Citation Nr: 21070725 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 16-52 070 DATE: November 24, 2021 ORDER New and material evidence having been received, the claim to reopen the previously denied claim for entitlement to service connection for lumbar spine degenerative disc disease is reopened, and the appeal is granted. Entitlement to service connection for lumbar spine degenerative disc disease with spondylolisthesis and spondylosis (claimed as lower back condition) is granted. Entitlement to service connection for diabetes mellitus type II associated with herbicide exposure is granted. FINDINGS OF FACT 1. New and material evidence having been received, the claim to reopen the previously denied claim for entitlement to service connection for lumbar spine degenerative disc disease is reopened. 2. Resolving all doubt in the Veteran's favor, the Board finds that the Veteran's lumbar spine degenerative disc disease with spondylolisthesis was incurred during his military service. 3. Based on his competent and credible assertion of having service in close proximity to the perimeter of the Nakhon Phanom Royal Thai Air Force Base (RTAFB) in Thailand, and resolving doubt in his favor, the Veteran is presumed to have been exposed to herbicides during active service. CONCLUSIONS OF LAW 1. The criteria to reopen the previously denied claim for entitlement to service connection for lumbar spine degenerative disc disease have been met. 38 U.S.C. §§ 1110, 5107(b), 5108; 38 C.F.R. §§ 3.156, 20.1103. 2. The criteria for entitlement to service connection for lumbar spine degenerative disc disease with spondylolisthesis and spondylosis (claimed as lower back condition) have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for diabetes mellitus type II associated with herbicide exposure have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force on active duty from January 1971 to September 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In July 2021, the Veteran testified regarding the aforementioned issues at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the records. The Veteran's claim for service connection for lumbar spine degenerative disc disease was originally denied in a November 1980 decision. The Veteran failed to file a timely appeal and that decision became final. His claim was subsequently reopened but denied in an April 2013 rating decision, and the denial was also continued in the current rating decision on appeal. As shown more fully below, the Board has determined that new and material evidence has been received to reopen the Veteran's lumbar spine disability claim, in light of the submission of treatment records and specific facts revealed by the Veteran during his sworn testimony with regards to the circumstances of his service and detailed statements of continuity of symptoms post service. New and Material Evidence Generally, a final decision may not be reopened and allowed, and a claim based on the same factual basis may not be considered. However, under 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition. The Court has held that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board is required to give consideration to all of the evidence received since the first denial of the claim in light of the totality of the record. Hickson v. West, 12 Vet. App. 247, 251 (1999). In this regard, the Court in Shade v. Shinseki, 24 Vet. App. 110 (2010) held that the language of 38 C.F.R. § 3.156(a) created a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Further, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The question of whether new and material evidence has been received to reopen a claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Id at 1369. As such, notwithstanding the RO's position, the Board is not bound by whether the claims should be reopened and must nevertheless consider whether new and material evidence has been received. 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); Graves v. Brown, 8 Vet. App. 522, 524 (1996). "New evidence" means existing evidence not previously submitted to the 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). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. If it is determined that new and material has been submitted, the claim must be reopened. The Board may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. 1. New and material evidence having been received, the claim to reopen the previously denied claim for entitlement to service connection for lumbar spine degenerative disc disease is reopened. The RO reopened the Veteran's claim in the April 2013 rating decision, stating that the additional documents that have been submitted since the original denial of his claim in 1980, including an October 2012 VA examination, which reflects a current diagnosis, were new and material. However, the RO also found such did not warrant granting the Veteran's service claim connection for his lumbar spine disability, based on the negative nexus opinion by the VA examiner that a nexus has not been shown to his military service. Other additional documents of record since the initial denial of his claim in 1980 included private treatment records, (from August 29, 1982, through January 29,1986, and February 9, 2000, through November 14, 2007), reflecting ongoing treatment for his lumbar spine disability, written statements, and VA Form 21-4138, Statement in Support of Claim. During his July 2021 virtual Board hearing, the Veteran also testified with regards to his in-service complaints of low back pain and an injury during his active duty service, and continuity of his symptoms, post service. Upon review, the Board finds that the Veteran's newly submitted records that reflect progressive lumbsacral symptoms, including his detailed lay statements of his continuity of symptoms post service, are both new and material evidence sufficient to reopen the Veteran's claim. The evidence is new in that it was not of record at the time of the last final rating decision in November 1980; and the evidence is "material" because it relates to an unestablished fact necessary to substantiate the underlying service connection claim that is, refuting the lack of evidence of continuity of symptoms post service. Moreover, it provides a more complete picture of the circumstances surrounding the basis for the Veteran's claim. As a result, the Board finds that the current evidence of record raises a reasonable possibility of substantiating the Veteran's claim. 