Citation Nr: 21074132 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 19-20 370 DATE: December 14, 2021 ORDER The appeal as to whether the Veteran filed a timely substantive appeal (VA Form 9) to a June 24, 2016 rating decision is granted. The previously denied claim of entitlement to service connection for coronary artery disease, claimed an ischemic heart disease (a heart disability), is reopened on the basis of new and material evidence; to this extent only, the appeal is granted. The previously denied claim of entitlement to service connection for diabetes mellitus type II, is reopened on the basis of new and material evidence; to this extent only, the appeal is granted. The previously denied claim of entitlement to service connection for peripheral neuropathy of the left upper extremity, is reopened on the basis of new and material evidence; to this extent only, the appeal is granted. The previously denied claim of entitlement to service connection for peripheral neuropathy of the left lower extremity, is reopened on the basis of new and material evidence; to this extent only, the appeal is granted. The previously denied claim of entitlement to service connection for peripheral neuropathy of the right upper extremity, is reopened on the basis of new and material evidence; to this extent only, the appeal is granted. The previously denied claim of entitlement to service connection for peripheral neuropathy of the right lower extremity, is reopened on the basis of new and material evidence; to this extent only, the appeal is granted. Entitlement to service connection for pleural thickening of the lungs is denied. REMANDED Entitlement to service connection for a heart disability, to include as due to Agent Orange exposure, is remanded. Entitlement to service connection for diabetes mellitus type II, to include as due to Agent Orange exposure, is remanded. Entitlement to service connection for peripheral neuropathy of the left upper extremity, as secondary to diabetes mellitus type II, is remanded. Entitlement to service connection for peripheral neuropathy of the left lower extremity, as secondary to diabetes mellitus type II, is remanded. Entitlement to service connection for peripheral neuropathy of the right upper extremity, as secondary to diabetes mellitus type II, is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity, as secondary to diabetes mellitus type II, is remanded. FINDINGS OF FACT 1. The Veteran filed a VA Form 9 in July 2018, which was greater than 60 days from the February 2018 date that the Regional Office (RO) mailed the Veteran and his representative the statement of the case (SOC) and not within the remainder of the one-year period from the mailing of notice of the June 2016 rating decision. The time period for filing a VA Form 9 should be equitably tolled because the presumption of regularity has been rebutted with respect to the timeliness of the VA Form 9 based upon receipt of evidence that VA failed to properly discharge its duty. 2. In a October 2008 rating decision, the RO denied service connection for a heart disability, service connection for diabetes mellitus type II, service connection for peripheral neuropathy of the left upper extremity, service connection for peripheral neuropathy of the left lower extremity, service connection for peripheral neuropathy of the right upper extremity, and service connection for peripheral neuropathy of the right lower extremity; the Veteran did not appeal that decision or submit new and material evidence within the year following notification of that decision. 3. Evidence associated with the claims file since the October 2008 denial of service connection for a heart disability relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 4. Evidence associated with the claims file since the October 2008 denial of service connection for diabetes mellitus type II, relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 5. Evidence associated with the claims file since the October 2008 denial of service connection for peripheral neuropathy of the left upper extremity relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 6. Evidence associated with the claims file since the October 2008 denial of service connection for peripheral neuropathy of the left lower extremity relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 7. Evidence associated with the claims file since the October 2008 denial of service connection for peripheral neuropathy of the right upper extremity relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 8. Evidence associated with the claims file since the October 2008 denial of service connection for peripheral neuropathy of the right lower extremity relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 9. The Veteran does not have a current lung disability which could be attributed to active service. CONCLUSIONS OF LAW 1. The requirements are met for a timely substantive appeal, via VA Form 9, with respect to the June 2016 RO rating decision. 38 U.S.C. §§ 7105, 7108; 38 C.F.R. §§ 3.103, 3.104, 19.30, 19.32, 19.34, 19.52, 20.200, 20.300, 20.301. 2. The October 2008 RO decision, which denied the Veteran's claim of service connection for a heart disability, service connection for diabetes mellitus type II, service connection for peripheral neuropathy of the left upper extremity, service connection for peripheral neuropathy of the left lower extremity, service connection for peripheral neuropathy of the right upper extremity and service connection for peripheral neuropathy of the right lower extremity, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 3. New and material evidence has been received to reopen the claim of service connection for a heart disability. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156. 4. New and material evidence has been received to reopen the claim of service connection for diabetes mellitus type II. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156. 5. New and material evidence has been received to reopen the claim of service connection for peripheral neuropathy of the left upper extremity. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156. 6. New and material evidence has been received to reopen the claim of service connection for peripheral neuropathy of the left lower extremity. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156. 7. New and material evidence has been received to reopen the claim of service connection for peripheral neuropathy of the right upper extremity. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156. 8. New and material evidence has been received to reopen the claim of service connection for peripheral neuropathy of the right lower extremity. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156. 9. The criteria for service connection for pleural thickening of the lungs have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1965 to April 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal of June 2016 and December 2019 rating decisions of the Department of Veterans Affairs (VA). In December 2019, the Board denied the appeal as to whether the Veteran filed a timely VA Form 9 to a June 24, 2016 rating decision. The Veteran appealed the December 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In a Joint Motion for Remand (JMR) dated in August 2021, the Court vacated the Board's decision of the appealed issue and remanded the claim to the Board for compliance with the terms of the JMR. Timeliness Claim In this case, the Veteran and his representative assert that the representative did not receive the SOC regarding the issues the seven previously denied claims listed above. They assert that the relevant SOC, dated in February 2018, was never actually mailed by the RO, and/or never received by the representative at that time. Following the issuance of an SOC an appellant may perfect an appeal by filing a VA Form 9 within 60 days of the issuance of the SOC, or within one year of the issuance of the decision on appeal, whichever is later. See 38 C.F.R. § 19.52. If a veteran does not file a timely VA Form 9 or substantive appeal, then the underlying rating decision becomes final. 38 C.F.R. § 19.32. Whether a substantive appeal has been timely filed is an appealable issue. 38 C.F.R. § 19.34. In its December 2019 decision, the Board found that the Veteran had until April 25, 2018, or 60 days from the date of the February 24, 2018 SOC notification letter, to file a substantive appeal and that the Veteran did not perfect his appeal in a timely manner since the VA Form 9 was not received by the RO until July 19, 2018. Shown in the JMR, the Veteran alleged that there was a general problem with VA mailing procedures. See GAO Study, "Actions Needed to More Effectively Manage Outgoing Mail". The Veteran's representative also asserted that VA did not mail the February 2018 SOC. The parties agreed that vacatur and remand were warranted in order for the Board to apply Romero v. Tran, 33 Vet. App. 252 (2021) to the facts of this case. Claimants and their representatives are entitled to notice of any decision made by VA, including in an SOC. 38 C.F.R. § 3.103. Under the presumption of regularity in the administrative process, it is presumed that a claimant received proper notice. See Boyd v. McDonald, 27 Vet. App. 63, 71-72 (2014) (holding that under the presumption of regularity, if notice is sent to the claimant's last known address of record, it will be presumed that VA properly discharged its official duties); see also Marsh v. Nicholson, 19 Vet. App. 381, 385 (2005) (finding the presumption of regularity states, in the absence of clear evidence to the contrary, that VA and other government officials perform their duties correctly, fairly, in good faith, and in accordance with the law and governing regulations). A veteran may rebut the presumption of regularity by submitting clear evidence to the effect that VA's regular mailing practices were not followed. Crain v. Principi, 17 Vet. App. 182, 188 (2003). Such evidence includes "clear evidence that VA did not follow its regular mailing practices or that its practices were not regular." Boyd, 27 Vet. App. at 72. An "assertion of nonreceipt, standing alone, does not rebut the presumption of regularity in VA's mailing process." Jones v. West, 12 Vet. App. 98, 103 (1998). If a veteran succeeds in rebutting the presumption of regularity, then the burden shifts to VA to establish that regular administrative practices were, in fact, observed. Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001); Baxter v. Principi, 17 Vet. App. 407, 410 (2004); Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992). If the presumption of regularity is rebutted and the date of the SOC itself cannot, alone, be used to determine the date on which it was mailed to a veteran, the burden shifts to VA to determine when the veteran received the SOC for purposes of determining whether a timely substantive appeal was received following receipt of the SOC. Crumlich v. Wilkie, 31 Vet. App. 194, 203-204 (2019) (holding that the portion of 38 C.F.R. § 20.302(b)(1), which creates a presumption of the date of mailing of a SOC for the purposes of determining whether an appeal has been timely filed is invalid). More recently, in Romero v. Tran, 33 Vet. App. 252 (2021), the Court held that the presumption of regularity attaches