Citation Nr: 21077001 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-00 878 DATE: December 28, 2021 ORDER New and material evidence has been presented and the request to reopen the claim of entitlement to service connection for diabetes mellitus, Type II is granted. New and material evidence has been presented and the request to reopen a claim of entitlement to service connection for hypertension is granted. REMANDED Entitlement to service connection for diabetes mellitus, Type II, is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a respiratory condition is remanded. Entitlement to service connection for a neck condition is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected residuals of a right ulna fracture is remanded. Entitlement to a disability rating in excess of 30 percent for service-connected tension headaches is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities is remanded. FINDINGS OF FACT 1. Since a final July 2008 regional office decision, the Veteran has submitted new and material evidence relating to unestablished facts and raising a reasonable possibility of substantiating the claim of entitlement to service connection for diabetes mellitus, Type II. 2. Since a final June 1997 regional office decision, the Veteran has submitted new and material evidence relating to unestablished facts and raising a reasonable possibility of substantiating the claim of entitlement to service connection for hypertension. CONCLUSIONS OF LAW 1. New and material evidence has been presented to reopen the claim of entitlement to service connection for diabetes mellitus, Type II. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence has been presented to reopen the claim of entitlement to service connection for hypertension. 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 February 1972 to March 1979, and from May 1999 to July 1999. He had additional periods of Active Duty for Training and Inactive Duty for Training while serving on the Air National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in September 2014 and March 2015 of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his spouse testified before the undersigned Veterans Law Judge (VLJ) during an August 2021 videoconference hearing. A transcript of that hearing is associated with the claims file. New and Material Claims Generally, a claim that has been denied in an unappealed RO or Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence is defined as evidence not previously submitted to agency decision-makers. 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). The regulation does not require new and material evidence as to each previously unproven element of a claim and creates a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). 1. Whether new and material evidence has been presented to reopen the claim of entitlement to service connection for diabetes mellitus, Type II The Veteran's claim of entitlement to service connection for diabetes mellitus, Type II was denied in a July 2008 rating decision. At that time, the RO found that the Veteran's diabetes mellitus was not diagnosed in the military and there was no evidence that it manifested to a compensable degree within 1 year after discharge or that he had service in the Republic of Vietnam to consider herbicide agent exposure. The Veteran did not appeal this decision or submit new and material evidence within one year, and it became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. Evidence received since the August 2008 rating decision includes the Veteran's updated treatment records reflecting treatment for diabetes mellitus, Type II. Additionally, during the August 2021 Board hearing, the Veteran asserted that he was exposed to herbicide agents during his service in Thailand. Specifically, the Veteran reported serving on the flight line, located on the perimeter of the Udorn Royal Thai Air Force Base. VA has established a procedure for verifying exposure to herbicide agents in Thailand during the Vietnam Era. VA has determined that Veterans who served on Royal Thai Air Force Bases (RTAFBs) at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, near the air base perimeter anytime during the Vietnam Era, may have been exposed to herbicide agents. Particularly, to benefit from the presumption of herbicide agent exposure at one of the above listed air bases, a Veteran must have served 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 military occupational specialty, performance evaluation, or other credible evidence. Additionally, diabetes mellitus, Type II, is one of the diseases presumptively associated with herbicide agent exposure. The Veteran's service treatment records note his service in Thailand. Additionally, the Veteran is competent and credible to report that he served near the perimeter of the base. The Board finds that the evidence received since the August 2008 rating decision includes evidence of possible in-service exposure to Agent Orange. This evidence is new, as it was not previously considered, and it is relevant, as it relates to an unestablished fact needed to establish presumptive service connection. Therefore, the Board finds that new and material evidence has been received and the criteria to reopen the Veteran's claim of entitlement to service connection for diabetes mellitus, Type II, have been met. 2. