Citation Nr: 21062337 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 12-33 038 DATE: October 7, 2021 ORDER The Veteran's application to reopen the claim of service connection for diabetes is granted. REMANDED The issue of service connection for a heart disorder is remanded. The issue of service connection for type II diabetes mellitus is remanded. The issue of service connection for prostate cancer is remanded. REFERRED The issue of whether new and material evidence has been received to reopen a claim of service connection for gallbladder removal was raised on an April 2019 Fully Developed Claim form and was previously referred in a June 2019 Board remand. The issue is again referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. In May 2013, the Veteran was notified that VA confirmed and continued a denial of service connection for diabetes. The Veteran was informed in writing of the adverse determination and his appellate rights and did not submit a notice of disagreement (NOD) with the decision. 2. The May 2013 rating decision is final. 3. The additional documentation submitted since the May 2013 rating decision is new and material and raises a reasonable possibility of substantiating the Veteran's claim of service connection for diabetes. CONCLUSIONS OF LAW 1. The May 2013 rating decision denying service connection for diabetes is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for diabetes has been presented. 38 U.S.C. §§ 5103, 5103A, 5107, 5108; 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Marine Corps from February 1969 to February 1971. In April 2015, the Veteran was afforded a hearing on the issue of service connection for a heart disorder before the undersigned Veterans Law Judge sitting at the Seattle, Washington, Regional Office (RO). In May 2017, the Board denied service connection for congestive heart failure. The Veteran subsequently appealed to the United States Court of Appeals for Veterans' Claims (Court). In an October 2018 Memorandum Decision, the Court vacated the May 2017 Board decision and remanded the Veteran's appeal to the Board. Whether new and material evidence has been received to reopen a claim of service connection for diabetes. Generally, absent the filing of an NOD within one year of the date of mailing of the notification of the initial review and determination of a veteran's claim and the subsequent filing of a timely substantive appeal, a rating determination is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error (CUE). 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 20.200, 20.300, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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. 38 C.F.R. § 3.156(a). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase "raises a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App. 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Where documents are within VA's control and could reasonably be expected to be a part of the record, such documents are, in contemplation of law, before VA and should be included in the record. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The Board is required to consider the question of whether new and material evidence has been received to reopen the Veteran's claim without regard to the RO's determination in order to establish the Board's jurisdiction to address the underlying claims and to adjudicate the claims on a de novo basis. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In November 2012, the Veteran was notified that VA denied service connection for diabetes because there was evidence that diabetes was caused by service, including by the Veteran's known exposure to contaminated water at Camp Lejeune. In May 2013, VA confirmed and continued the denial of service connection. The Veteran was informed in writing of the adverse decisions and did not submit an NOD. New and material evidence pertaining to the issue of service connection for diabetes not received by VA or constructively in its possession within one year of written notice to the Veteran of the May 2013 rating decision. Therefore, that decision became final. 38 C.F.R. § 3.156(b). The additional documentation received since the May 2013 rating decision includes VA treatment records, a disability benefits questionnaire (DBQ) submitted by the Veteran, statements from the Veteran and Board hearing testimony about his claimed in-service exposure to herbicide agents, and an October 2020 VA medical opinion which states that "it is likely that [the Veteran] did come in contact with residue of Agent Orange on an occasional uniform and set of boots." The record now contains a possible cause of the Veteran's diabetes. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Here, without examination of any other evidence of record, the newly-submitted evidence is of such significance that, when considered for the limited purpose of reopening the Veteran's claim, it raises a reasonable possibility of substantiating his claim for service connection when considered with the previous evidence of record. As new and material evidence has been received, the Veteran's claim is reopened. REASONS FOR REMAND 1. The issue of service connection for a heart disorder is remanded. 