to VA's mailing of an SOC because the mailing of the SOC to the claimant and representative is a legal duty as provided in statute and regulation; no further evidence is required to trigger the presumption. Additionally, the Court held that rebuttal of the presumption of regularity requires clear evidence that VA failed to properly discharge its duty, but such evidence need not be claimant-specific. Id. Finally, the Court held that once the presumption of regularity as to a mailing is rebutted, the Secretary has the burden of establishing actual mailing or receipt by a preponderance of the evidence. Id. In this case, there is evidence detailing the representative's experience with deficiencies within VA's mail system that have resulted in failure to properly discharge its duty with respect to the duties to notify and assist, including the same 2017 GAO report submitted in Romero detailing VA's deficiencies with its management of outgoing mail, and moreover, the Court's holding in Romero does not require such evidence to be specific to the Veteran in this particular instance. As such, the presumption of regularity as to mailing of the February 2018 SOC has been rebutted. Therefore, the Board finds that the February 2018 issuance of the SOC did not satisfy VA's legal duty to provide a copy of the it by a preponderance of the evidence, as described 38 C.F.R. §§ 3.103 and 19.30. The time for response did not begin to run because the Veteran's attorney did not actually receive notice of the seven denied issues in the SOC. See Romero, 33 Vet. App. Thus, the response period should not have begun to run until when the Veteran's attorney "received" the February 2018 SOC by locating the document in VBMS. Resolving all doubt in the favor of the Veteran as to the date being July 19, 2018, the date the VA Form 9 was submitted to VA. The Board finds that the July 2018 VA Form 9 is timely, and the Veteran's appeal of the June 2016 rating decision should proceed and be reinstated. Given the above, the matter must be adjudicated on the merits of the issues. New and material evidence In an October 2008 rating decision, the RO denied service connection for a heart disability, service connection for diabetes mellitus type II, service connection for peripheral neuropathy of the left upper extremity, service connection for peripheral neuropathy of the left lower extremity, service connection for peripheral neuropathy of the right upper extremity and service connection for peripheral neuropathy of the right lower extremity. The Veteran did not file a notice of disagreement with the decision, nor was any new and material evidence received during the remainder of the appeal period. 38 C.F.R. § 3.156(b). Therefore, the October 2008 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. § § 3.104, 20.302, 20.1103. The evidence received since that rating decision includes VA treatment records, reports in support of the Veteran's claimed Agent Orange exposure in Thailand and VA Agent Orange exposure memorandum. As this evidence was not previously before agency decisionmakers, relates to an unestablished fact necessary to substantiate the Veteran's claims, and is neither duplicative nor cumulative of evidence previously received, the Board finds it to be new and material sufficient to warrant reopening the Veteran's claims for service connection. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The reopened claims will be further addressed in the REMAND section of this decision. Entitlement to service connection for pleural thickening of the lungs Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 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)). Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1110. In the absence of proof of present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran seeks service connection for pleural thickening of the lungs. The Veteran's service treatment records are silent for complaints or treatment for any lung condition. The Veteran has not provided any competent evidence that he currently has a lung condition. Post-service private and VA treatment records have been associated with the claims file. The record is devoid of medical evidence identifying the claimed condition. The Veteran himself does not have medical training and credentials and is not competent to provide an opinion as to a diagnosis or medical etiology. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Thus, the evidence does not reflect a diagnosis for the claimed disability. The Veteran has not been afforded an examination in regard to this service connection claim, but VA does not have a duty to provide one here, as there is no indication that the condition may be associated with the Veteran's service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Given the absence of competent evidence supporting a current disability, the Board finds no reasonable possibility that a VA examination would result in a favorable finding. As a consequence, the Board finds that an examination is not "necessary" for the issue. 38 C.F.R. § 3.159(c)(4). In the absence of proof of a present disability for either claimed disability, there can be no valid claim for service connection. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). Thus, service connection for pleural thickening of the lungs is not warranted. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence weighs against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b). REASONS FOR REMAND The Veteran contends that he was exposed to Agent Orange while in service, leading to his claimed disabilities of a heart condition and diabetes mellitus, type II (and secondarily leading to peripheral neuropathy of all four extremities). Ischemic heart disease and diabetes mellitus, type II, are covered by VA's herbicide agent regulations. 