Citation Nr: 21010334 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 18-19 011 DATE: February 24, 2021 ORDER New and material evidence having been received, the claim of service connection for burn injury residuals to the hands and fingers is reopened. Service connection for burn injury residuals to the hands and fingers is granted. Service connection for diabetes mellitus, Type II (diabetes) is granted. FINDINGS OF FACT 1. In a September 2010 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for burn injury residuals to the hands and fingers; a timely notice of disagreement (NOD) was not filed, and no new and material evidence was received within the appeal period. 2. Additional evidence received since the September 2010 rating decision is new, relates to an unestablished fact necessary to substantiate the claim of service connection for burn injury residuals to the hands and fingers, and raises a reasonable probability of substantiating the claim. 3. The competent and probative evidence is at least in equipoise as to whether burn injury residuals to the hands and fingers had its onset in or is otherwise related to the Veteran’s period of active service. 4. The competent and probative evidence is at least in equipoise as to whether diabetes is related to in-service herbicide exposure from October 1968 to October 1969 at Korat Royal Thai Air Force Base, Thailand. 5. The Veteran has a current diagnosis of diabetes which is presumed related to his in-service herbicide exposure. CONCLUSIONS OF LAW 1. The September 2010 decision denying service connection for burn injury residuals to the hands and fingers is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 2. New and material evidence has been received since the September 2010 decision to reopen the claim of service connection for burn injury residuals to the hands and fingers. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for burn injury residuals to the hands and fingers have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for diabetes have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1968 to February 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). During the course of the appeal, a March 2018 rating decision granted service connection for posttraumatic stress disorder (PTSD). The grant of service connection for PTSD constitutes a full grant of the benefit sought on appeal. Accordingly, the issue of service connection for PTSD is no longer on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). In January 2021, the Veteran testified at a Board videoconference hearing. A transcript of the hearing has been associated with the virtual file. New and Material Evidence 1. Whether new and material evidence has been received to reopen the claim of service connection for burn injury residuals to the hands and fingers. Generally, a claim which has been denied in a final decision by an AOJ may not thereafter be reopened and allowed. 38 U.S.C. § 7105(b). If, however, new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary must reopen the claim and review its former disposition. 38 U.S.C. § 5108. To be considered new, evidence cannot have been previously submitted to agency decision makers or be cumulative or redundant of evidence of record at the time of the last prior final denial. To be material, evidence must, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claim, and 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 low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In deciding whether new and material evidence has been submitted, the Board considers evidence submitted since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). After reviewing the record, the Board finds that new evidence has been received since the final prior decision, and such evidence is material to the issue of service connection for burn injury residuals to the hands and fingers. In September 2010, the AOJ denied service connection for burn injury residuals to the hands and fingers for lack of an in-service event or injury. The Veteran did not file a timely NOD and no new and material evidence was received within the period; therefore, the September 2010 decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 3.104, 3.156(b), 20.1103. The Board will therefore consider evidence received since the September 2010 decision. In January 2021, the Veteran testified his hands and fingers were burned during basic training when his commanding officer held both his hands in sink filled with scolding hot water and ordered him to wash the dishes. The Veteran further stated once the officer released his hands, he immediately sought medical attention and observed blisters forming on both hands. See January 2021, Hearing transcript. The Board finds that the Veteran’s testimony is new and directly pertains to the basis for the prior final denial, by addressing whether there was an in-service injury or event concerning his hands and fingers. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303(d). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). 2. Service connection for burn injury residuals to the hands and fingers. The Veteran contends he burned his hands in scalding hot water while on kitchen patrol duty during basic training and has continued to suffer from burn injury residuals after discharge from service. Specifically, the Veteran stated he was ordered to wash dishes. After placing and removing his hands in the scolding hot water dish water three times, his commanding officer held his hands in the water. After a few moments, the Veteran stated he was able to snatch his hands out of the water and immediately went to the dispensary for treatment. The Veteran stated that, while walking to the dispensary, he observed blisters forming on both hands. The Veteran contends his hands were wrapped in bandages for over a month. See January 2021, Hearing transcript; March 2005, VA Form 21-526. After review of the record and applicable law, the Board finds the criteria for service connection burn injury residuals of the hands and fingers have been met. The record contains a competent diagnosis of