Citation Nr: 21062152 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-05 763 DATE: October 6, 2021 ORDER The previously denied claim of entitlement to service connection for diabetes mellitus is reopened. Entitlement to service connection for diabetes mellitus type II is granted. Entitlement to service connection for neuropathy of the right foot as secondary to diabetes mellitus type II is granted. Entitlement to service connection for neuropathy of the left foot as secondary to diabetes mellitus type II is granted. FINDINGS OF FACT 1. In an unappealed February 2015 rating decision, the issue of entitlement to service connection for diabetes mellitus was denied finding that there was no connection to service as the evidence did not show Vietnam service or otherwise show herbicide agent exposure. 2. Additional evidence received since the February 2015 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for diabetes, and raises a reasonable possibility of substantiating the claim. 3. The Veteran has a diagnosis of diabetes mellitus type II. 4. The Veteran's neuropathy of the bilateral feet has been associated as a complication of his diabetes mellitus type II. 5. Resolving doubt in favor of the Veteran, he served in Vietnam during the Vietnam War, during which time he was exposed to herbicide agents. CONCLUSIONS OF LAW 1. The Regional Office's February 2015 rating decision denying service connection for diabetes is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.1103. 2. New and material evidence has been received to reopen the Veteran's claim for service connection for diabetes. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. §§ 3.303, 3.156. 3. The criteria for an award of service connection for diabetes mellitus type II have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for an award of service connection for neuropathy of the bilateral feet as secondary to diabetes mellitus type II have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to August 1971 and from November 1971 to December 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision issued by a VA Regional Office (RO), which denied service connection for right and left foot diabetic pain and continued the denial of service-connection for diabetes (which was denied in a February 2015 rating decision). The RO's decision to reopen the claim for service connection for diabetes is not binding on the Board and, consequently, the Board is obligated to consider the issue of new and material evidence and make an independent determination. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The issues have been appropriately recharacterized above. 1. The previously denied claim of entitlement to service connection for diabetes mellitus is reopened. In a February 2015 rating decision, the RO denied service connection for diabetes based on the finding that there was no connection to service as the evidence did not show Vietnam service or otherwise show herbicide agent exposure. The RO notified the Veteran of its decision, and of his appellate rights, but he did not initiate an appeal of the RO's decision within one year nor was any new and material evidence received within a year. As a result, the RO's decision became final. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. Evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is 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. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence received since the time of the February 2015 rating decision includes reports from the Veteran and his friend from service regarding their service in Vietnam during the Vietnam War. See September 2016 Submission. This evidence was not before adjudicators when the Veteran's claim was last finally denied and it is not cumulative or redundant of the evidence of record at the time of that decision. The new evidence relates to an unestablished fact necessary to substantiate the claim for service connection for diabetes (herbicide agent exposure in service) and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. 2. Entitlement to service connection for diabetes mellitus type II is granted. 3. Entitlement to service connection for neuropathy of the right foot as secondary to diabetes mellitus type II is granted. 4. Entitlement to service connection for neuropathy of the left foot as secondary to diabetes mellitus type II is granted. The Veteran filed a claim for service connection for diabetes and diabetic pain in his bilateral feet due to exposure to herbicide agents during service. The Veteran reported that he made trips to Vietnam during his service at Ching Chuan Kang (CCK) Air Base, Taiwan, during the Vietnam War. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated in service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). A Veteran who served on active duty in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed to an herbicide agent, absent affirmative evidence to the contrary. See 38 C.F.R. § 3.307(a)(6)(iii). The United States Court of Appeals for the Federal Circuit (Federal Circuit) held in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc), that the phrase "the Republic of Vietnam" included the 12-nautical mile territorial sea of Vietnam. VA regulations further provide that service connection is warranted for certain diseases as presumptively due to herbicide exposure. 38 C.F.R. § 3.309(e). Diabetes mellitus type II is among those diseases. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence showing that a current disability exists and that the disability was caused by or aggravated by a service-connected disability. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, the Veteran has a diagnosis of diabetes mellitus type II with neuropathy of the bilateral feet. See, e.g., September 2016 VA Treatment Record; March 2014 Private Treatment Record. Considering the evidence as a whole, and resolving doubt in favor of the Veteran, the evidence also shows that the Veteran was presumptively exposed to herbicides. The Veteran's service personnel records show that the Veteran served at CCK Air Base, Taiwan, from March 1969 to June 1970. The Veteran reported that while he served at CCK Air Base in Taiwan, he served on temporary duty travel to Cam Rahn Bay, Vietnam for 55 days. The Veteran's friend submitted a statement reporting that he had also served at CCK Air Base in Taiwan with the Veteran. The Veteran's friend reported that he was a crew chief on C-130s and that he and the Veteran would go to Cam Rahn Bay in Vietnam two to three times a month on temporary duty travel status to bring in supplies. The Veteran's friend reported that these trips took place in 1969 and 1970. The Veteran's performance evaluation reports around that time period show that he worked on C-130s. In addition, the Veteran's service personnel records show that the Veteran received the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, and the Republic of Vietnam Gallantry Cross with Palm. The Board notes that the Republic of Vietnam awarded the Vietnam Gallantry Cross with Palm to units for valorous combat achievements which indicates that the Veteran's unit was involved in Vietnam efforts, even if the award does not prove the Veteran's individual presence in Vietnam. The Veteran has consistently asserted that he was exposed to herbicide agents during this 1969 to 1970 period due to Vietnam service. The Board finds the Veteran competent and credible in reporting his visits to Vietnam during this time period. The Veteran's statements are supported by other evidence in the record, including the Veteran's service personnel records and his friend's statement. Although the Veteran and his friend reported visits to Cam Rahn Bay, they reported being on the ground at Cam Rahn Bay in Vietnam and other stops around the country. See September 2016 Statements; September 2021 Informal Hearing Presentation. Accordingly, resolving doubt in favor of the Veteran, the Veteran served in Vietnam and is presumed exposed to herbicide agents. As noted above, diabetes mellitus type II is a disease for which service connection is presumptively granted for Veterans who served in the Republic of Vietnam during the Vietnam War and were therefore presumptively exposed to herbicide agents. Accordingly, service connection for diabetes mellitus type II on a presumptive basis is warranted. The Veteran's neuropathy of the bilateral feet has been associated as a complication of his diabetes, as noted in his treatment records. See September 2016 VA Treatment Record (diagnosing Veteran with diabetes mellitus with neuropathy following Veteran's complaints of numbness and tingling in his feet); September 2016 VA Treatment Record (providing provisional diagnosis of diabetes mellitus type II with diabetic polyneuropathy in prescription for a pair of diabetic shoe inserts). Accordingly, service connection for neuropathy of the bilateral feet as secondary to diabetes mellitus is warranted. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Purcell, Amy 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.