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for hypertension The Veteran's claim of entitlement to service connection for hypertension was denied in a June 1997 rating decision. At that time, the RO found no evidence of a chronic disability and no evidence that linked the Veteran's claimed disability to his period of active service. The Veteran did not appeal this decision or submit new and material evidence within one year, and it became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. Evidence received since the June 1997 rating decision includes treatment records reflecting a current diagnosis of hypertension. Additionally, during the August 2021 Board hearing, the Veteran testified that he was diagnosed with hypertension during service. A review of the service treatment records reveals findings of "borderline" blood pressure during active service. The Board also notes that the Veteran's claims file was lost and rebuilt. As such, it is unknown whether the available service treatment records are complete. Although a diagnosis of hypertension is not indicated in the available service treatment records, the credibility of the Veteran's testimony is presumed. The Board finds that the evidence received since the June 1997 rating decision is new, as it was not previously considered, and it is relevant, as it relates to an unestablished fact needed to establish entitlement to service connection. Therefore, the Board finds that new and material evidence has been received and the criteria to reopen the Veteran's claim of entitlement to service connection for hypertension have been met. REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus, Type II, is remanded. The Veteran asserts that he has diabetes mellitus Type II related to Agent Orange exposure while serving on active duty in Thailand. Specifically, the Veteran testified that he was stationed at the Udorn Royal Thai Air Force Base and that he worked on the flight line in electronic countermeasures in electronic warfare. The Veteran's DD Form 214, Certificate of Release or Discharge from Active Duty, confirms that his military occupational specialty was electronic warfare systems specialist and that he served 9 months of foreign and/or sea service. Additionally, the Veteran's service treatment records reflect that he served in Thailand. Unfortunately, the service personnel records appear incomplete and there is no evidence that VA attempted to confirm the circumstances of the Veteran's service in Thailand or his claimed Agent Orange exposure. Accordingly, this claim is remanded for additional development, to include obtaining any outstanding service personnel records pertaining to the Veteran's service in Thailand. 2. Entitlement to service connection for hypertension The Veteran has a current diagnosis of hypertension. Additionally, the Veteran's service treatment records reflect that he had "borderline" blood pressure readings during active service in the 1970s. The Veteran was noted to be taking medication for high blood pressure in May 1999 at entrance to his final period of active service, two decades after his previous period of active service. However, the first evidence of a diagnosis of hypertension is dated in June 2002, more than 1 year after his discharge from active service. A VA opinion has not been obtained with respect to the Veteran's claimed hypertension. Accordingly, remand is required to obtain competent medical evidence regarding the nature and etiology of the Veteran's diagnosed hypertension. 3. Entitlement to service connection for a respiratory condition is remanded. 4. Entitlement to service connection for a neck condition is remanded. The Veteran asserts that service connection is warranted for his claimed respiratory condition and neck condition. The Veteran's service treatment records reflect complaints of chest pain in September 1974 and March 1976. In November 1999, 4 months after service discharge, the Veteran noted he was concerned about "having funny lungs." During the August 2021 Board hearing, the Veteran indicated that he injured his neck while crawling in aircraft as part of his military duties. Treatment records document that in August 1999, 1 month after service discharge, the Veteran reported a neck sprain and spasms related to "work-related injuries." The Veteran's post-service treatment records reflect current diagnoses of asthma and C5, 6, 7 degenerative arthritis/left neck pain. As a VA opinion has not been obtained with respect to these issues, remand is required to acquire competent medical evidence regarding the nature and etiology of the Veteran's claimed respiratory and neck conditions. 5. Entitlement to a disability rating in excess of 10 percent for service-connected residuals of a right ulna fracture is remanded. 6. Entitlement to a disability rating in excess of 30 percent for service-connected tension headaches is remanded. The Veteran asserts that increased disability ratings are warranted for his service-connected residuals of a right ulna fracture and his service-connected headaches. The Veteran's most recent wrist examination was in March 2015 and his most recent headache examination was in August 2014. During the August 2021 Board hearing, the Veteran competently and credibly testified that his right wrist symptomatology has increased since his most recent examination. Additionally, the Veteran reported increased frequency and severity of his service-connected headaches. The Veteran's spouse supported his contentions. VA's duty to assist includes providing a new medical examination when a veteran provides evidence that a disability has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board finds that a remand is warranted to schedule the Veteran for VA examinations to determine the current severity of his disabilities. 7. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. A claim for a TDIU is part of a rating issue when such claim is raised by the record during the rating period. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, in connection with his claim for an increased disability rating for his service-connected tension headaches, the Veteran submitted a November 2014 statement from Dr. A.G. noting that the Veteran's headaches have cost him the loss of jobs and financial opportunities. Additionally, at the August 2021 Board hearing, the Veteran indicated that his headaches impacted his ability to work. The Board finds that the evidence has reasonably raised a claim for a TDIU. However, the existing record is not adequate to adjudicate he claim because the Board is unable to ascertain when, if ever, the Veteran's service-connected disabilities prevented him from obtaining and maintaining substantial gainful employment. See 38 C.F.R. § 4.16, Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). Therefore, the Board finds that a remand is required to obtain from the Veteran a Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability (TDIU Claims Form), to obtain his employment history. The matters are REMANDED for the following action: 1. Obtain the Veteran's outstanding military personnel records. Document all requests for information as well as all responses in the claims file. 2. Attempt to verify the Veteran's asserted in-service exposure to herbicide agents, to include verifying whether and where he served in Thailand. If more details are needed, contact the Veteran to request the information. If there is still insufficient information to verify exposure to herbicide agents, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA's inability to verify the in-service herbicide agent exposure. 3. Obtain a medical opinion from a VA clinician to determine the nature and etiology of the Veteran's diagnosed hypertension. If a VA examination is deemed warranted, one should be arranged. All indicated tests and studies should be completed. The examiner is asked to opine whether the Veteran's hypertension at least as likely as not (a 50 percent or greater probability) had its onset during service or within 1 year of service discharge (from either period) or is otherwise etiologically related to the Veteran's period of active service. The examiner is asked to specifically address the documented in-service history of "borderline" blood pressure in March 1976 and the August 1999 notation that he was prescribed medication for high blood pressure. A full rationale must be provided for any opinion offered. 4. Obtain a medical opinion from a VA clinician to determine the nature and etiology of the Veteran's claimed respiratory condition. If a VA examination is deemed warranted, one should be arranged. All indicated tests and studies should be completed. The examiner is asked to opine whether the Veteran has a respiratory condition, to include asthma, that at least as likely as not (a 50 percent or greater probability) had its onset during service or is otherwise etiologically related to the Veteran's period of active service. The examiner is asked to specifically address the documented in-service reports of pain in the chest. A full rationale must be provided for any opinion offered. 5. Obtain a medical opinion from a VA clinician to determine the nature and etiology of the Veteran's claimed neck condition. If a VA examination is deemed warranted, one should be arranged. All indicated tests and studies should be completed. The examiner is asked to opine whether the Veteran has a neck condition, to include C5, 6, 7 degenerative arthritis, that at least as likely as not (a 50 percent or greater probability) had its onset during service or within 1 year of service discharge (from either period) or is otherwise etiologically related to the Veteran's period of active service. The examiner is asked to specifically address the Veteran's reports of neck pain from crawling in aircraft and the August 1999 reports of neck sprain and spasms from "work-related duties". A full rationale must be provided for any opinion offered. 6. Schedule the Veteran for a VA examination to determine the current severity of his service-connected residuals of a right ulna fracture. A copy of the claims file, to include a copy of this remand, must be available to and reviewed by the examiner, in conjunction with the examination. The examiner should provide a full description of the Veteran's right wrist disability and report all signs and symptoms necessary for evaluating the disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to the disability and discuss the effect of the disability on any occupational functioning and activities of daily living. 7. Schedule the Veteran for a VA examination to determine the current severity of his service-connected tension headaches. A copy of the claims file, to include a copy of this remand, must be available to and reviewed by the examiner, in conjunction with the examination. The examiner should provide a full description of the Veteran's headache disability and report all signs and symptoms necessary for evaluating the disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to the disability and discuss the effect of the disability on any occupational functioning and activities of daily living. 8. Obtain from the Veteran and associate with the claims file a fully executed VA Form 21-8940, or TDIU claims form. In this regard, request for the Veteran to provide a detailed statement as to his employment history since service along with his duties at those places of employment, if he is working in a protected environment and/or whether he earns more than the poverty level, whether he continues to be employed, the approximate date he stopped working full and part time, and how his service-connected disabilities prevent him from obtaining and maintaining substantial gainful employment in both fields that are sedentary and physically demanding. Any help from the Veteran and/or his representative in obtaining this information would be appreciated. The form cited above is available on-line. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Connor, 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.