Citation Nr: 21004544 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 20-05 712 DATE: January 27, 2021 ORDER The appeal concerning entitlement to service connection for right ear hearing loss is dismissed. New and material evidence has been received to reopen a claim of entitlement to service connection for type 2 diabetes mellitus. Entitlement to service connection for type 2 diabetes mellitus is granted. Entitlement to service connection for prostate cancer is granted. FINDINGS OF FACT 1. In August 2020, prior to the promulgation of a decision in the appeal, the Board received notification that the Veteran wished to withdraw his appeal concerning the issue of service connection for right ear hearing loss. 2. In July 2008, VA denied service connection for type 2 diabetes mellitus; the Veteran did not appeal this decision and new and material evidence was not received within the one-year appeal period. 3. New evidence submitted since the July 2008 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating a claim of entitlement to service connection for diabetes. 4. The Veteran served in Korea from April 1968 to June 1969 and the evidence is at least in equipoise as to whether he served in or near the Korean Demilitarized Zone (DMZ); resolving reasonable doubt in his favor, he is presumed to have been exposed to herbicide agents during his active military service. 5. Medical evidence is at least in equipoise as to whether the Veteran has a diagnosis of type 2 diabetes mellitus during the appeal period. 6. Medical evidence shows the Veteran has current residuals related to prostate cancer status post prostatectomy. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal concerning service connection for right ear hearing loss by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The July 2008 rating decision is final; new and material evidence has been received to reopen the claim of service connection for type 2 diabetes mellitus. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(a), 20.1103. 3. The criteria for service connection for type 2 diabetes mellitus as due to exposure to herbicide agents have been met. 38 U.S.C. §§ 1110, 1116B; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e). 4. The criteria for service connection for prostate cancer as due to exposure to herbicide agents have been met. 38 U.S.C. §§ 1110, 1116B; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1967 to June 1969. He also served in the Army National Guard from February 1974 to February 1996. Additional evidence was added to the record following the April 2020 statement of the case. Automatic waiver applies. 38 U.S.C. § 7105(e). Withdrawal Entitlement to service connection for right ear hearing loss In February 2018, VA denied entitlement to service connection for hearing loss. In December 2019, VA granted service connection for left ear hearing loss and furnished a statement of the case addressing service connection for right ear hearing loss. The Veteran subsequently perfected an appeal of this issue. In correspondence received in August 2020, the attorney indicated that the Veteran wished to withdraw his appeal concerning right ear hearing loss. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the appellant has withdrawn this appeal and there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to this issue and it is dismissed. New and Material Evidence Whether new and material evidence has been received to reopen a claim of entitlement to service connection for type 2 diabetes mellitus In July 2008, VA denied service connection for type 2 diabetes mellitus to include as due to exposure to herbicide agents. The decision indicates that the Veteran did not serve in Vietnam and was not assigned to one of the units in Korea for which VA concedes herbicide exposure. The Veteran did not appeal this decision and new and material evidence was not received within the one-year appeal period. Thus, the decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In November 2017, the Veteran requested to reopen his claim. In March 2018, VA denied service connection for diabetes. The Veteran disagreed with the decision and perfected this appeal. While the March 2018 rating acknowledges the claim had been previously denied, it did not consider whether new and material evidence had been submitted. The Veteran is not prejudiced by the Board’s consideration of this issue given the favorable finding herein. See Bernard v. Brown, 4 Vet. App. 384 (1993). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). New evidence means existing evidence not previously submitted to agency decisionmakers. 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. Id. In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Relevant evidence at the time of the final July 2008 decision included the Veteran’s service personnel records which indicate he served in Korea but did not show that his unit operated in or near the DMZ or that he was otherwise exposed to herbicides. Evidence added to the record since the final July 2008 decision includes articles indicating that Camp Casey (where the Veteran was stationed) was geographically close to the DMZ. Also submitted were statements (from the Veteran and a buddy) indicating that his duties included travel to the DMZ. Additionally, the attorney provided argument concerning the applicability of the Blue Water Navy Vietnam Veterans Act of 2019. On review, this evidence is new as it was not previously considered. It is also material in that relates to an unestablished fact (in-service herbicide exposure) and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened herein. 38 C.F.R. § 3.156(a). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Entitlement to service connection for type 2 diabetes mellitus Entitlement to service connection for prostate cancer In March 2018, VA denied service connection for diabetes and prostate cancer. The Veteran disagreed with the decision and perfected this appeal. The Veteran does not assert that the claimed disorders began during active service or that they are related to his National Guard service. Rather, he contends that the disorders are due to in-service exposure to herbicide agents. If a claimant was exposed to an herbicide agent during active military, naval, or air service, certain conditions to include type 2 diabetes and prostate cancer, shall be presumed to be service connected even though there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Applicable regulations state that a veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DoD), operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, 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 C.F.R. § 3.307(a)(6)(iv). Recent legislation has added section 1116B to 38 U.S.C. providing for a presumption of herbicide exposure for certain veterans who served in Korea, effective January 1, 2020. See Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23 (2019) (codified at 38 U.S.C. § 1116B). Specifically, the legislation provides that the presumption of exposure will apply to a veteran “who, during active military, naval, or air service, served in or near the Korean [DMZ], during the period beginning on September 1, 1967, and ending on August 31, 1971.” Service