Citation Nr: 21076765 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-56 187 DATE: December 27, 2021 ORDER New and material evidence having been introduced, the claims for service connection for diabetes mellitus, type II, and lung cancer are reopened REMANDED Entitlement to service connection for diabetes mellitus, type II, to include as secondary to herbicide agent exposure is remanded. Entitlement to service connection for lung cancer, to include as secondary to herbicide agent exposure is remanded. FINDINGS OF FACT 1. The claims for service connection for diabetes mellitus and lung cancer were denied in an August 2013 rating decision. The Veteran filed a September 2013 Notice of Disagreement (NOD), and a Statement of the Case (SOC) was issued December 30, 2013. The Veteran did not perfect an appeal. 2. Evidence introduced into the record following the December 20, 2013 SOC, by itself or in conjunction with previously considered evidence, relates to unestablished facts necessary to substantiate the Veteran's claims for service connection for diabetes and lung cancer. CONCLUSIONS OF LAW 1.The December 2013 RO decision was final. 38 U.S.C. § 1705 (c); 38 C.F.R. § 20.1103. 2. The evidence received since December 2013 is new and material, and the claims for service connection for diabetes and lung cancer are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1965 to January 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The claimant has not 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 Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C. § 5108. 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. New evidence means existing evidence not previously submitted to 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. 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Id. at 117. Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. at 117. The Veteran filed a claim for service connection for diabetes and lung cancer in October 2012. The claim was denied in an August 2013 Rating Decision, in response to which the Veteran filed a September 2013 NOD. The SOC was issued in December 2013; the Veteran was informed of the decision, but did not appeal. Since that time, the Veteran has advanced additional evidence, including lay statements shedding light on the nature of his service. The Board finds this evidence "new," because it postdates the aforementioned rating decisions. The Board also finds the new evidence "material," because it bears directly on points at issue on the question of entitlement to service connection in the instant case, and raises at least a reasonable probability of substantiating the underlying claims. Consequently, the claims of service connection for diabetes and lung cancer are reopened. REASONS FOR REMAND The claims for entitlement to service connection for diabetes mellitus, type II, and lung cancer, to include as secondary to herbicide agent exposure, are remanded. The Veteran's service connection claims require further development before they can be finally adjudicated. The Veteran has averred that his diabetes and lung cancer may be related to in-service exposure to tactical herbicides, including benzene, while he was stationed near the Korean DMZ. The Board notes that both claimed conditions are presumptively linked to herbicide agent exposure where such exposure is shown in the record. A July 2013 VA memorandum indicates that then extant information regarding the Veteran's claimed exposure to herbicide agents was insufficient to forward the matter to the JSRRC or NARA regarding possible exposure. However, the Veteran has since provided additional information on the nature of his service and his theory of entitlement on a presumptive basis due to such exposure. Further, the Veteran has not been afforded VA examinations in connection with these claims. On remand, VA examinations must be conducted and expert medical opinions as to etiology obtained. The matters are REMANDED for the following action: 1. After obtaining the necessary authorization, update the claims file with any relevant outstanding VA and/or private treatment records. 2. Then, forward the claims file to the appropriate service department or other entity for confirmation of the Veteran's claimed exposure to herbicide agents. If information deemed necessary to forward the to the appropriate location is found to be absent from the record, afford the Veteran the opportunity to supplement the record with the missing information. 3. Schedule the Veteran for a VA examination to explore the etiology of his diabetes mellitus, type II. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. The examiner is requested to state whether, on an at least as likely as not basis, the Veteran's diabetes had its onset in active-duty service or is etiologically related to active-duty service. 4. Schedule the Veteran for a VA examination to explore the etiology of his lung cancer and residuals. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. The examiner is requested to state whether, on an at least as likely as not basis, the Veteran's lung cancer had its onset in active-duty service or is etiologically related to active-duty service. 5. Then, re-adjudicate the claims. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sahraie, 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.