Citation Nr: 21070691 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 19-27 837 DATE: November 24, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for coronary artery disease (CAD) is granted. New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for diabetes mellitus is granted. New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for left upper extremity neuropathy is granted. New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for right upper extremity neuropathy is granted. New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for left lower extremity neuropathy is granted. New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for right lower extremity neuropathy is granted. REMANDED Entitlement to service connection for coronary artery disease (CAD), to include as due to chemical exposure, is remanded. Entitlement to service connection for diabetes mellitus, to include as due to chemical exposure, is remanded. Entitlement to service connection for left upper extremity neuropathy, to include as due to chemical exposure, is remanded. Entitlement to service connection for right upper extremity neuropathy, to include as due to chemical exposure, is remanded. Entitlement to service connection for left lower extremity neuropathy, to include as due to chemical exposure, is remanded. Entitlement to service connection for right lower extremity neuropathy, to include as due to chemical exposure, is remanded. FINDINGS OF FACT 1. In an unappealed rating decision issued in October 2013, the Agency of Original Jurisdiction (AOJ) denied service connection for CAD, diabetes mellitus, left upper extremity neuropathy, right upper extremity neuropathy, left lower extremity neuropathy and right lower extremity neuropathy. 2. Evidence associated with the record since the final denial in October 2013 is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claims of entitlement to service connection for CAD, diabetes mellitus, left upper extremity neuropathy, right upper extremity neuropathy, left lower extremity neuropathy and right lower extremity neuropathy. CONCLUSIONS OF LAW 1. The October 2013 rating decision that denied service connection for CAD, diabetes mellitus, left upper extremity neuropathy, right upper extremity neuropathy, left lower extremity neuropathy and right lower extremity neuropathy is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 19.52, 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for CAD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence has been received to reopen the claim of entitlement to service connection for diabetes mellitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. New and material evidence has been received to reopen the claim of entitlement to service connection for left upper extremity neuropathy. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. New and material evidence has been received to reopen the claim of entitlement to service connection for right upper extremity neuropathy. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 6. New and material evidence has been received to reopen the claim of entitlement to service connection for left lower extremity neuropathy. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 7. New and material evidence has been received to reopen the claim of entitlement to service connection for right lower extremity neuropathy. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from April 1959 to May 1962. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, declined to reopen the claims for service connection for CAD, diabetes mellitus, left upper extremity neuropathy, right upper extremity neuropathy, left lower extremity neuropathy and right lower extremity neuropathy. The Veteran's notice of disagreement (NOD) was received in July 2018. The RO issued the statement of the case (SOC) in August 2019, and the Veteran's VA Form 9, substantive appeal was received in September 2019. In July 2021, the Veteran testified at a Board virtual hearing before the undersigned Veterans Law Judge. A transcript of the testimony is associated with the claims file. NEW AND MATERIAL EVIDENCE Generally, a claim which has been denied in an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been previously disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received to reopen the claim of service connection for CAD. 2. Whether new and material evidence has been received to reopen the claim of service connection for diabetes mellitus. 3. Whether new and material evidence has been received to reopen the claim of service connection for left upper extremity neuropathy. 4. Whether new and material evidence has been received to reopen the claim of service connection for right upper extremity neuropathy. 5. Whether new and material evidence has been received to reopen the claim of service connection for left lower extremity neuropathy. 6. Whether new and material evidence has been received to reopen the claim of service connection for right lower extremity neuropathy. By way of background, VA received the Veteran's original claims for service connection for CAD, diabetes mellitus, left upper extremity neuropathy, right upper extremity neuropathy, left lower extremity neuropathy and right lower extremity neuropathy in July 2012 and September 2012. In an October 2013 rating decision, the AOJ denied the claims for service connection for CAD, diabetes mellitus, left upper extremity neuropathy, right upper extremity neuropathy, left lower extremity neuropathy and right lower extremity neuropathy, to include as due to herbicide exposure. The RO denied service connection for CAD, diabetes mellitus, left upper extremity neuropathy, right upper extremity neuropathy, left lower extremity neuropathy and right lower extremity neuropathy based on findings of a lack of evidence showing an event, disease or injury in service and no link between the disabilities and active service. In addition, with regard to CAD, the AOJ noted that the Veteran did not serve in Vietnam and thus was not entitled to service connection for CAD on a presumption bases as due to herbicide exposure. The Veteran received notification of the rating decision and his appellate rights in October 2013. The Veteran did not submit a Notice of Disagreement (NOD) or new and material evidence within the one-year appeal period following notice of the August 2013 rating decision. Therefore, the October 2013 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 19.52, 20.1103. The evidence received after the October 2013 rating decision includes the Veteran's testimony at a Board hearing in February 2021 related