Citation Nr: 21002957 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 19-16 476 DATE: January 19, 2021 ORDER New and material evidence having been received, the appeal to reopen the claim of entitlement to service connection for type II diabetes mellitus is granted. Service connection for type II diabetes mellitus is granted. Service connection for coronary artery disease is granted. Service connection for prostate cancer is granted. FINDINGS OF FACT 1. A February 2009 rating decision denied the claim of entitlement to service connection for type II diabetes mellitus; the Veteran did not file a timely notice of disagreement, and no evidence was received within one year of the rating decision, nor were new, relevant service records received any time thereafter. 2. The evidence associated with the claims file subsequent to the February 2009 rating decision denying service connection for type II diabetes mellitus is not cumulative, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. The Veteran has been diagnosed with type II diabetes mellitus, coronary artery disease, and prostate cancer, and there is credible evidence to support a finding that he was exposed to herbicides while stationed at Udorn Royal Thai Air Force Base (RTAFB) during active service. CONCLUSIONS OF LAW 1. The February 2009 rating decision, which denied service connection for type II diabetes mellitus, became final. 38 U.S.C. § 7105(a); 38 C.F.R. §§ 20.302, 20.1103. 2. The evidence received subsequent to the February 2009 rating decision denying service connection for type II diabetes mellitus is new and material, and the claim of entitlement to service connection for type II diabetes mellitus is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. Resolving reasonable doubt in favor of the Veteran, the criteria for presumptive service connection for type II diabetes mellitus have been met. 38 U.S.C. §§ 101, 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309; M21-1 Adjudication Procedures Manual (M21), Part IV, Subpart ii, Chapter 1, Section H, Topic 4(b). 4. Resolving reasonable doubt in favor of the Veteran, the criteria for presumptive service connection for coronary artery disease have been met. 38 U.S.C. §§ 101, 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309; M21-1 Adjudication Procedures Manual (M21), Part IV, Subpart ii, Chapter 1, Section H, Topic 4(b). 5. Resolving reasonable doubt in favor of the Veteran, the criteria for presumptive service connection for prostate cancer have been met. 38 U.S.C. §§ 101, 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309; M21-1 Adjudication Procedures Manual (M21), Part IV, Subpart ii, Chapter 1, Section H, Topic 4(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant in this case, had active service in the U.S. Air Force from November 1963 to October 1967. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from an August 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his wife and son provided testimony at a December 2020 virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims folder. New and Material Evidence 1. New and material evidence having been received, the appeal to reopen the claim of entitlement to service connection for type II diabetes mellitus is granted. In January 2007, the Veteran filed an initial claim for service connection for type II diabetes mellitus, claimed as secondary to Agent Orange exposure. The claim was denied in a September 2007 rating decision, in which the RO found no evidence of service in Vietnam (which would enable to finding of presumed herbicide exposure) or, otherwise, a medical nexus between the claimed diabetes and active service. The Veteran did not file a timely notice of disagreement (NOD), and no evidence was received within one year of the September 2007 rating decision, nor were new, relevant service records received at any time thereafter. 38 C.F.R. § 3.156(b) and 3.156(c). Consequently, the September 2007 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. A special review of the Veteran’s file was mandated in February 2009, and in July 2009, the RO issued a rating decision again denying service connection for diabetes, stating that VA was unable to verify that the Veteran stepped foot in Vietnam or was otherwise exposed to herbicides. Again, the Veteran did not file a timely NOD, no evidence was received within one year of the February 2009 rating decision, and no new, relevant service records were received at any time thereafter. 38 C.F.R. § 3.156(b) and 3.156(c). Consequently, the February 2009 rating decision also became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. In October 2017, the Veteran filed a request to reopen his claim of entitlement to service connection for type II diabetes mellitus. In the August 2018 rating decision on appeal, the RO reopened and denied the claim. Based on the procedural history outlined above, the issue for consideration with respect to the Veteran’s claim is whether new and material evidence has been received to reopen the claim of entitlement to service connection for type II diabetes mellitus. Evidence added to the record since the time of the last final denial of the diabetes claim in February 2009 includes the Veteran’s testimony at the December 2020 Board hearing regarding the details of his exposure to herbicides while stationed in Thailand during active service, as well as his wife’s testimony corroborating such exposure. The Board finds that this evidence constitutes new and material evidence as it tends to support exposure to herbicides during active service, the lack of which was the basis for the previous denial of the claim. Therefore, the Board finds that the evidence added to the record since the last final February 2009 denial of the diabetes claim constitutes new and material evidence, and that the criteria under 38 C.F.R. § 3.156(a) have been satisfied; therefore, the claim of entitlement to service connection for type II diabetes mellitus is reopened. Service Connection 2. Service connection for type II diabetes mellitus is granted. 