38 C.F.R. § 3.156 (a). As the credibility of new evidence is generally presumed, the Veteran's claim of entitlement to service connection for lumbar spine disability is reopened. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: "(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"the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain chronic diseases, including arthritis, are presumed to be incurred in or aggravated by service if manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258 (2015). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, like arthritis and diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. Walker, 708 F.3d 1331. Arthritis and diseases of the nervous system are considered chronic diseases under 38 C.F.R. § 3.309(a). The determination as to whether these requirements are met is based on analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The competence, credibility, and probative (relative) weight of evidence, including lay evidence must be assessed. 38 U.S.C. § 1154(a). Lay evidence can be considered competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the unique and readily identifiable features of a medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 2. Entitlement to service connection for lumbar spine degenerative disc disease with spondylolisthesis and spondylosis (claimed as lower back condition) is granted. The Board acknowledges that the Veteran meets the current disability element of service connection, as he was diagnosed with lumbar spine degenerative disc disease with spondylolisthesis and spondylosis during a VA examination in October 2012. As to the in-service element of service connection, the Veteran contends that his lumbar spine disability is related to his military service because while in service, he fell out of chair, injuring his back, that he was transported to the hospital by an ambulance, requiring a 10 day hospital stay. Further, the Veteran also testified to same during his July 2021 virtual Board hearing, noting that he has experienced continuous low back pain ever since. The Board notes that the Veteran's STRs reflect a September 3, 1975, diagnosis of low back sprain, and the Veteran's January 20, 1976, complaint of low back pain from an injury and treatment at the Orthopedic Clinic at the Robins USAF hospital, with the attending physician commenting that the Veteran was brought in by ambulance. As such, the record is consistent with the Veteran's assertions. Given these facts, the Board accepts the Veteran's assertions of in-service occurrence of low back pain as consistent with the circumstances of his service and assigns the Veteran's lay statements high probative value. 38 U.S.C. § 1154 (b). As to the nexus element, during his October 2012 VA examination, the VA examiner stated that that it was less likely as not (less than 50 percent probability) that the Veteran's lumbar spine disability was caused by or was as a result of his military service, citing to his STRs reflecting several incidences of muscular pain, which the examiner deemed to be acute in nature, and thus found such inconsistent with the current degenerative changes of the Veteran's lumbar spine disability, which he attributes to the Veteran's long standing obesity. First, the Board notes that four years following his military discharge, during his initial VA examination in October 1980, the Veteran was diagnosed with the same diagnosis that he was diagnosed with while in service, that is back strain, atraumatic low back pain. Further, the Veteran's treatment record also reflects consistent complaints and treatment for low back pain since his military exit. For instance, during a May 2013 private consultation, the Veteran reported experiencing ongoing low back pain since his military back injury, and that over the years he has been treated with steroid injections and antiinflammatory medication, but has found temporary relief off and on with rest and medication. See, January 2014 Third Party Correspondence. His private treatment records reveal that in May 2015 he was treated for low back pain, and following a physical evaluation, it was determined that he has degenerative disc disease. An October 2019 MRI of the lumbar spine also revealed marked degenerative loss of disc height, noting chronic degenerative changes. See, 2014 Medical Treatment Records. Consequently, the Board does not find the October 2012 VA examiner's reasoning for his negative nexus opinion persuasive, based on the record of the Veteran's ongoing treatment for low back pain, reflecting severe degenerative changes, which is not acute in nature. Further, the examiner did not provide a supporting medical explanation why he solely attributed the Veteran's current lumbar spine disability to obesity, in spite of his in-service low back pain diagnosis before his in-service back injury and subsequent diagnosis of same. Therefore, the Board assigns the October 2012 VA examiner's negative nexus opinion, low probative value. In summary, the Board finds that the evidence is at least in equipoise regarding whether the Veteran's current lumbar spine disability