Citation Nr: 21071150 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 18-13 471 DATE: November 29, 2021 ORDERS 1. As new and material evidence has been received, the claim for entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicide agents, is reopened. 2. As new and material evidence has been received, the claim for entitlement to service connection for prostate cancer, to include as due to exposure to herbicide agents, is reopened. 3. As new and material evidence has been received, the claim for entitlement to service connection for ischemic heart disease (IHD), to include as due to exposure to herbicide agents, is reopened. 4. As new and material evidence has been received, the claim for entitlement to service connection for erectile dysfunction as secondary to diabetes mellitus, type II, is reopened. 5. Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicide agents, is granted. 6. Entitlement to service connection for prostate cancer, to include as due to exposure to herbicide agents, is granted. 7. Entitlement to service connection for IHD, to include as due to exposure to herbicide agents, is granted. 8. Entitlement to service connection for erectile dysfunction as secondary to diabetes mellitus, type II, is granted. FINDINGS OF FACT 1. In a December 2011 rating decision, the RO denied the Veteran's claims to service connection for diabetes mellitus, type II, prostate cancer, and IHD, to include as due to exposure to herbicide agents, and erectile dysfunction secondary to diabetes mellitus, type II; the Veteran did not submit a Notice of Disagreement (NOD), no new and material evidence was received within one year of the decision, and the decision became final. 2. The evidence received since the December 2011 rating decision is not cumulative or redundant of the evidence of record, relates to an unestablished fact, and raises a reasonable possibility of substantiating the Veteran's claims for entitlement to service connection for diabetes mellitus, type II, prostate cancer, and IHD, to include as due to exposure to herbicide agents, and erectile dysfunction secondary to diabetes mellitus, type II. 3. Resolving all reasonable doubt in the Veteran's favor, it is at least as likely as not that the Veteran was exposed to herbicide agents while performing his duties in and around the perimeter of the Korat Royal Thai Air Force Base (RTAFB) and elsewhere in Thailand during the Vietnam era. 4. The Veteran's currently-diagnosed diabetes mellitus, type II, is presumed to be due to in-service exposure to herbicide agents. 5. The Veteran's currently-diagnosed prostate cancer is presumed to be due to in-service exposure to herbicide agents. 6. The Veteran's currently-diagnosed IHD is presumed to be due to in-service exposure to herbicide agents. 7. The Veteran's currently-diagnosed erectile dysfunction is caused or aggravated by his diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The November 2011 rating decision that denied the claim to entitlement for service connection for diabetes mellitus, type II, prostate cancer, and IHD, to include as due to exposure to herbicide agents, and erectile dysfunction secondary to diabetes mellitus, type II, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicide agents. 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 prostate cancer, to include as due to exposure to herbicide agents. 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 IHD, to include as due to exposure to herbicide agents. 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 erectile dysfunction as secondary to diabetes mellitus, type II. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 6. The criteria for entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicide agents, have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 7. The criteria for entitlement to service connection for prostate cancer, to include as due to exposure to herbicide agents, have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 8. The criteria for entitlement to service connection for IHD, to include as due to exposure to herbicide agents, have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 9. The criteria for entitlement to service connection for erectile dysfunction as secondary to diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from January 1967 to January 1971, with service in Thailand. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran originally requested a hearing in his February 2018 VA Form 9; however, his attorney withdrew his hearing request in a December 2019 letter. Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). New and Material Evidence Rating actions are final and binding based on the evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, 20.302(a). VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); see also Manio v. Derwinksi, 1 Vet. App. 140, 145 (1991). New evidence is evidence not previously submitted to agency decisionmakers. Material evidence is 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 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a low one. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited 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. See id. at 117-18. The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade, 24 Vet. App. at 120. 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicide agents 2. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for prostate cancer, to include as due to exposure to herbicide agents 3. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for IHD, to include as due to exposure to herbicide agents 4. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for erectile dysfunction as secondary to diabetes mellitus, type II In the December 2011 rating decision, the RO denied the Veteran's claims for service connection for diabetes mellitus, type II, prostate cancer, and IHD, to include as due to exposure to herbicide agents because there was insufficient evidence of exposure to herbicides, and the erectile dysfunction claim as secondary to diabetes mellitus, type II, was denied because diabetes mellitus, type II was not service-connected. The December 2011 decision was final. Since the Veteran's last prior final denial in December 2011, the record includes letters from the Veteran from September 2014, May 2016, March 2018, and December 2020 detailing the time he spent during his service on the perimeter of his base due to his MOS (military occupational specialty) and other service-related activities. The Board finds that this evidence is new, as it was not previously of record, and tends to relate to a previously unestablished fact necessary to substantiate the underlying claims of service connection. The Veteran's statements will be presumed credible for the purpose of reopening the claims. Consequently, the claims of entitlement to service connection diabetes mellitus, type II, prostate cancer, and IHD, to include as due to exposure to herbicide agents, and erectile dysfunction as secondary to diabetes mellitus, type II, are reopened. 5. Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicide agents 6. Entitlement to service connection for prostate cancer, to include as due to exposure to herbicide agents 7. Entitlement to service connection for IHP, to include as due to exposure to herbicide agents Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Presumptive service connection is available for certain diseases associated with exposure to herbicide agents. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. For purposes of establishing service connection on this basis, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962 and May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, absent affirmative evidence to the contrary. See 38 U.S.C. § 1116(f); 3.307(a)(6). If a veteran was exposed to herbicide agents during active service and develops an enumerated disease associated with exposure to herbicide agents, to include diabetes mellitus, type II, prostate cancer, and IHD, the disease shall be service-connected even if there is no record of such disease during service. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e). This presumption is rebuttable by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). VA has determined that there was significant use of herbicide agents on the fenced-in perimeters of military bases in Thailand, a practice that was intended to eliminate vegetation and ground cover for base security purposes. A primary source for that information was the declassified Vietnam era Department of Defense document titled Project CHECO Southeast Asia Report: Base Defense in Thailand. Although the Department of Defense indicated that the herbicide used was commercial in nature rather than tactical, VA has determined that there was some evidence that herbicide agents of a tactical nature, or of a greater strength commercial variant, were used. As such, exposure to herbicide agents may also be established on a factual basis for veterans whose duties placed them on or near the perimeters of Thai military bases. VA has identified several bases in Thailand, including U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, that qualify for that consideration. Therefore, herbicide agent exposure should be acknowledged on a facts-found or direct basis if a veteran served at one of the air bases as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty (MOS), performance evaluations, or other credible evidence, during the Vietnam era, from February 28, 1961, to May 7, 1975. Where 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(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996 The Veteran seeks service connection for diabetes mellitus, type II, prostate cancer, and IHD, which he asserts is due to exposure to herbicide agents during service in Thailand. Post-service medical records confirm that the Veteran has been diagnosed with diabetes mellitus, type II, prostate cancer, and IHD. As such, the dispositive issue in this case is whether the Veteran was exposed to herbicide agents during service. Military records confirm that the Veteran served in Thailand during the Vietnam era, from November 1967 to October 1968. The Veteran's official MOS was a still photographer. The Veteran's service personnel records document that during his deployment to Thailand, he was assigned to the 600th Photographic Squadron and the 601st Photographic Flight at the Korat RTAFB. The Veteran submitted letters in July 2011, September 2014, May 2016, March 2018, and December 2020 detailing his exposure to the perimeter of the Korat RTAFB. He specified that due to his MOS as a still photographer he spent ample time on the perimeter of the base photographing damaged fencing and entry points and at sites at the very back of the base where pilots disposed of undetonated bombs. The Veteran further indicated that as a secondary job he was selected to serve as an augmented security police, and he stated that whenever there was a security alert he was dispatched to serve as sentry around the perimeter of the base and the airfield. The Board finds the Veteran's written statements attesting to the circumstances of his service, to include his performance of duties near the perimeter of his base, to be credible, consistent, and uncontroverted by other evidence of record. Considering the Veteran's military duties, the weight of the evidence is at least in equipoise regarding whether his duties frequently took him near the perimeters of Korat RTAFB, where herbicide agents were known to be used. Consequently, the Board finds that it is at least as likely as not that the Veteran was exposed to herbicide agents during service in Thailand during the Vietnam era. Moreover, the Veteran has the current diagnoses of diabetes mellitus, type II, prostate cancer, and IHD, which are all associated with exposure to herbicide agents. See 38 C.F.R. § 3.309(e). Accordingly, after resolving all reasonable doubt in the Veteran's favor, the Board finds that presumptive service connection for diabetes mellitus, type II, based on in-service exposure to herbicide agents, prostate cancer based on in-service exposure to herbicide agents, and IHD based on in-service exposure to herbicide agents, is warranted. As the criteria for service connection have been met, the claim is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Entitlement to service connection for erectile dysfunction as secondary to diabetes mellitus, type II The Veteran seeks entitlement to service connection for erectile dysfunction, which he asserts is secondary to his now service-connected diabetes mellitus, type II. Review of the Veteran's medical records shows that the Veteran has a current diagnosis of erectile dysfunction associated with diabetes mellitus, type II. (Continued on the next page) The Veteran's private treatment records noted an erectile dysfunction diagnosis. August 2007 private treatment records by a urologist stated that the Veteran's diabetes reduced the Veteran's potency to the point where his erections were 50 to 60 percent of what was normal for him. There is no medical evidence of record that controverts or conflicts with the August 2007 private urologist's opinion. Therefore, the Board finds that the Veteran's erectile dysfunction was caused or aggravated by his diabetes mellitus, type II. Accordingly, the Board finds that service connection for erectile dysfunction as secondary to diabetes mellitus, type II, is warranted. As the criteria for service connection have been met, the claim is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ahuva D. Sunshine 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.