personnel records indicate that the Veteran served in Korea from April 1968 to June 1969 and was assigned to “HHC 7th Inf Div.” His unit is not one of the units on the list provided by the DoD which is currently known to have operated near the DMZ during the periods that herbicides were applied. A February 2018 response from the Joint Services Records Research Center (JSRRC) indicates that the Veteran’s unit was located at Camp Casey, but the records did not document the use, storage, spraying, or transportation of herbicides. Additionally, they did not mention or document any specific duties performed by members of the Veteran’s unit along the DMZ. In March 2018, VA completed a Formal Finding indicating that it was unable to verify that the Veteran was exposed to Agent Orange. In affidavits dated in August 2019 and October 2020, the Veteran indicated that Camp Casey was about a 20 minute drive to the DMZ. While at Camp Casey, he initially served on the Honor Guard and his primary job was training. On Thanksgiving Day 1968 he went with another soldier to deliver supplies to the DMZ. He also went there several times to inspect training. They went to the supply tent but did not go to the front line. From Camp Casey, he could see planes spraying what he believed was Agent Orange along the perimeter of the DMZ. In September 2019, the Veteran testified at a Decision Review Officer (DRO) hearing. He indicated that Camp Casey was roughly 15 miles from the DMZ and that he delivered supplies and inspected trainings in that area. In a September 2019 statement, K.M. indicated that he served with the Veteran in Korea. He worked in the motor pool and remembered that on Thanksgiving Day 1968 he had to release a vehicle for the Veteran and another soldier to deliver supplies to another unit located on the DMZ. He remembered it vividly because it was a holiday. He further stated that this was not the only trip the Veteran made to the DMZ. In a September 2019 statement, the Veteran stated that he made regular trips up north to the 2nd Division because he was a training noncommissioned officer (NCO) and at times, they also carried supplies up there. He indicated that there were many occasions that he went up to the DMZ. The attorney has submitted similar argument throughout the appeal period. See correspondence received in August 2019, January 2020, and October 2020. He essentially argues that presumptive service connection is warranted because the Veteran was exposed to herbicide agents during his service in Korea. In support, he cited to the passage of recent legislation and submitted articles indicating that Camp Casey was approximately 11 miles from the DMZ. He noted that the Veteran served at Camp Casey with a military occupational specialty (MOS) in supply. He also discussed lay statements from the Veteran and his buddy concerning trips made to units near the DMZ. Finally, the attorney referenced Board decisions concerning other claimants. The Board observes that these decisions are nonprecedential. See 38 C.F.R. § 20.1303. The Veteran’s DD Form 214 indicates his MOS was infantry indirect fire crew. His record of assignments contained in personnel records, however, indicates that during his time in Korea he was a squad member from April 1968 and a light truck driver from June 1968. Handwritten notations indicate he was an assistant training NCO from October 1968. On review, the record contains both positive and negative evidence. As above, per the response from JSRRC, official documentation does not show that the Veteran’s unit used, stored, sprayed or transported herbicides nor does it document that any specific duties were performed by members of his unit along the DMZ. The Veteran’s service records along with his lay statements, however, support finding that he served in or near the DMZ. That is, he was assigned to a base in close proximity to that area, and he is competent to report his movements during service. His statements to this effect are arguably consistent with that documented in his personnel records concerning his assignments in Korea. The Veteran’s lay assertions were also corroborated by another soldier. The Board finds no reason to doubt the credibility of these statements. On review, the evidence is at least in equipoise as to whether the Veteran served in or near the DMZ during the relevant period. Resolving reasonable doubt in his favor, in-service exposure to herbicide agents is presumed. 38 C.F.R. § 3.102. Having established in-service exposure, the Board must consider whether the Veteran has the claimed disorders. The Veteran underwent a VA Agent Orange examination in August 2009. He reported that he was diagnosed with diabetes in 2004 by his private physician. He did not require medication and it was controlled with diet alone. Diagnosis was history of type 2 diabetes mellitus since 2004. The Veteran underwent a VA examination in October 2019. The examiner stated that record review did not support a laboratory confirmed diagnosis of diabetes. The Veteran had subjectively reported to providers in the past that he has diet-controlled diabetes but there was no documentation of proven diabetes available and labs done at this visit demonstrate that the Veteran does not have diabetes. Laboratory insulin in September 2019 ordered by his primary care physician further supported no pancreatic dysfunction with a normal insulin level of 11.9. She further stated that the most recent A1C was 5.1 and fasting glucose was 117. The examiner acknowledged the elevated glucose result but noted it did not meet the criteria of The American Diabetes Association. The Board acknowledges the VA examiner’s findings. Review of private medical records, however, shows that the Veteran was diagnosed with diabetes in approximately 2006 noted to be controlled with diet and exercise. The diagnosis appears to have been based on laboratory values as the physician documented a glucose tolerance test and A1C findings. Additionally, private records dated in March 2018 indicate that diabetes is present. An August 2020 statement from the Veteran’s private physician, Dr. P.P., indicates that the Veteran is a longstanding patient of his. It was his understanding that he had been exposed to Agent Orange and has been diagnosed with diabetes. Treatment records from this physician dated in May 2017 include an assessment of diabetes treated with diet and exercise. (Continued on the next page)   On review, the evidence is at least in equipoise as to whether the Veteran has a diagnosis of diabetes during the appeal period. Resolving reasonable doubt in his favor, a current diagnosis is established and presumptive service connection for type 2 diabetes mellitus as a disease associated with herbicide exposure is warranted. See 38 C.F.R. § 3.309(e). As to prostate cancer, evidence of record shows that the Veteran underwent a prostatectomy in March 2014 and diagnosis was prostatic adenocarcinoma. Recent treatment records note continued residuals related to same. Thus, presumptive service connection for prostate cancer as a disease associated with herbicide exposure is also warranted. Id. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Carsten, 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.