Citation Nr: 21002735 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 19-09 027A DATE: January 14, 2021 ORDER Based upon the presentation of new and material evidence, the claim for service connection for diabetes mellitus, type II, as due to exposure to herbicide agents and/or radiation exposure, is reopened. REMANDED The claim for service connection for diabetes mellitus, type II, as due to exposure to herbicide agents and/or radiation exposure, is remanded. The claim for service connection for Parkinson’s disease, as due to exposure to herbicide agents and/or radiation exposure, is remanded. FINDINGS OF FACT 1. The February 2015 VA Regional Office (RO) rating decision denied the original claim for service connection for diabetes mellitus. The Veteran did not file a timely appeal from the denial or submit new and material evidence within one year of its promulgation. 2. Since then, additional evidence has been received which presents a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The February 2015 RO rating decision denying service connection for diabetes mellitus, type II, became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 20.200, 20.302 (2019). 2. New and material evidence has been submitted to reopen the previously denied claim. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the U.S. Army from August 1965 to July 1967. Previously, the RO of its own accord had reopened the claim for service connection for diabetes mellitus. Per VA law this an issue on appeal that is within the Board’s discretion. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996). The Board reaches the same conclusion here in any event which is to reopen. The reopened claim on its merits for service connection for diabetes mellitus, along with the claim for service connection for Parkinson’s disease, are addressed in the remand section below. The claim for service connection for diabetes mellitus, type II, as due to exposure to herbicide agents and/or radiation exposure is reopened. By its February 2015 rating decision, the RO denied the Veteran’s original claim for service connection for diabetes mellitus, type II, as due to exposure to herbicide agents and/or radiation exposure. The Veteran asserted he had been exposed to herbicide agents on Guam. The claim was denied in part because there was no documentation or other evidence of exposure to herbicide agents in service, or otherwise competent evidence there was radiation exposure. As a result, the criterion of a causal relationship between the claimed disability and an incident of service was not met. The Veteran did not file a timely appeal within one year of the notification of that decision. Hence, it became final on the merits. See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 20.200 (2019). In March 2015, the Veteran submitted a statement reiterating his belief that he had been exposed to herbicides on Guam, but did not provide additional evidence in support of this claim. His statement was cumulative of statements that were of record at the time of the February 2015 decision. There was no evidence obtained within a year of that decision to warrant reconsideration. See 38 C.F.R. § 3.156(b). The petition to reopen this matter was received in December 2017. When a claim to reopen is presented under section 5108, VA must first determine whether the evidence presented or secured since the last final disallowance of the claim is new and material. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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, 117 (2010). Here, the Veteran’s attorney provided a citation to a recent study by a veteran’s advocacy group that was completed along with a reputed law school clinic, and it states that those persons who served in Guam between 1962 to 1975 likely had Agent Orange exposure. This is new information that pertains to the reason why his claim was previously denied. Finding new and material evidence presented here, the Board reopens the claim for service connection for diabetes mellitus. See 38 C.F.R. § 3.159 (2019). There is further evidentiary development requested regarding this matter pursuant to the remand section below. REASONS FOR REMAND 1. The claim for service connection for diabetes mellitus, type II, as due to exposure to herbicide agents and/or radiation exposure, is remanded. 2. The claim for service connection for Parkinson’s disease, as due to exposure to herbicide agents and/or radiation exposure, is remanded. The reopened claim on the merits for service connection for diabetes mellitus, along with the original claim for service connection for Parkinson’s disease, are remanded for further evidentiary development. There should be requested verification from the Joint Services Records Research Center (JSRRC) for whether the Veteran was exposed to herbicides on Guam. In a January 2015 memorandum, it was noted that one of the reasons his claim was not sent to the JSRRC was because the Veteran did not provide a 60 day timeframe. If a limited time period is necessary to request development (such as a 60-day period), multiple requests should be made to cover the entire time period claimed by the Veteran. See Gagne v. McDonald, 27 Vet. App. 397, 404 (2015). The matters are REMANDED for the following action: 1. Send this case to the JSRRC and request confirmation as to whether the Veteran had probable in-service exposure to Agent Orange, based on his overseas service on Guam, taking account his unit designation, military occupational specialty (MOS) then, and several statements on the matter he gave describing his in-service duties from November 2020 and previously from during September 2014. 2. Then readjudicate the claims on appeal in light of all additional evidence received. If the benefits sought on appeal are not granted, the Veteran and his attorney should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jason Lyons, 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.