to a separate claim of service connection for a skin disorder that was subsequently denied in a June 2021 Board decision; and, the July 2021 virtual Board hearing testimony as well as lay statements from the Veteran dated in October 2017 and July 2018. During the Board hearings and in lay statements dated in October 2017 and July 2018, the Veteran asserted that, while stationed in Korea from March 1960 to March 1961, he was tasked with spraying Agent Orange and various other chemicals along the perimeter of the compound approximately once a month and without wearing any protection. The Veteran stated that he believes his CAD, diabetes mellitus, left upper extremity neuropathy, right upper extremity neuropathy, left lower extremity neuropathy and right lower extremity neuropathy are all due to exposure to these herbicide agents and chemicals. This evidence did not exist at the time of the October 2013 rating decision. For purposes of determining whether the testimony at the July 2021 virtual Board hearing and the Veteran's lay statements dated in October 2017 and July 2018 are new and material, the credibility of the evidence is presumed. Overall, the evidence is not redundant or duplicative, and raises a reasonable possibility of substantiating the claims of entitlement to service connection for CAD, diabetes mellitus, left upper extremity neuropathy, right upper extremity neuropathy, left lower extremity neuropathy and right lower extremity neuropathy. Therefore, new and material evidence has been received, and the claims are reopened. REASONS FOR REMAND 1. Entitlement to service connection for coronary artery disease (CAD), to include as due to chemical exposure. 2. Entitlement to service connection for diabetes mellitus, to include as due to chemical exposure. 3. Entitlement to service connection for left upper extremity neuropathy, to include as due to chemical exposure. 4. Entitlement to service connection for right upper extremity neuropathy, to include as due to chemical exposure. 5. Entitlement to service connection for left lower extremity neuropathy, to include as due to chemical exposure. 6. Entitlement to service connection for right lower extremity neuropathy, to include as due to chemical exposure. The Veteran contends that his CAD, diabetes mellitus, left upper extremity neuropathy, right upper extremity neuropathy, left lower extremity neuropathy and right lower extremity neuropathy were caused by exposure to Agent Orange and other hazardous chemicals during service in Korea along the demilitarized zone (DMZ) border and stateside in Fort Chaffee for training. See February 2021 and July 2021 Hearing Transcripts. Specifically, the Veteran testified that, while stationed in Korea from March 1960 to March 1961, he was tasked with spraying Agent Orange and various other chemicals along the perimeter of the compound to clear foliage approximately once a month and without wearing any protection. He testified that some of the barrels were white with orange trimming and a black skull and cross bone which he asserts indicated that they contained Agent Orange. The Veteran also asserts that Agent Orange was stored and used at Fort Chaffee while he was stationed there for two weeks in April 1959. The Veteran has also asserted that his left upper extremity neuropathy, right upper extremity neuropathy, left lower extremity neuropathy and right lower extremity neuropathy are secondary to his diabetes mellitus. See July 2018 NOD; see also September 2021 Appellate Brief. A veteran who, during active military, naval, or air service, served between September 1, 1967, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicide agents are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iv). Under the Blue Water Navy Vietnam Veterans Act of 2019, the relevant period of service was expanded to September 1, 1967 through August 31, 1971. See 38 U.S.C. § 1116B; see also Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23, § 3,133 Stat. 966, 970 (eff. Jan. 1, 2020). In addition, the language was changed which deleted "in a unit that, as determined by the Department of Defense." If a veteran is presumed to have been exposed to a tactical herbicide agent, then certain diseases, including CAD and diabetes mellitus, type II, will be presumed to be due to the in-service herbicide exposure. Likewise, the presumption of service connection for herbicide-related diseases such as CAD and diabetes for example, may also apply if exposure to herbicide agents is shown on a factual basis. In essence, if the Veteran did not serve at the Korean DMZ in a particular unit during the required timeframe, actual exposure to herbicide agents must be verified through appropriate service department or other sources in order for the presumption of service connection for herbicide-related diseases under 38 C.F.R. § 3.309(e) to be applicable. Exposure to herbicide agents is not presumed in such instances, but the exposure to one of the herbicides listed at 38 C.F.R. § 3.307(a)(6)(i) can still be established if shown by the facts of the case. Once exposure to herbicide agents has been established by the facts of the case, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable. Additionally, even if service connection is not warranted under one of the presumptive regulations, this does not preclude a claimant from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043(Fed. Cir. 1994). The rationale employed in Combee also applies to claims based on exposure to herbicide agents. Brock v. Brown, 10 Vet. App. 155 (1997). Here, the Veteran served in Korea from March 1960 to March 1961, years before the relevant period of service of September 1, 1967 through August 31, 1971. As there is no presumption of herbicide agent exposure for veterans who served in or near the Korean DMZ before September 1, 1967, the central question is whether the evidence of record establishes on a factual basis that the Veteran was exposed to herbicide agents and/or other hazardous chemicals while serving in Korea or Fort Chaffee. As noted in a June 2021 decision, the Board made a specific finding that the Veteran may not be presumed to have been exposed to tactical herbicide agents such as Agent Orange during his Korean, or other, service; and, that the evidence of record does not otherwise support a finding of in-service herbicide exposure on a facts found (direct) basis. There is no additional evidence of record to support a contradictory finding in this regard. Accordingly, there is no reason to disturb the Board's June 2021 finding and exposure to tactical herbicides during service is not shown. Nevertheless, the Veteran is competent to report that he sprayed chemicals around the base perimeter to clear foliage approximately once per month, as part of his duties in Korea. While it has already been determined that Agent Orange was not used in Korea during the time period when the Veteran was stationed there, the question remains as to whether commercial herbicides claimed to have been used by the Veteran during this time period as likely as not resulted in his diabetes, CAD or peripheral neuropathy. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a lay person is competent to report on that of which he or she has personal knowledge). VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). The Veteran's VA treatment records show that he has been diagnosed with diabetes mellitus. See e.g. May 2019 VA treatment note. Private treatment records indicate that the Veteran has been diagnosed with coronary artery disease and atrial fibrillation. See private treatment records dated in August 2012, December 2017 and August 2018. VA and private treatment records indicate that the Veteran has decreased sensation in his bilateral upper and lower extremities and has been prescribed medication for "neuropathy." See August 2012 private treatment note and VA treatment records dated in April 2013 and February 2018. At the February 2021 and July 2021 Board hearings and in various lay statements, the Veteran has asserted that while stationed in Korea from March 1960 to March 1961, he was tasked with spraying various chemicals along the perimeter of the compound to clear foliage approximately once a month and without wearing any protection. Thus, there are current disabilities, asserted exposure to chemicals, and a question of whether the current disabilities may be associated with the in-service event. Remand is therefore warranted for examinations. One of the Veteran's treating physicians provided a nexus opinion that relates the Veteran's current disabilities to in-service Agent Orange exposure. See private treatment note dated in December 2017. However, the opinion relies on the inaccurate factual premise that the Veteran was exposed to Agent Orange during service, which, as noted above, has not been shown. See also, Reonal v. Brown, 5 Vet. App. 458, 460-61(1993) (a valid opinion needs to be based on accurate facts). In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and likely etiology of any current cardiac disability, including, but not limited to coronary artery disease and atrial fibrillation. All necessary tests should be performed. The examiner must review the claims file, including the service treatment records and post-service treatment records, in conjunction with the examination. After the record review and examination of the Veteran, the VA examiner is asked to respond to the following inquiry for each diagnosed cardiac disability: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's cardiac disability was either incurred in, or otherwise related to, the Veteran's active duty service to include the reported in-service chemical (commercial herbicide, but not tactical herbicide) exposure? The examiner must consider the Veteran's lay statements and support any opinion rendered with a detailed rationale. In this regard, the examiner's opinion should be limited to whether non-tactical herbicides are linked to the Veteran's current cardiac disability, as the Board has already determined that the Veteran was not exposed to Agent Orange or other tactical herbicides during service. If the examiner cannot provide the above opinion(s), the examiner is advised that he/she must explain why. The term "at least as likely as not" does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of a certain conclusion as it is to find against it. 2. Schedule the Veteran for a VA examination to determine the nature and likely etiology of the Veteran's diabetes mellitus. All necessary tests should be performed. The examiner must review the claims file, including the service treatment records and post-service treatment records, in conjunction with the examination. After the record review and examination of the Veteran, the VA examiner is asked to respond to the following inquiry: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's diabetes mellitus was either incurred in, or otherwise related to, the Veteran's active duty service to include the reported in-service chemical (commercial herbicide, but not tactical herbicide) exposure? The examiner must consider the Veteran's lay statements and support any opinion rendered with a detailed rationale. In this regard, the examiner's opinion should be limited to whether non-tactical herbicides are linked to the Veteran's current cardiac disability, as the Board has already determined that the Veteran was not exposed to Agent Orange or other tactical herbicides during service. If the examiner cannot provide the above opinion, the examiner is advised that he/she must explain why. The term "at least as likely as not" does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of a certain conclusion as it is to find against it. 3. Schedule the Veteran for a VA examination to determine whether he has a current peripheral nerve disability affecting any of his upper or lower extremities. All indicated tests and studies should be performed and findings reported in detail. The claims folder must be made available to the examiner for review prior to examination. The examiner should identify all peripheral nerve disabilities that have existed since the date of the claim. Then, the clinician should indicate whether it is at least as likely as not (at least a 50 percent probability) that any peripheral nerve disability is related to or had its onset during the Veteran's active service, to include his reported in-service chemical (commercial herbicide, but not tactical herbicide) exposure? The examiner must consider the Veteran's lay statements and support any opinion rendered with a detailed rationale. In this regard, the examiner's opinion should be limited to whether non-tactical herbicides are linked to the Veteran's current cardiac disability, as the Board has already determined that the Veteran was not exposed to Agent Orange or other tactical herbicides during service. If the examiner cannot provide the above opinions, the examiner is advised that he/she must explain why. The term "at least as likely as not" does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of a certain conclusion as it is to find against it. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Modesto, Victor 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.