Citation Nr: 21067225 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 19-04 253 DATE: November 3, 2021 ORDER New and material evidence has not been submitted to reopen a claim of entitlement to service connection for diabetes mellitus and the claim remains denied. New and material evidence has not been submitted to reopen a claim of entitlement to service connection for ischemic heart disease and the claim remains denied. FINDINGS OF FACT 1. A July 2013 rating decision denied entitlement to service connection for diabetes mellitus and ischemic heart disease; the Veteran did not timely appeal this denial, and no new and material evidence was submitted within the one-year appeal period following the issuance of that decision. 2. Evidence received since the July 2013 rating decision, while new, is cumulative or redundant of the evidence previously of record or does not relate to an unestablished fact necessary to substantiate the claims of service connection for diabetes mellitus and ischemic heart disease. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claim of service connection for diabetes mellitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (c). 2. New and material evidence has not been received to reopen the claim of service connection for ischemic heart disease. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (c). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the U.S. Navy from October 1961 to December 1964. This matter comes before the Board of Veterans Appeals' (Board) on appeal from an October 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The October 2015 rating decision continued to deny the claims of service connection for diabetes mellitus and ischemic heart disease because the evidence submitted was not new and material. In July 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. New and Material Evidence Generally, if a claim for service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. "New" evidence is defined as existing evidence not previously submitted to agency decisionmakers. "Material" evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The 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." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for diabetes mellitus. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for ischemic heart disease. The Veteran seeks service connection for diabetes mellitus and ischemic heart disease based on exposure to herbicide agents. VA regulations provide that, if a Veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for diabetes mellitus and ischemic heart disease. 38 C.F.R. § 3.309 (e). Veterans who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 are presumed to have been exposed to Agent Orange. 38 U.S.C. § 1116 (f). For purposes of applying the herbicide presumption, "service in Vietnam" includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation to Vietnam from January 9, 1962, to May 7, 1975. 38 U.S.C. § 1116 (a)(3); 38 C.F.R. §§ 3.307 (a)(6)(iii); 3.313(a). The Blue Water Navy Vietnam Veterans Act of 2019 extended the presumption of exposure to herbicide agents to those veterans who served offshore and within 12 nautical miles of the coast of the Republic of Vietnam between January 9, 1962 and May 7, 1975. See Blue Water Navy Vietnam Veterans Act of 2019, H.R. 299, 116th Cong. (2019) (codified at 38 U.S.C. § 1116A). These claims were originally denied in an unappealed July 2013 rating decision because there was no evidence of exposure to herbicides during military service. The Veteran did not perfect a timely appeal as to the rating decision, nor did he submit new and material evidence within one year; therefore, the rating decision became final. In July 2015, the Veteran submitted a request to reopen his claims of entitlement to service connection for diabetes mellitus and ischemic heart disease. An October 2015 rating decision denied the Veteran's request to reopen his claims after finding that new and material evidence had not been submitted. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. The evidence of record at the time of the July 2013 rating decision established that the Veteran had a disability of diabetes and ischemic heart disease. At that time, the record contained a formal finding of a lack of information required to corroborate exposure to herbicide agents. See June 2013 VA Memorandum. The service personnel records placed the Veteran aboard the USS Kitty Hawk from May 19, 1962, to December 10, 1964, more than 55 years ago. During this time period, the USS Kitty Hawk was placed within the official water of Vietnam on December 20, 1962, and again from May 19, 1964, to June 10, 1964. However, being within the official water of Vietnam does not confirm offshore service within 12 nautical miles of the coast of the Republic of Vietnam between January 9, 1962 and May 7, 1975. Therefore, the presumption of exposure to herbicide agents cannot be conceded. Moreover, the personnel records provided no conclusive evidence of in-country service by the Veteran. Furthermore, it was noted that the USS Kitty Hawk was not among the list of ships conceded for herbicide exposure. The evidence received since the July 2013 rating decision includes hearing testimony regarding the Veteran's service aboard the USS Kitty Hawk, ship logbooks, and another VA Memorandum confirming that exposure to herbicide agents cannot be conceded for the Veteran. Specifically, the VA Memorandum concluded that the evidence of record does not show the Veteran had duty or visitation in the Republic of Vietnam, or on its inland waterways, or nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. See November 2020 VA Memorandum. The Records Research Responses completed a comprehensive and detailed research on the Veteran's claimed exposure to herbicide agents while serving aboard the USS Kitty Hawk more than one-half a century ago. They determined the evidence does not document that the USS Kitty Hawk anchored/docked in a qualifying bay/harbor or traveled along an inland waterway in the Republic of Vietnam. Simply stated, the Veteran was not in 12 nautical miles of the coast of the Republic of Vietnam between January 9, 1962 and May 7, 1975. No new and material evidence has been submitted on this point. The Board also notes that the Veteran's DD Form 214 was corrected to include the National Defense Service Medal, Vietnam Service Medal, and the Armed Forces Expeditionary Medal (Quemoy-Matsu). See, e.g., March 2015 DD Form 215N. However, a Vietnam Service Medal is not considered definitive evidence of in-country service. See Haas v. Peake, 525 F.3d 1168, 1188 (Fed. Cir. 2008). These medals do not require the Board to presume or concede that the Veteran had Vietnam service for purposes of the presumption. This evidence, including lay statements, are simply a reiteration of previously considered general assertions of service connection. Even assuming their credibility for new and material evidence analysis, the evidence and statements are cumulative and cannot be considered new and material evidence. He is simply repeating the prior claim. In any event, it is important for the Veteran to understand that even if the Board found new and material evidence, that new evidence (as cited above), would provide a basis to deny the claim once again. As the Veteran has not fulfilled the threshold burden of submitting new and material evidence to reopen the finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Accordingly, the Veteran's petition to reopen the claims of service connection for diabetes mellitus and ischemic heart disease remains denied. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Cochran, Associate 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.