2. The issue of service connection for type II diabetes mellitus is remanded. 3. The issue of service connection for prostate cancer is remanded. The matters are REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: In a June 2019 Remand, the Board directed the RO to attempt to obtain any outstanding service treatment records (STRs) and service personnel records (SPRs), specifically to include in-service performance reviews reflecting the nature of the Veteran's duties throughout service. If performance reviews were unavailable, the RO was directed to associate with the file a memorandum stating that. The record does not indicate that the RO attempted to obtain additional STRs or SPRs since the June 2019 Remand and no memorandum was associated with the file. The record still does not contain any in service performance reviews and it is unclear whether they are unavailable or have not been obtained. Additionally, the Board directed the RO to attempt to corroborate the Veteran's reports of exposure to herbicide agents as a result of his reported duties at Camp Pendleton, California. The record indicates that the RO was directed by a Marine Corps archives technician to contact the National Archives and Records Administration (NARA). The RO emailed NARA twice but there is no indication that NARA responded. The RO should again attempt to contact NARA to corroborate the Veteran's report of herbicide agent exposure. The agency must expressly consider the Veteran's reports of the nature of his exposure. Lastly, the Veteran has not been afforded VA examinations and medical opinions have not been obtained as to the issues of service connection for prostate cancer and type II diabetes mellitus. Remand is necessary to obtain those examinations and opinions. 2. Contact the National Personnel Records Center (NPRC) and/or the appropriate service entity and ask that it verify the Veteran's complete periods of service. All STRs and SPRs not already of record must be associated with the Veteran's file. The RO MUST attempt to obtain in-service performance reviews reflecting the nature of the Veteran's duties throughout service. If performance reviews are unavailable, a memorandum stating that must be associated with the file. 3. Contact NARA to attempt to obtain any information about the Veteran's possible exposure to herbicide agents as a result of his reported duties at Camp Pendleton, California. The agency must expressly consider the Veteran's contention that he was exposed by his duties, which involved processing the clothing, boots, and personal effects of individuals killed or missing in the Republic of Vietnam. The Veteran asserted that these materials had herbicide agents on them when he processed them. He stated that he wore no protective equipment when processing the materials. 4. If the RO cannot corroborate the Veteran's claimed herbicide exposure from the NARA, it MUST THEN CONTACT THE VA PHYSICIAN'S ASSISTANT J.H.B., PA-C, (reported by the Veteran to be employed at a VA outpatient clinic in Washington state) WHO IN DECEMBER 2015 AUTHORED THE FOLLOWING TREATMENT NOTE: "[The Veteran] has been my patient here at the VA for about six months now, and he has asked me to provide a letter in reference to his disability request. He is a Vietnam-era veteran who served on an ocean-going Navy vessel, and was exposed to casualties who were medevac'ed to his ship, including casualties presumably saturated with Agent Orange. "He has tried to have the VA disable him for his diabetes, his congestive heart failure, and his other cardiomyopathy, due to the Agent Orange, but there has been direct link proven to that exposure. He has asked me to assert that it is 'as likely as not' a contributing reason for those conditions, as well as many others which may be down the road for him: and I can certainly make that assertion. "To sum up, if he helped with combat casualties brought to his ship, it is highly likely he was exposed to Agent Orange, and very possible that exposure contributed to his health conditions." The basis of J.H.B.'s opinion as to the Veteran's claimed herbicide exposure is presently unknown. The RO MUST therefore ask J.H.B. to respond to the following: a. What is the BASIS AND SPECIFIC SOURCE for your observation that the casualties the Veteran was in contact with during transport from Vietnam were "saturated" with herbicides such that it was "highly likely" the Veteran was also exposed? b. If the casualties above were "saturated" as you have expressed, please quantify the amount of herbicides the Veteran was exposed to during this experience, and would that amount be sufficient to have caused any of the disorders at issue. When providing your detailed opinion as to the claimed saturation of exposure and the development of the disorders, please also state the SPECIFIC SCIENTIFIC AND MEDICAL basis of your opinion in detail that it would have been "very possible" that such exposure would have caused the disorders. 