Citation Nr: 21062632 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 18-34 219A DATE: October 8, 2021 ORDER New and material evidence having been received to reopen the previously denied claim for service connection for diabetes mellitus, the petition to reopen is granted. New and material evidence having been received to reopen the previously denied claim for service connection for peripheral neuropathy of the right and left lower extremities, the petition to reopen is granted. Service connection for diabetes mellitus is granted. Service connection for peripheral neuropathy of the lower right extremity is granted. Service connection for peripheral neuropathy of the lower left extremity is granted. Service connection for peripheral neuropathy of the upper left extremity is granted. Service connection for hypertension, claimed as high blood pressure, is granted. Service connection for ischemic heart disease is denied. REMANDED Entitlement to service connection for peripheral neuropathy of the upper right extremity is remanded. Entitlement to service connection for an eye disability is remanded. FINDINGS OF FACT 1. The claim for service connection for diabetes mellitus and peripheral neuropathy of the right and left lower extremities was denied in a July 2011 rating decision. The Veteran did not file an appeal to this decision. 2. The evidence received since the July 2011 rating decision is not cumulative or redundant of the evidence considered in that prior decision and raises a reasonable possibility of substantiating the claims of entitlement to service connection for diabetes mellitus and peripheral neuropathy of the right and left lower extremities. 3. The Veteran's diabetes mellitus is related to his service. 4. The Veteran's peripheral neuropathy of the left upper extremity, peripheral neuropathy of the bilateral lower extremities, and hypertension are proximately due to his diabetes mellitus. 5. The Veteran has not been diagnosed with ischemic heart disease. CONCLUSIONS OF LAW 1. The July 2011 rating decision that previously considered and denied service connection for diabetes mellitus and peripheral neuropathy of the right and left lower extremities is a final and binding determination based on the evidence then of record. 38 U.S.C. § 7104 (b); 38 C.F.R. §§ 3.104 (a), 3.160(d), 20.1103. 2. There is new and material evidence since that decision to reopen the claims for service connection for diabetes mellitus and peripheral neuropathy of the right and left lower extremities. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria are met for service connection for diabetes mellitus. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria are met for service connection for peripheral neuropathy of the upper left extremity, peripheral neuropathy of the bilateral lower extremities, and hypertension. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria are not met for service connection for ischemic heart disease. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1964 to April 1968. The Board notes that in November 2018, the Veteran filed what appears to be a claim for reimbursement of unauthorized medical expenses incurred for a non-VA hospital stay in 2018. That claim is not currently before the Board, however, such is referred to the RO for further development. New & Material Evidence To reopen a claim that has been denied by a final decision, the claimant must present new and material evidence with respect to the claim. 38 U.S.C. § 5108. "New evidence" means existing evidence not previously submitted to VA. 38 C.F.R. § 3.156 (a). "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. Id. 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, and it must raise a reasonable possibility of substantiating the claim. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the "credibility" of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156 (a) creates a low threshold for finding new and material evidence, and it views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). Evidence "raises a reasonable possibility of substantiating the claim" if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. See id. at 120-23. 1. New and material evidence having been received to reopen the previously denied claim for service connection for diabetes mellitus, the petition to reopen is granted. 2. New and material evidence having been received to reopen the previously denied claim for service connection for peripheral neuropathy of the right and left lower extremities, the petition to reopen is granted. The claims for service connection for diabetes mellitus and peripheral neuropathy of the bilateral lower extremities was previously denied in a July 2011 rating decision. At the time of that previous denial, the claim was denied because the evidence did not show that the Veteran had service in Vietnam pursuant to VA guidelines. Therefore, he did not meet the criteria for the presumption of herbicide exposure as outlined in 38 C.F.R. § 3.307, 3.309. However, since that final denial, the official list of ships that served in the inland waterways of Vietnam was updated by the VA in July 2019. That update includes the ship upon which the Veteran served. This update lists the Veteran's ship, USS New (DD-818), as having operated on Song Bu Lu River in October 1967. The Veteran's service personnel records reflect that he was assigned to this ship in October 1967. Therefore, this evidence is new and material, and the claims are reopened. 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, 1131, 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). 