Citation Nr: 21007474 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-23 616 DATE: February 9, 2021 ORDER New and material evidence has been received to reopen a claim of service connection for diabetes mellitus. To that extent, the claim is granted. Entitlement to service connection for diabetes mellitus as due to herbicide exposure is granted. FINDINGS OF FACT 1. An August 2006 rating decision denied service connection for diabetes mellitus. 2. Evidence added to the record since the August 2006 rating decision provides a reasonable possibility of substantiating the claim of service connection for diabetes mellitus. 3. The Veteran was presumptively exposed to herbicides while serving onboard the USS Henry B. Wilson in the territorial waters of the Republic of Vietnam CONCLUSIONS OF LAW 1. The August 2006 rating decision that denied service connection for diabetes mellitus is final. 3 8U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received since the August 2006 rating decision is new and material, and the claim for service connection for diabetes mellitus is reopened. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicides have been met. 38 U.S.C. §§ 1110, 1111, 1116A, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1963 to October 1983. In February 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. This decision is being prepared under the Board’s “One Touch” hearing program; a copy of the transcript of that hearing will be added to the Veteran’s file in the normal course of business. In the November 2014 rating decision on appeal, the AOJ reopened the claim for service connection for hypertension and denied the claim on de novo review. Irrespective of the AOJ’s action, the Board has a jurisdictional responsibility to determine whether a previous claim is properly reopened. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Barnet v Brown, 83 F.3d 1380 (Fed. Cir. 1996). Claim to Reopen The Veteran seeks to reopen his claim of service connection for diabetes mellitus to include as due to exposure to herbicides. A claim of service connection for diabetes mellitus was previously denied in an August 2006 rating decision because the evidence did not reflect that the Veteran was physically present on the ground in the Republic of Vietnam and a presumption of herbicide exposure could not be provided. The question before the Board is whether new and material evidence has been submitted to reopen the claims. Evidence of record at the time of the August 2006 rating decision included the Veteran’s service personnel records which reflect he served abord the USS Henry B. Wilson in the territorial waters of the Republic of Vietnam. Since the August 2006 rating decision, on January 1, 2019, the Blue Water Navy Act went into effect extending the existing presumption of herbicide (Agent Orange) exposure under 38 U.S.C. § 1116, to include Veterans who served “offshore of the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975.” 38 U.S.C. § 1116A. The Board finds this evidence is “new” in that it had not been previously submitted. Moreover, the evidence is “material” because it relates to an unestablished fact necessary to substantiate the Veteran’s claim. Since the August 2006 rating decision, the record reflects a presumption of exposure to herbicides during service. This evidence is neither cumulative nor redundant of the evidence of record at the time of the August 2006 rating decision and raises a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board will consider the claim de novo. Service connection The Veteran contends that his diabetes mellitus was caused by exposure to herbicides while serving onboard the USS Henry B. Wilson in the territorial waters of Vietnam. A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307, 3.309. Diabetes mellitus is among the designated diseases. 38 C.F.R. § 3.309 (e). As noted above, the Veteran the presumption of herbicide exposure is provided to Veterans who served “offshore of the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975.” 38 U.S.C. § 1116A. The Veteran’s private and VA medical records reflect he has a current diagnosis of diabetes mellitus. His military personnel records show that the Veteran served in the territorial waters of Vietnam on the USS Henry B. Wilson. He served aboard the USS Henry B. Wilson from July 16, 1966 to February 1, 1969, and the ship was docked at the Da Nang pier on April 2, 1967 and September 29, 1971. Territorial waters are defined as 12 nautical miles from the shore and are now included in the presumption for herbicide exposure. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). 38 U.S.C. § 1116A Accordingly, the Board finds that the evidence reflects the Veteran’s presumed exposure to herbicides and has been diagnosed with diabetes mellitus. Thus, service connection is warranted for diabetes mellitus as presumptively related to in-service herbicide exposure. 38 C.F.R. § 3.309. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Eric Struening 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.