Citation Nr: 21068156 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 20-12 799 DATE: November 9, 2021 ORDER Reopening of entitlement to service connection for diabetes mellitus type II is granted. Entitlement to service connection for diabetes mellitus type II is granted on a presumptive basis based on herbicide agent exposure. FINDINGS OF FACT 1. New and material evidence has been associated with the claims file since the prior final denial of entitlement to service connection for diabetes mellitus type II in May 2014. 2. The Veteran was at least as likely as not exposed to herbicide agents while stationed in Thailand and the probative evidence weighs in favor of finding that the Veteran's diabetes mellitus type II manifested to a compensable degree after separation. CONCLUSIONS OF LAW 1. The criteria for reopening of entitlement to service connection for diabetes mellitus type II have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 2. The criteria for entitlement to service connection for diabetes mellitus type II have been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had qualifying service from September 1965 to June 1969. In October 2021, the Veteran testified at a Board Virtual Hearing before the undersigned Veterans Law Judge. 1. Reopening of entitlement to service connection for diabetes mellitus type II In general, agency of original jurisdiction (AOJ) decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.200. However, if new and material evidence is presented or secured with respect to a disallowed claim, the Board shall reopen the claim and review its former disposition. 38 U.S.C. § 5108; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). "New" evidence is that which is not cumulative or redundant of that previously of record; "material" evidence is that which is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). The prior final denial for this condition was in a May 2014 Rating Decision, in which the AOJ found no in-service exposure to herbicide agents and no other etiological relationship between the Veteran's service and his diabetes mellitus type II. A May 2014 Notification Letter containing appeal rights was mailed, but the Veteran did not timely perfect an appeal and the May 2014 Rating Decision became final. On December 6, 2016, VA received an Intent to File for a compensation claim and then, on July 24, 2017, received a VA Form 21-526EZ with an attached Statement clarifying that the compensation claim was for entitlement to service connection for diabetes mellitus type II (which, based on the prior final denial, was really a claim to reopen that claim). In an October 2017 Rating Decision, the AOJ denied reopening of the claim and, in a January 2018 Rating Decision, the AOJ granted reopening of the claim but denied service connection; the Veteran then timely appealed that denial (see April 2018 Notice of Disagreement; March 2020 VA Form 9). Although the AOJ reopened the claim, the Board is not bound by that finding and must make its own determination, which it has done herein. Crucially, the Board has determined that new and material evidence has been added to the claims file since the prior final denial in May 2014. Since the May 2014 Rating Decision, several pieces of lay and medical evidence have been associated with the claims file; however, the Board highlights the April 2018 Notice of Disagreement, in which the Veteran explained how his in-service duties required him to be in frequent and close proximity to the perimeter of his Thai base. Crucially, this evidence is new (associated with the claims file after the prior final denial) and material (sufficient, by itself or with previous evidence of record, to raise a possibility of substantiating the claim). Thus, reopening is granted. 2. Entitlement to service connection for diabetes mellitus type II Presumptive service connection may be warranted for certain chronic diseases listed at 38 C.F.R. § 3.309(a), including diabetes mellitus, if manifest to at least a compensable degree within one year from separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Additionally, if a veteran was exposed to herbicide agents during service, then presumptive service connection may also be established for certain conditions, including diabetes mellitus type II, that become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The Veteran's inability to prevail on a presumptive basis does not foreclose his opportunity to prevail on a direct or secondary basis. Combee v. Brown, 34 F.3d 1039, 1043-33 (Fed. Cir. 1994). Direct service connection may be warranted if the evidence shows: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Although a competent medical opinion is generally required to establish etiology, competent and credible lay evidence of chronicity and continuity of symptomology may also establish etiology. 38 C.F.R. § 3.303(b); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Secondary service connection may be warranted for a current disability that is either proximately caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a), (b); Allen v. Brown, 7 Vet. App. 439 (1995). A "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). Ward v. Wilkie, 31 Vet. App. 233 (2019). The Veteran generally contends that his diabetes mellitus type II was caused by in-service exposure to herbicide agents at Nakhon Phanom Royal Thai Air Force Base (RTAFB). See March 2006 Statement; September 2017 Correspondence; September 2017 VA Form 21-526EZ; April 2018 Notice of Disagreement; April 2020 Statement. Crucially, Military Personnel Records confirm that the Veteran served in Thailand from June 1968 to June 1969, including at Nakhon Phanom RTAFB. VA currently concedes in-service herbicide exposure for Air Force service personnel who served at specially enumerated Air Force bases in the Kingdom of Thailand with a military occupational specialty (MOS) with duties placing him or her at or near the air base perimeter. Specifically, VA will concede herbicide exposure if an Air Force Veteran served on one of the enumerated air bases as an Air Force (1) security policeman, (2) security patrol dog handler, (3) member of a security police squadron, or (4) otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. See August 2015 C&P Service Bulletin. Service treatment records (STR's) do not indicate any abnormalities (including complaints, treatment, or diagnoses) related to diabetes mellitus type II upon entrance to, during, or upon separation from service. The Veteran's DD Form 214 listed his MOS as "operator" and he described his duties as including frequently being at the perimeter for walks and also for administering medications and vaccines and performing well checks on locals when asked to assist the medical staff with their duties. See March 2006 Statement; April 2018 Notice of Disagreement. During the October 2021 Board Hearing, the Veteran further contended that he was exposed to herbicide agents during his in-service duties in Thailand. (Continued on the next page) Crucially, the Board finds that the Veteran was at least as likely as not exposed to herbicide agents while stationed at Nakhon Phanom RTAFB and that his diabetes mellitus type II manifested to a compensable degree after separation. Although there is no objective documentation of the Veteran's presence along the perimeter, the Board finds the Veteran's contention of frequently being along the perimeter to be highly probative because his description of his activities along the perimeter is consistent with the circumstances of his service, the Veteran is competent to report his lay-observable activity of walking and its lay-observable proximity to the perimeter fence, and the Veteran's contentions have remained longitudinally consistent throughout the record. Thus, the Board concedes the Veteran's presumed exposure to herbicide agents during service. Further, his diabetes mellitus type II manifested to a compensable degree after separation, evidenced by compensable manifestations assessed as: (a) requiring restricted diet and oral hypoglycemic agents and having associated conditions of diabetic peripheral neuropathy, hypertension, and renal disease (see June 2017 private Disability Benefits Questionnaire for diabetes mellitus by provider NJB); and (b) requiring oral hypoglycemic agents, having associated erectile dysfunction, aggravating the Veteran's hypertension condition, and functional loss of feeling too tired and weak to work (see October 2017 VA examination for diabetes mellitus). 38 C.F.R. § 4.119, Diagnostic Code 7913. Thus, presumptive service connection due to herbicide-agent exposure is warranted and the Board grants the claim. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Daus, 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.