3. Service connection for coronary artery disease is granted. 4. Service connection for prostate cancer is granted. The Veteran contends that he was exposed to herbicides (Agent Orange) while stationed in Thailand during active service, and that such exposure caused his current type II diabetes mellitus, coronary artery disease, and prostate cancer. For the reasons discussed below, the Board has resolved reasonable doubt in favor of the Veteran and finds that service connection is warranted. For certain diseases with a relationship to herbicide agent exposure, including type II diabetes mellitus, coronary artery disease, and prostate cancer, a presumption of service connection arises if the disease manifests to a degree of 10 percent or more following service in the Republic of Vietnam any time during the period from January 9, 1962, to May 7, 1975, or following service in a unit that operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have been applied at any time during the period from April 1, 1968, to August 31, 1971. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6)(i)(iv), 3.309(e). There are no regulatory or statutory presumptions regarding herbicide exposure in Thailand. However, the Board recognizes that the Veterans Benefits Administration (VBA) has established procedures for verifying exposure to herbicide agents in Thailand during the Vietnam Era. M21-1 Adjudication Procedures Manual (M21), Part IV, Subpart ii, Chapter 1, Section H, Topic 4(b). The M21 reflects the internal rules and procedures for claims adjudication by VBA. The M21 provisions do not go through the regular rulemaking procedures and is little more than evidence as to how VBA applies law and regulation in practices; it is not binding on the Board as it is not a regulation, instruction of the Secretary, or OGC opinion. 38 U.S.C. § 7104(c). That being said, to the extent the M21 procedures provide a mechanism for VA in developing such claims, they should be followed. Most troops in Thailand during the Vietnam era were stationed at the RTAFBs of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. Id. at Topic 4(b). If an Air Force veteran served on one of these 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 Military Occupational Specialty (MOS), daily work duties, performance evaluations, or other credible evidence, then herbicide exposure will be conceded on a direct/fact-found basis. If a veteran provides statements that he or she was involved in perimeter security duty, then such assertions require credible supporting evidence, and VBA should conduct the appropriate research necessary to verify such statements. Id. These procedures apply to veterans who served during the Vietnam era from January 9, 1962 to May 7, 1975. Id. The Board recognizes that the medical evidence of record shows that the Veteran has current diagnoses of type II diabase mellitus, coronary artery disease, and prostate cancer. All three of these are diseases for which service connection is presumed if exposure to herbicides can be shown. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Thus, these claims hinge on whether the evidence demonstrates that the Veteran was exposed to herbicides. The Veteran’s service personnel records verify that he served as a helicopter mechanic and was stationed at Udorn RTAFB in Thailand from December 1966 to October 1967. The Veteran testified at the December 2020 Board hearing that his duties as a helicopter mechanic required him to transport, repair, and clean helicopters that were flying in and out of Vietnam from the base in Thailand. He also conducted test flights of the helicopters after they were repaired on a daily basis. He also lived right along the main road of the base, which was near the perimeter of the base, and often went off the base to the nearby town. His son also stated that he remembered seeing pictures of the Veteran off base in the nearby town. The Board is satisfied that it has enough credible evidence to show that the Veteran was in frequent enough contact with the perimeter of the Udorn base to find in-service exposure to herbicides. As a helicopter mechanic, the Veteran would have been required to fly helicopters over the perimeter of the base frequently, as he testified. In addition, both the Veteran and his son credibly testified that the Veteran left the base to go to the nearby town. These activities would have put the Veteran in frequent contact with the perimeter of the base, thereby exposing him to herbicides. In sum, the Board finds that there is enough credible evidence to find that the Veteran had frequent contact with the perimeter of the Udorn base to render a finding that he was exposed to herbicides. See M21, IV.ii.1.H.4(b). As a result, the Board finds that the Veteran’s type II diabetes mellitus, coronary artery disease, and prostate cancer are presumed to be related to his military service, and his appeal for service connection for these disabilities is granted. See 38 C.F.R. § 3.309(e). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Sherrard, 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.