Citation Nr: 21064603 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 18-45 336 DATE: October 20, 2021 ORDER The issue of entitlement to service connection for hyperlipidemia is dismissed. The claim of entitlement to service connection for type II diabetes is reopened, and to this extent only the appeal is granted. The claim of entitlement to service connection for hypertension is reopened, and to this extent only the appeal is granted. REMANDED Entitlement to service connection for type II diabetes is remanded. Entitlement to service connection for a prostate disability, to include prostate cancer, is remanded. Entitlement to service connection for hypertension, to include as secondary to type II diabetes, is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to type II diabetes or a prostate disability, is remanded. Entitlement to service connection for right upper extremity peripheral neuropathy, to include as secondary to type II diabetes, is remanded. Entitlement to service connection for left upper extremity peripheral neuropathy, to include as secondary to type II diabetes, is remanded. Entitlement to service connection for right lower extremity peripheral neuropathy, to include as secondary to type II diabetes, is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy, to include as secondary to type II diabetes, is remanded. Entitlement to service connection for a respiratory disability, to include as secondary to type II diabetes, is remanded. FINDINGS OF FACT 1. Prior to the promulgation of a Board decision, the Veteran and his attorney withdrew on the record his appeal of the issue of entitlement to service connection for hyperlipidemia. 2. The claims for service connection for type II diabetes and hypertension were previously denied in a December 2010 rating decision, the Veteran did not appeal the decision, and no new evidence pertinent to the claim was received by VA within one year from the date that notice of the decision was mailed to the Veteran. 3. The additional evidence received since the final December 2010 rating decision relates to an unestablished fact necessary to substantiate the claims. CONCLUSIONS OF LAW 1. The criteria to dismiss the issue of entitlement to service connection for hyperlipidemia are met. 38 U.S.C. § 7104(a); § 19.55. 2. The additional evidence presented since the December 2010 rating decision is new and material, and the claim for service connection for type II diabetes is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The additional evidence presented since the December 2010 rating decision is new and material, and the claim for service connection for hypertension is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1967 to December 1969. This appeal is before the Board of Veterans' Appeals (Board) from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office. In July 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript is included in the claims file. 1. The issue of entitlement to service connection for hyperlipidemia is dismissed. 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. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. During the July 2021 Board hearing, the Veteran and his attorney withdrew the appeal of the issue of service connection for hyperlipidemia on the basis that it is not a disability for which service connection may be granted. Hence, there remain no allegations of errors of fact or law for appellate consideration of this issue. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. 38 U.S.C. § 7104(a). 2. The claim of entitlement to service connection for type II diabetes is reopened, and to this extent only the appeal is granted. 3. The claim of entitlement to service connection for hypertension is reopened, and to this extent only the appeal is granted. Pertinent procedural regulations provide that "[n]othing in [38 U.S.C. § 5103A] shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in [38 U.S.C. § 5108]." 38 U.S.C. § 5103A(f). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). New evidence means existing evidence not previously submitted to VA. 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 agency of original jurisdiction (AOJ) most recently denied service connection for type II diabetes and hypertension in a December 2010 rating decision. This decision was not appealed, and no new evidence pertinent to the claim was received by VA within one year from the date that the AOJ mailed notice of the decision to the Veteran. Furthermore, VA has not received or associated with the claims file any relevant official service department records that existed and had not been associated with the claims file at the time of that decision. Therefore, that decision is final. 38 U.S.C. § 7105 (2010); 38 C.F.R. §§ 3.104, 19.20, 19.52, 20.1103; see also 38 C.F.R. § 3.156(b), (c). The bases of the prior final denials were the AOJ's findings that the evidence did not show a nexus between the claimed disabilities and the Veteran's service. Evidence obtained since the December 2010 rating decision includes evidence that the Veteran served on a ship in the waters of the Republic of Vietnam from October 1968 to December 1969, and was therefore potentially exposed to Agent Orange during his period of service, and medical evidence suggesting a potential link between the Veteran's claimed disabilities and Agent Orange exposure. Without addressing the merits of this evidence, the Board finds that it addresses the issue of whether any current type II diabetes and hypertension is related to service. See Justus v. Principi, 3 Vet. App. 510, 512-513 (1992); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Shade v. Shinseki, 24 Vet. App. 110 (2010). Thus, this evidence is both "new," as it has not previously been considered by VA, and "material," as it raises a reasonable possibility of substantiating the Veteran's service connection claim. Therefore, new and material evidence has been submitted to reopen the Veteran's claims for service connection for type II diabetes and hypertension. REASONS FOR REMAND If a veteran was exposed to an herbicide agent (to include Agent Orange) during active service, certain diseases, including type II diabetes and prostate cancer, shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied 38 C.F.R. § 3.309(e). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). Notwithstanding the presumption, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. § 1113(b) and 1116 and 38 C.F.R. § 3.303. Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served offshore of the Republic of Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C. §§ 1116, 1116A; and 38 C.F.R. § 3.307(a)(6)(iii). A location as being offshore of Vietnam if the location is not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting several geographical points. 38 U.S.C. § 1116A(d). Entitlement to service connection for type II diabetes, a prostate disability, to include prostate cancer, and hypertension, to include as secondary to type II diabetes, are remanded. VA treatment records reflect diagnoses of type II diabetes and hypertension, and June 2021 records and a July 2021 letter from the Veteran's private physician reflect a diagnosis of adenocarcinoma of the prostate. As reflected in his July 2021 testimony before the Board, the Veteran asserts that these disorders are the result of Agent Orange exposure during his period of service and, alternatively, that the Veteran's hypertension is secondary to his type II diabetes. The Veteran's service personnel records and evidence submitted by the Veteran, as well as a November 2010 U.S. Army and Joint Service Records Research Center (JSRRC) report and November 2010 VA Memorandum produced by the AOJ, indicate that the Veteran served aboard the USS Saint Paul (CA-73) from October 1968 to December 1969, which included service in the official waters of Vietnam. Given this, the Veteran's service connection claims must be remanded for the AOJ to determine whether the Veteran served offshore of Vietnam (within 12 nautical miles) in accordance with the provisions of 38 U.S.C. § 1116A(d), to include during his service on the USS Saint Paul from October 1968 to December 1969. Entitlement to service connection for erectile dysfunction, to include as secondary to type II diabetes or a prostate disability; right and left upper and lower extremity peripheral neuropathy, to include as secondary to type II diabetes; and a respiratory disability, to include as secondary to type II diabetes, are remanded. As reflected in his January 2014 claim, July 2021 testimony, and in evidence submitted by the Veteran in support of his claim, the Veteran contends that erectile dysfunction is secondary to type II diabetes and/or a prostate disability, and that peripheral neuropathy of the upper and lower extremities and a respiratory disability are secondary to his type II diabetes. VA and private treatment records reflect diagnoses of chronic sinusitis and erectile dysfunction; also, the Veteran testified to having symptoms of these claimed disabilities during his July 2021 Board hearing. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994). As these claims may depend on the Veteran's service connection claims for diabetes and a prostate disability, they are intertwined with those issues and must be remanded as well. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Determine whether the Veteran served offshore of Vietnam (within 12 nautical miles) in accordance with the provisions of 38 U.S.C. § 1116A(d), to include during his service on the USS Saint Paul from October 1968 to December 1969. 2. After completing the above and any other necessary development, to include the provisions of any necessary VA examinations and/or opinions, readjudicate the issues remaining on appeal. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Andrew Mack, 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.