38 C.F.R. §§ 3.307(d)(6)(iii), 3.309(e). The Veteran notes that was stationed in Korat and Nakhon Phanom Royal Air Forces bases in Thailand. He also notes that he was on the USS William Weigel which stopped in Vietnam. His military occupational specialty is wheeled vehicle maintenance. He notes that he was responsible for building roads and vehicle maintenance. He states that herbicides were used on the bases and that he would walk to the perimeter and because of the rain, the herbicides used on the vegetation would be washed inwards to the base. See Correspondence dated in September 2015. In this regard, a review of the Veteran's claims files shows a Memorandum regarding Herbicide Use in Thailand during the Vietnam Era noting that the Compensation Service had reviewed a listing of herbicide use and test sites outside of Vietnam provided to the office by the Department of Defense which listed 71 sites within the U.S. and foreign countries where tactical herbicides, such as Agent Orange, were used, tested or stored. A review of the Project CHECO report was also noted. Also in the file, was a record noting that a review of the deck logs of the USS General William Weigel did not refer to the personnel aboard. A VA memorandum regarding the claimed Agent Orange exposure, associated in June 2016, indicated that based on the evidence available, to include an herbicide verification review, the Veteran's herbicide exposure could not be conceded at that time. It was noted that the Veteran had served as a vehicle mechanic, assigned to engineer units during his service in Thailand, to include at the Korat Thai Air Force Base. There were no records or statements that the Veteran had a security duty at the perimeter. The USS Weigel was not listed in Navy and Coast Guard Ships associated with service in Vietnam and exposure to herbicide agents, which was updated in June 2016. A remand to assist in fully and fairly evaluating the Veteran's claims is required in this case. First, a remand is necessary for the Agency of Original Jurisdiction (AOJ) to update its review of the information provided by the Veteran regarding his alleged exposure to Agent Orange in Thailand, in light of the VA memorandum noting that the USS Weigel was not listed in Navy and Coast Guard Ships associated with service in Vietnam and exposure to herbicide agents as of June 2016. If warranted, the AOJ should submit the matter to the appropriate facility for verification. Second, the Veteran has not yet been afforded VA examinations addressing the etiology of the claimed disorders, and the Board finds examinations are necessary. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Of note, if a Veteran's Agent Orange exposure is not conceded, he or she may assert that he or she has a disability that is etiologically related to service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The matters are REMANDED for the following action: 1. Undertake all appropriate development procedures for verifying the Veteran's allegations of exposure to herbicides while serving in Thailand, to include Korat and Sakon Nakhon Air Force bases and while on the USS William Weigel. If exposure is not corroborated, the AOJ should prepare a formal finding that sufficient information required to verify the claimed exposures do not exist. 2. Then, schedule the Veteran for VA examinations by appropriate medical professionals to determine the nature and etiology of the claimed heart disability and diabetes mellitus, type II, disability. The entire claims file must be reviewed by the examiner. The examiner is to conduct all necessary tests and studies. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. The examiner is to provide an opinion as to whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that any currently diagnosed heart disability and/or diabetes mellitus, type II, disability had its onset during, or was otherwise related to, the Veteran's active military service, to include as a result of exposure to herbicides (if conceded). The examiner must provide a comprehensive report, including complete rationales for all opinions and conclusions reached. 3. Then, if and only if, the claimed diabetes mellitus is found to be related to service, schedule the Veteran for a VA examination by an appropriate medical professional to determine the nature and etiology of the claimed peripheral neuropathy disabilities of the bilateral upper and lower extremities. The entire claims file must be reviewed by the examiner. The examiner is to conduct all necessary tests and studies. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. The examiner is asked to specifically address the following: (a). Is it at least as likely as not (50 percent or greater probability) that any diagnosed bilateral upper or lower extremity peripheral neuropathy was caused by the Veteran's diabetes mellitus disability? (b). Is it at least as likely as not (50 percent or greater probability) that any diagnosed bilateral upper or lower extremity peripheral neuropathy was aggravated by the Veteran's service-connected diabetes mellitus disability? If aggravation is found, the examiner should provide the baseline manifestations of the Veteran's bilateral upper or lower extremity peripheral neuropathy prior to aggravation by the diabetes mellitus disability. A complete rationale must be provided for all opinions expressed and conclusions reached. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Evans, A-L 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.