the Republic of Vietnam while the Veteran was aboard and document the efforts that have been made for these requests in the file. 5. After completing the foregoing development, if presumptive service connection is not granted, afford the Veteran VA examinations with appropriate specialist(s) to conduct examinations for each of the two disabilities and determine the nature and etiology of his diabetes mellitus type II and heart disease. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, the and Veteran’s statements. The examiner is encouraged to assess the current state of medical knowledge on the subject, including any information or articles that may be submitted by the Veteran, and the examiner should note that this review was accomplished. Any indicated tests and studies should be undertaken and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner(s) should evaluate the Veteran’s diabetes mellitus type II and heart disease separately. For diabetes mellitus type II, opine whether it is at least as likely as not that the Veteran’s diagnosed diabetes mellitus type II was caused by, aggravated by, manifested during, or was otherwise etiologically related to his military service, to include claimed exposure to herbicides, jet fuel, other fuel and/or unknown solvents, or other exposure therein (regardless of the fact that such an association may or may not be presumed.) For heart disease, opine whether it is at least as likely as not that the Veteran’s diagnosed heart disease was caused by, aggravated by, manifested during, or was otherwise etiologically related to his military service, to include claimed exposure to herbicides, jet fuel, other fuel and/or unknown solvents, or other exposure therein (regardless of the fact that such an association may or may not be presumed.) The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. A clear explanation for all opinions based on specific   facts of the case as well as relevant medical principles is needed. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.M. Schneider 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.