diabetes. See April 2016, VA treatment record. The Board, accordingly, finds competent evidence of a current disorder. VA treatment records indicate the Veteran suffered from a burn during basic training while doing kitchen patrol. The Veteran also complained of chronic bilateral hand stiffness, swelling, weakness, and hot and cold sensitivity. A VA treatment provider noted diffusely swollen hands, numerous lipomas, mild scaling at interdigital web spaces, and grip strength at four out of five. See VA treatment records dated June 2005 and April 2016. VA received two photographs of the Veteran with his hands wrapped in bandages. The first photograph depicts the Veteran in a military uniform with bandaged hands and his full name displayed. The second is of the Veteran in a photobooth showing both of his bandaged hands. The Veteran stated both photographs were taken in 1968 during service. See January 2021, Hearing transcript; Photographs dated March 2005 and September 2012. A buddy statement from L.V. indicates he served with the Veteran in basic training and was present when the Veteran’s hands were burned. L.V. stated he personally observed second to third degree burns and large puffy blisters on both of the Veteran’s hands, as well as both hands wrapped in bandages. See Buddy statements dated March 2010 and January 2020. In light of the foregoing, the Board finds that the weight of the competent and probative evidence is at least in equipoise as to whether burn injury residuals of the hands and fingers had its onset in or is otherwise related to the Veteran’s period of active service. The Board finds the lay statements of L.V. and the Veteran regarding the in-service burn injury to the hands and fingers and the Veteran’s statements of continuity of bilateral hand discomfort since discharge from active service to be competent, credible, and highly probative. See Jandreau, 492 F.3d at 1377. Resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for burn injury residuals of the hands and fingers is warranted. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-58. 3. Service connection for diabetes. If a veteran was exposed to an herbicide agent during active service, the diseases set forth in 38 C.F.R. § 3.309(e), including diabetes, will be presumed to be related to such service if they become manifest to a degree of 10 percent or more at any time after service, with an exception not applicable to this case. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(ii). A May 2010 VA Compensation and Pension Bulletin (C&P Bulletin), after reviewing a declassified Vietnam era Department of Defense document titled “Project CHECO Southeast Asia Report: Base Defense in Thailand,” determined there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. According to the C&P Bulletin, when herbicide-related claims involving Thailand service are received, VA should evaluate the treatment and personnel records to determine whether a veteran’s service activities involved duty on or near the perimeter of the military base where the Veteran was stationed. Exposure to an herbicide agent may be considered on a “direct/facts-found basis” if a Veteran served with the U.S. Air Force in Thailand during the Vietnam Era, namely between January 9, 1962, and ending on May 7, 1975, at one of the Royal Thai Air Force Bases as an Air Force security policeman, security patrol dog handler, member of the security police squadron, or “otherwise near the air base perimeter” as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. See Compensation and Pension Bulletin, New Procedures for Claims Based on Herbicide Exposure in Thailand and Korea (May 2010). The Veteran contends that diabetes is the result of herbicide exposure from performing his daily duties at or near the perimeter of the Korat Royal Thai Air Force Base from October 1968 to October 1969. See January 2021, Hearing transcript. After review of the record and applicable law, the Board finds the criteria for service connection for diabetes based on herbicide exposure have been met. The record contains a competent diagnosis of diabetes. See April 2016, VA treatment record. The Board, accordingly, finds competent evidence of a current disorder. The Veteran’s military personnel records indicate he was stationed at Camp Friendship in Korat, Thailand with the 133rd Medical Group from October 1968 to October 1969 as a personnel specialist. See October 1968, Military personnel record; January 2017, DD-214. At the Board hearing, the Veteran testified that his duties as a personnel specialist while in Korat, Thailand included driving his commanding officer to the 31st field hospital located on the perimeter of the Korat Royal Thai Air Force Base (AFB). The Veteran stated he drove to the hospital at least once per day during the year he was stationed in Korat and waited in the car for 20 to 45 minutes until his commanding officer was ready to leave. The Veteran also showed a photograph of him taken near the perimeter of the Korat Royal Thai AFB with no surrounding foliage or vegetation. January 2021, Hearing transcript. In light of the foregoing, the Board finds that the weight of the competent and probative evidence is at least in equipoise as to whether diabetes is related to in-service herbicide exposure at Korat Royal Thai AFB from October 1968 to October 1969. The Board finds the Veteran’s lay statements regarding his daily duties that placed him at the perimeter of Korat Royal Thai AFB to be competent, credible, and highly probative. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran’s duties routinely placed him at or near the perimeter of the Korat Royal Thai AFB during the Vietnam era. The Veteran is therefore presumed to have been exposed to herbicide agents during service. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.307(a)(6). Service connection is therefore warranted for diabetes, which is included in the list of disorders that are presumed to be related to in-service herbicide agent exposure. 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Straughn, Associate 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.