3. Service connection for diabetes mellitus is granted The Veteran maintains that his diabetes, mellitus type II is related to his in-service Agent Orange exposure. Section 1116 of title 38, United States Code, provides that a veteran who "served in the Republic of Vietnam" during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be considered exposed to an herbicide agent, and that exposure in turn will be presumed to be the cause of certain enumerated diseases, including diabetes mellitus, type II. VA had historically interpreted the statutory phrase "served in the Republic of Vietnam" as incorporating a requirement that the Veteran served on land or inland waterways. See Haas v. Peake, 525 F.3d 1168, 1180-83 (Fed. Cir. 2008). In Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en banc), the U.S. Court of Appeals for the Federal Circuit held that veterans who served in the 12 nautical mile territorial sea of the Republic of Vietnam are entitled to presumptive service connection under 38 U.S.C. § 1116, so long as they meet the section's other requirements. A review of the record shows that the Veteran has a current diagnosis of diabetes mellitus and has continued to receive treatment for such. Diabetes mellitus, type II is a disease enumerated for purposes of presumptive service connection due to exposure to herbicide agents. 38 C.F.R. § 3.309 (e). Thus, at issue in this case is whether the Veteran has qualifying service "in the Republic of Vietnam" as defined by regulation. As stated above, the new evidence demonstrates that the Veteran served aboard the USS NEW (DD-818) in October 1967, when that ship was known to have temporarily operated on the inland waterways of Vietnam. Accordingly, the Veteran is entitled to the presumption of having been exposed to herbicides, and as such, the claim for service connection for diabetes mellitus is granted on this presumptive basis. 4. Service connection for peripheral neuropathy of the lower right extremity is granted. 5. Service connection for peripheral neuropathy of the lower left extremity is granted. 6. Service connection for peripheral neuropathy of the upper left extremity is granted. 7. Service connection for hypertension, claimed as high blood pressure, is granted. The Veteran has been diagnosed with peripheral neuropathy of the upper left extremity and bilateral lower extremities, as well as hypertension, as secondary to his diabetes mellitus. As the Veteran was granted service connection for diabetes mellitus above, these claims are granted on a secondary basis. 8. Service connection for ischemic heart disease is denied. The evidence does not reflect a diagnosis of ischemic heart disease. Specifically, a review of the VA treatment records does not demonstrate such a diagnosis, and the Veteran has not provided any information to support the contention that he has been diagnosed with this condition. At his July 2021 hearing before the Board, the Veteran also indicated that he wasn't sure if he had been diagnosed with a heart disability, to include ischemic heart disease. Accordingly, as there is no evidence of a current diagnosis of ischemic heart disease, the claim must be denied REASONS FOR REMAND 1. Entitlement to service connection for peripheral neuropathy of the upper right extremity is remanded. 2. Entitlement to service connection for an eye disability is remanded. In light of the above grant of service connection for diabetes mellitus, the Board finds that a remand is necessary to determine whether the Veteran suffers from peripheral neuropathy of the upper right extremity and a diabetic eye disability. In that regard, on November 2015 VA examination, the VA examiner specifically concluded that the Veteran did not suffer from diabetic peripheral neuropathy of the upper right extremity. However, the Veteran stated at his 2021 hearing before the Board that he experienced a feeling of numbness in both arms. Given the time period that has lapsed since the 2015 VA examination, a new VA examination should be obtained as to this question. Next, the Veteran contends that he suffers from an eye disability that he has been told is related to his diabetes mellitus. While the November 2015 VA examiner concluded that his macular degeneration of the eyes did not cause his diabetes mellitus, an opinion as to whether his diabetes mellitus has caused or aggravated his eye disabilities, diagnosed as macular degeneration, dry eyes, cataracts, and blepharitis, should be obtained. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the etiology of his peripheral neuropathy of the upper right extremity. The examiner should address the following question: Does the Veteran suffer from diabetic neuropathy of the upper right extremity? The examiner must provide a complete rationale for any opinion expressed. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence, or information would be useful in rendering an opinion. 2. Schedule the Veteran for a VA examination to determine the etiology of his eye disability. a) Are any of the Veteran's diagnosed eye disabilities at least as likely as not related to in-service exposure to herbicide agents, or are otherwise related to his active service? b) Are any of his eye disabilities either caused or aggravated (beyond the natural progression of the diseases) by his service-connected diabetes mellitus? The examiner should provide an opinion as to both the question of causation AND aggravation. The examiner must provide a complete rationale for any opinion expressed. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence, or information would be useful in rendering an opinion. A. J. Spector Veterans Law Judge Board of Veterans' Appeals R. Erdheim, Attorney for the Board Department of Veterans Affairs 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.