5. Conduct any other development necessary to attempt to corroborate the Veteran's reports of herbicide agent exposure at Camp Pendleton, California. 6. AFTER ASSOCIATING THE ABOVE-REQUESTED RECORDS WITH THE FILE OR DOCUMENTING THEIR UNAVAILABILITY IN THE RECORD, schedule the Veteran for VA diabetes and prostate cancer examinations to obtain an opinion as to the nature and etiology of those disorders. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner should address the following: (a.) Whether prostate cancer was caused by any in service event, injury, disease, or disorder, or in any way originated during service. (b.) Whether prostate cancer was caused by in service exposure to contaminated water at Camp Lejeune, North Carolina. (c.) Whether prostate cancer was caused by claimed in-service exposure to herbicide agents. (d.) Whether diabetes was caused by any in service event, injury, disease, or disorder, or in any way originated during service. (e.) Whether diabetes was caused by in service exposure to contaminated water at Camp Lejeune, North Carolina. (f.) Whether diabetes was caused by claimed in service exposure to herbicide agents. The examiner's attention is drawn to the following: *SPR indicating that the Veteran served at Camp Lejeune and Camp Pendleton. VBMS Entry 10/26/2016, p. 9. *November 2012 statement from the Veteran that he believes contaminated water at Camp Lejeune caused or contributed to his diabetes. *November 2012 VA Form 9 on which the Veteran stated that believed diabetes was caused by food prepared at Camp Lejeune with contaminated water. *February 2013 DBQ stating that the Veteran had type II diabetes mellitus. *April 2015 Board hearing where the Veteran described his in-service duties at Camp Pendleton which he contends exposed him to herbicide agents. He stated that his duties involved processing the clothing, boots, and personal effects of individuals killed or missing in the Republic of Vietnam. The Veteran asserted that these materials had herbicide agents on them when he processed them. He stated that he wore no protective equipment when processing the materials. He also reported that he believed his disorders were caused by exposure to contaminated water at Camp Lejeune. *April 2015 VA treatment record where the Veteran's treating physician assistant stated that he had in-service Agent Orange exposure. VBMS Entry 5/2/2019. *April 2015 VA treatment record stating "Agent Orange exposure: yes." VBMS Entry 7/6/2021, p. 28. *July 2015 email message in which the Veteran reiterated his duties at Camp Pendleton which he contends exposed him to herbicide agents, and that he believed his disorders were also caused by contaminated water at Camp Lejeune. *June 2016 VA treatment record stating that "Prostate cancer has indeed been associated with and proven caused by exposure to Agent Orange." VBMS Entry 12/6/2016, p. 33. *December 2016 letter from the Veteran's VA physician stating that he had several diagnosed disorders, including diabetes. VBMS Entry 11/22/2019. *February 2018 VA treatment record stating that the Veteran had diabetes and was first diagnosed in 2010. VBMS Entry 7/5/2018, p. 42. *March 2018 VA treatment record indicating that the Veteran had been exposed to Agent Orange. VBMS Entry 5/31/2018, p. 22. *May 2018 VA treatment record stating a diagnosis of prostate cancer. VBMS Entry 5/31/2018, p. 2. *June 2018 Correspondence in which the Veteran again described in-service duties of processing effects from deceased Vietnam soldier. *April 2019 DBQ completed by a private physician stating that the Veteran had prostate cancer. *October 2020 VA medical opinion which states that "it is likely that [the Veteran] did come in contact with residue of Agent Orange on an occasional uniform and set of boots." The examiner is advised that an opinion based on the fact that a particular disorder is not one for which VA grants presumptive service connection for either contaminated water at Camp Lejeune or for exposure to herbicide agents is inadequate. The opinions must be based on this particular Veteran's exposure to contaminated water and possibly to herbicide agents and whether that caused his diagnosed disorders, regardless of whether the diagnosed disorders appear on the list of diseases for which VA grants presumptive service connection. 7. Conduct any other development necessary to adjudicate the issues on appeal, including obtaining an updated VA medical opinion on the issue of service connection for a heart disorder, if necessary. The RO adjudicators' attention is called to the ruling in Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders). Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Miller, Counsel The Board's decision is only binding on this case. This action is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.