Citation Nr: 21003873 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 19-15 085 DATE: January 25, 2021 ORDER New and material evidence having been received, the claim for service connection for dysautonomia is reopened. Service connection for dysautonomia is granted. FINDINGS OF FACT 1. In an April 2014 decision, the RO denied entitlement to service connection for dysautonomia. The Veteran did not appeal. 2. The evidence added to the record since the April 2014 RO decision was not previously submitted to agency decision makers, is not cumulative or redundant and, by itself or when considered with the previous evidence of record, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for dysautonomia. 3. Resolving all doubt in the Veteran’s favor, he is shown to have been exposed to herbicides while serving at Korat Royal Thai Air Force Base in Thailand during the Vietnam Era. 4. The Veteran’s dysautonomia is etiologically related to his in-service exposure to herbicides. CONCLUSIONS OF LAW 1. The April 2014 rating decision that denied entitlement to service connection for dysautonomia is final. 38 U.S.C. § 7105(c); 38 U.S.C. § 20.1103. 2. New and material evidence has been received to reopen a claim of entitlement to service connection for dysautonomia. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to service connection for dysautonomia have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1967 to December 1991. He was awarded numerous awards, including, but not limited to, the Distinguished Flying Cross for missions in Vietnam. See 38 U.S.C. § 1154(b). These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2018 rating decision. In January 2021, the Veteran testified before the undersigned at a Board hearing held via videoconference. The transcript from the hearing has not yet been associated with the file as the appeal is being granted under the Board’s “One Touch” program. The hearing transcript will still be processed and associated with the claims file in the ordinary course of business. New and Material Evidence In order to reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial. See 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 282-3 (1996) (holding that § 5108 requires a review of 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). VA regulation defines “new and material evidence” as follows. “New evidence” means evidence not previously submitted to agency decision makers, and “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. 38 C.F.R. § 3.156 (a). The new evidence must neither be 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. Id.; see Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (holding that there is a “low threshold” for reopening). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. New and material evidence having been received, the claim for service connection for dysautonomia is reopened. The Veteran petitions to reopen his previously denied service connection claim for dysautonomia. For the following reasons, the Board finds that reopening is warranted. Service connection for dysautonomia was previously denied in an April 2014 rating decision because the RO found that “this condition neither occurred in nor was caused by service.” The Veteran was notified of the April 2014 decision and his appellate rights in a letter dated April 22, 2014, but he did not initiate an appeal within one year of notification of the decision. Accordingly, the April 2014 rating decision is final. See 38 U.S.C. § 7105 (c); 38 U.S.C. § 20.1103. Since the April 2014 rating decision, three positive nexus opinions have been associated with the claims file in addition to private treatment records. The Board finds the evidence is not cumulative or redundant of the evidence previously of record, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156 (a). As noted above, the credibility of the evidence is also presumed. Therefore, the claim is reopened. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Significantly, the law also establishes a presumption of entitlement to service connection for diseases associated with exposure to certain herbicide agents (including prostate cancer) and also provides a presumption of exposure for veterans who served in the Republic of Vietnam. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6)(iii). VA regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, 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. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6)(iii). For purposes of applying the presumption of exposure to herbicide agent under 38 C.F.R. § 3.307 (a)(6)(iii), the service member must have actually been present on the landmass or the inland waters of Vietnam during the Vietnam Era. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008); cert. denied, 555 U.S. 1149 (2009). Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit has determined a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff’g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). There are no regulatory or statutory presumptions regarding herbicide exposure in Thailand; however, VA procedures for verifying exposure to herbicides in Thailand during the Vietnam Era are detailed in the VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H. VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. See M21-1, Part IV.ii.1.H.5.a. A section of this manual addresses herbicide exposure in Thailand during the Vietnam Era. (In this regard, the sense of the word “herbicide” as used in the manual is understood to mean “herbicide agent” as used in the regulation.) The manual directs rating specialists to concede herbicide agent exposure to those who served in the U.S. Air Force at a number of Royal Thai Air Force Bases (RTAFBs). The majority of troops in Thailand during the Vietnam Era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air 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), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10(q). In Disabled Am. Veterans v. Sec’y of Veterans Affairs, 859 F.3d 1072 (Fed. Cir. 2017), the Federal Circuit held the M21-1 is an internal manual used to guide VA adjudicators and does not establish substantive rules. The Federal Circuit specifically noted that the Board is not bound by the M21-1. See also Overton v. Wilkie, 30 Vet. App. 257 (2018). However, the Board is not free to simply ignore the Secretary’s guidance on an issue. See 38 C.F.R. § 19.5; see also Overton v. Wilkie, 30 Vet. App. 257, 264 (2018) (“the Board is required to discuss any relevant provisions contained in the M21-1 as part of its duty to provide adequate reasons or bases, but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an M21-1 provision as a factor to support its decision.”) Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, a preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 2. Service connection for dysautonomia is granted. The Veteran asserts his dysautonomia is etiologically related to his active service because of his exposure to herbicides such as Agent Orange while he was stationed in Thailand during the Vietnam Era. See May 2019 VA Form 9. The Veteran’s personnel records received in December 2013 confirm he had active service in Thailand at Korat Royal Thai Air Force Base. His treatment records within his claims file also note a present disability. See April 2019 Private Treatment Report. Although veterans who served in Vietnam are presumed to have been exposed to herbicides, the Veteran did not serve in Vietnam as that term is defined in the applicable regulation. In his May 2019 VA Form 9, the Veteran states that while stationed at Korat Royal Thai Air Force Base, his living quarters were approximately 150 feet from the base perimeter where Agent Orange was applied to defoliate jungle growth. He also recalls running along the base perimeter multiple time a week. The Veteran’s service personnel records (SPRs) received in December 2013 show he was stationed in Thailand at Korat Royal Thai Air Force Base from August 1968 to August 1969. The brief description of his duty within the SPRs notes he was a squadron navigator. In sum, the Veteran served at Korat Royal Thai Air Force Base in Thailand during the Vietnam era and performed duties as a squadron navigator, and there is credible evidence in the form of his statements that he was otherwise near the air base perimeter. His accounting as to the type of duties he performed in close proximity to the perimeter of Korat Royal Thai Air Force Base are deemed competent lay evidence of what the Veteran observed during his period of service in Thailand. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). Upon review of the record, there is no evidence available that would refute the Veteran’s recollections or cause the Board to question his credibility. Moreover, there is no requirement that exposure to herbicides be definitively shown by personnel records. Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 176 (2016). The Board finds the evidence is at least evenly balanced as to whether the Veteran worked in an area where herbicides were sprayed. As the reasonable doubt must be resolved in favor of the Veteran, the Board finds he was exposed to herbicides. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (benefit of the doubt doctrine applies to “any... point”). Although the Veteran served at Korat Royal Thai Air Force Base in Thailand during the Vietnam era and was exposed to herbicides during that time, service connection for dysautonomia is not warranted on a presumptive basis as due to herbicide exposure, including Agent Orange, because the herbicide presumption set forth in 38 U.S.C. § 1116 and 38 C.F.R. § 3.307 does not apply. Dysautonomia is not one of the enumerated disabilities that are presumed due to herbicide exposure that are listed under 38 C.F.R. § 3.309 (e). However, as noted in Combee, the Veteran may still establish service connection with proof of direct causation. Turning to the issue of direct causation, the Board is now left to consider whether there is a nexus between the Veteran’s currently diagnosed dysautonomia and his active duty service, to include the conceded exposure to herbicides. Affording the Veteran the benefit of the doubt, the Board finds he also satisfies the third Shedden element. In July 2017, S.J., M.D. of the Department of Neurology at Stanford Health care provided a positive nexus opinion. He stated that it was his medical opinion “with great certainty” that the Veteran’s condition is directly related to his prolonged exposure to herbicidal dioxin (Agent Orange) from August 1968 to August 1969. He concluded by noting that his opinion is stated to a reasonable degree of medical certainty. Another positive nexus opinion is of record from July 2017. It was provided by R.D., M.D. The doctor states the cause of the Veteran’s dysautonomia had never been clearly discerned; however, he believed it is very likely the condition may have been caused by prolonged exposure to Agent Orange from August 1968 through August 1969 while the Veteran was stationed at Korat Royal Thai Air Force Base. Finally, a March 2019 positive nexus opinion is of record. Dr. R.D. again opines that he believed it is very likely the Veteran’s dysautonomia was caused by exposure to Agent Orange. (Continued on the next page)   Collectively, these opinions were based on examinations of the Veteran, consideration of his documented medical history, consideration of his lay statements, and applicable medical principles. Furthermore, as stated by Dr. R.D. in July 2017, they can discern no other etiology for the Veteran’s condition, and the record contains no evidence of an alternate etiology for the Veteran’s dysautonomia. Finally, there is no negative opinion of record to counter the positive opinions. As such, affording the Veteran the benefit of the doubt, a nexus is established. Accordingly, the appeal for service connection for dysautonomia is granted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. P. M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Buck Denton 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.