was incurred in service. Moreover, the Veteran's diagnosed degenerative disc disease is considered a chronic disease that together with the Veteran's credibly statements of continuity, may be presumptively linked to the Veteran's active service. Accordingly, and resolving all reasonable doubt in his favor, the Board finds that service connection for the Veteran's low back disability, diagnosed as lumbar spine degenerative disc disease with spondylolisthesis and spondylosis, is warranted in this case. 3. Entitlement to service connection for diabetes mellitus type II associated with herbicide exposure is granted. The Veteran asserts that he has diabetes mellitus, type II, as the result of exposure to herbicides during his active duty military service while assigned to the Red Horse Unit storage yard at the Nakhon Phanom Royal Thai Air Force Base (RTAFB) in Thailand, and on temporary duty assignment in Vietnam. See, April 2015 Notice of Disagreement (NOD); October 2016 VA Form 9; July 2021 Hearing Transcript. VA has adopted a procedure for verifying exposure to herbicides in Thailand during the Vietnam era. Specifically, VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand. The herbicide use was intended to eliminate vegetation and ground cover for base security purposes. VA has acknowledged that the herbicides used on the Thailand base perimeters may have been tactical or a commercial variant of much greater strength and with the characteristics of tactical herbicides. Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. This allows for presumptive service connection of the diseases associated with herbicide exposure The majority of troops in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. These provisions apply only during the Vietnam era. The United States Court of Appeals for Veterans Claims has noted that "[t]he VA Compensation Service has acknowledged that there was 'some evidence that the herbicides used on the Thailand base perimeters may have been either tactical, procured from Vietnam, or a commercial variant of much greater strength and with characteristics of tactical herbicides.'" Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 177 (2016). Although his military personnel records do not specifically list his active duty service in Thailand or Vietnam, his assignment duty record documents that the Veteran had specific supply related duties that were performed in Southeast Asia. More importantly, the Veteran's STR reflect a July 1973 treatment for flu-like symptoms at the USAF hospital in Nakhon Phanom RTAFB in Thailand, which confirms his presence there as he has consistently asserted. Further, the Veteran testified during his virtual Board hearing that he served as a Supply Sergeant, while permanently stationed in Nakhon Phanom (N.K.P.), Thailand, and that during this period, he was sent on an assignment into the interior of Vietnam and in Udorn, Central Thailand, both, to repair the runways; that the nature of such assignments involved using forklifts to smooth the runway paths, and that "the storage yard was up against the fence, the permitter." The Veteran also testified that he was stationed in N.K.P. for 185 days, and that during that time period, Agent Orange was being used near the perimeter (between 50 feet to 100 feet) where "the airplanes were kept." This Board notes that this period is consistent with the length of the Veteran's foreign service listed in his military personnel record. While the RO has acknowledged that diabetes mellitus, type II, is one of the conditions associated with herbicide exposure, it also noted that such exposure was not conceded because the Veteran's military occupation specialty (MOS) as an Inventory Management Specialist is not considered one of the occupations that would have brought him into regular contact with the base perimeter where non-tactical commercial herbicides were sporadically used. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Based on the available evidence of record specific to this matter, the Board finds that the most probative evidence supports a finding that the Veteran was stationed in Nakhon Phanom RTAFB in Thailand during the Vietnam Era, and that his duties placed him in close proximity to the perimeter. Any reasonable doubt regarding the accuracy of the Veteran's statements is resolved in the Veteran's favor, and the Board finds that the Veteran was exposed to tactical herbicides during his active service. 38 C.F.R. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, herbicide exposure is conceded. If a veteran was exposed to an herbicide agent during active service, certain diseases, including diabetes mellitus, type II, will be presumed service connected. 38 C.F.R. § 3.309 (e). These diseases need only manifest to a degree of at least 10 percent at any time after service, with the exception of chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy, which must have manifested to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(ii). As to a current diagnosis, the Board notes that the October 2012 VA examination report confirmed the Veteran's prior December 2000 diagnosis of diabetes mellitus (DM), type II; a May 2013 private treatment evaluation also lists the Veteran's ongoing treatment for his DM with Metformin, an oral diabetes medicine, and a May 2015 treatment record notes a diagnosis of diabetes mellitus, with possible polyneuropathy. Therefore, as the Board has found the Veteran to be exposed to herbicides during his active duty service and he has a current diagnosis for diabetes mellitus, type II, the Board finds that presumptive service connection for diabetes mellitus, type II, is warranted in this case. 38 U.S.C. § 1116 (a); 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, 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.