Citation Nr: 21021520 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 17-50 605 DATE: April 13, 2021 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for diabetes mellitus, type II, including secondary to in-service exposure to polychlorinated biphenyl (PCBs) and herbicide agents, is reopened. New and material evidence having been submitted, the claim of entitlement to service connection for Guillain-Barre syndrome, including secondary to in-service exposure to PCBs and herbicide agents, is reopened. New and material evidence having been submitted, the claim of entitlement to service connection for heart disability, including secondary to in-service exposure to PCBs and herbicide agents, is reopened. New and material evidence having been submitted, the claim of entitlement to service connection for Parkinson’s disease, including secondary to in-service exposure to PCBs and herbicide agents, is reopened. REMANDED Entitlement to service connection for diabetes mellitus, type II, including secondary to in-service exposure to PCBs and herbicide agents, is remanded. Entitlement to service connection for Guillain-Barre syndrome, including secondary to in-service exposure to PCBs and herbicide agents, is remanded. Entitlement to service connection for heart disability, including secondary to in-service exposure to PCBs and herbicide agents, is remanded. Entitlement to service connection for Parkinson’s disease, including secondary to in-service exposure to PCBs and herbicide agents, is remanded. FINDINGS OF FACT 1. In a November 2015 rating decision, the RO denied the Veteran’s original claims seeking entitlement to service connection for diabetes mellitus, Guillain-Barre syndrome, heart disability, and Parkinson’s disease. Notice of this decision was sent to the Veteran that same month. 2. The Veteran did not perfect an appeal of the November 2015 rating decision or submit new and material evidence during the appeal period, and that decision is final. 3. Some of the evidence received since the November 2015 rating decision is new and relates to unestablished facts necessary to substantiate the Veteran’s claims for entitlement to service connection for diabetes mellitus, Guillain-Barre syndrome, heart disability, and Parkinson’s disease. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for diabetes mellitus, type II, including secondary to in-service exposure to PCBs and herbicide agents. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for Guillain-Barre syndrome, including secondary to in-service exposure to PCBs and herbicide agents. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 3. New and material evidence has been received to reopen the claim of entitlement to service connection for heart disability, including secondary to in-service exposure to PCBs and herbicide agents. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 4. New and material evidence has been received to reopen the claim of entitlement to service connection for Parkinson’s disease, including secondary to in-service exposure to PCBs and herbicide agents. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1967 to December 1969. For his meritorious service, the Veteran was awarded (among other decorations) the Army Commendation Medal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a video conference hearing held before the undersigned Veterans Law Judge. A transcript of this hearing has been added to the record. New and Material Claims Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In a November 2015 rating decision, the RO denied the Veteran’s original claims seeking entitlement to service connection for diabetes mellitus, Guillain-Barre syndrome, heart disability, and Parkinson’s disease. Notice of this decision was sent to the Veteran that same month. The Veteran did not submit a timely notice of disagreement or new and material evidence during the appeal period, and the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103. Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The provisions of 38 C.F.R. § 3.156(a) create a low threshold for finding new and material evidence, and view the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. New and material evidence has been submitted to reopen a claim of entitlement to service connection for diabetes mellitus, type II, including secondary to inservice exposure to PCBs and herbicide agents. 2. New and material evidence has been submitted to reopen a claim of entitlement to service connection for Guillain-Barre syndrome, including secondary to inservice exposure to PCBs and herbicide agents. 3. New and material evidence has been submitted to reopen a claim of entitlement to service connection for heart disability, including secondary to inservice exposure to PCBs and herbicide agents. 4. New and material evidence has been submitted to reopen a claim of entitlement to service connection for Parkinson’s disease, including secondary to inservice exposure to PCBs and herbicide agents. The evidence considered at the time of the November 2015 rating decision included service treatment records, VA treatment records, and statements from the Veteran. The Veteran’s claims were denied in November 2015 because the Veteran’s claimed disabilities were not shown to be related to his military service, including his alleged inservice exposure to herbicide agents, including Agent Orange. Since the November 2015 rating decision, the Veteran submitted a medical opinion letter from E.M., M.D., a VA neurologist, linking the Veteran’s claimed disabilities with his alleged in-service exposure to PCBs. As the threshold to reopen the claim is low, the Board finds that this evidence, when considered in conjunction with prior evidence, is sufficiently new and material, and the claims of entitlement to service connection for diabetes mellitus, Guillain-Barre syndrome, heart disability, and Parkinson’s disease are reopened. REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus, type II, including secondary to inservice exposure to PCBs and herbicide agents, is remanded. 2. Entitlement to service connection for Guillain-Barre syndrome, including secondary to inservice exposure to PCBs and herbicide agents, is remanded. 3. Entitlement to service connection for heart disability, including secondary to inservice exposure to PCBs and herbicide agents, is remanded. 4. Entitlement to service connection for Parkinson’s disease, including secondary to inservice exposure to PCBs and herbicide agents, is remanded. The Veteran’s contends that he developed diabetes mellitus, Guillain-Barre syndrome, heart disability, and Parkinson’s disease secondary to in-service exposure to PCBs and herbicide agents. In support of his claim, the Veteran has submitted a VA Public Health article addressing, in pertinent part, a potential exposure to veterans who served at Fort McClellan to airborne PCBs from an off-post Monsanto chemical plant operated south of the base in Anniston. The same article indicated, however, that the Agency for Toxic Substances and Disease Registry published an assessment of the potential health risks caused by airborne PCBs in Anniston and concluded that the concentrations found were not expected to result in an increased cancer risk or other harmful health effects in people living in the neighborhoods outside the perimeter of the former PCB manufacturing facility. The evidence of record is unclear as to what the level of PCBs exposure the Veteran may have experienced during service, if any. Moreover, the lack of any of firm evidence addressing the Veteran’s actual level of PCBs exposure during service brings into question the medical opinions which are based that claimed exposure. Under these circumstances, the RO should determine whether or not, and if possible, to what extent, the Veteran was exposed to PCBs while stationed at Fort McClellan, Alabama, throughout the month of June 1968. Appropriate development through the U.S. Joint Services Records Research Center (JSRRC) or other appropriate agency should be undertaken to assess the likelihood and extent of the Veteran's exposure to PCBs during his service at Fort McClellan throughout the month of June 1968. If it is determined that the Veteran was exposed to PCBs while stationed at Fort McClellan, a medical opinion should be obtained to determine whether such exposure caused the conditions claimed on appeal. The matters are REMANDED for the following action: 1. Conduct any development necessary to determine whether or not, and to what extent, the Veteran was exposed to airborne PCBs when he was in the service, including when stationed at Fort McClellan, Alabama, in June 1968. This should include appropriate development with the JSRRC and/or other appropriate agency to assess the likelihood and extent of the Veteran's exposure at Fort McClellan to PCBs. 2. Thereafter, if there is evidence that the Veteran was exposed to PCBs, arrange for a medical professional with appropriate expertise to review the relevant documents in the VA claims folder and provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that a relationship, if any, exists between the Veteran's diabetes mellitus, Guillain-Barre syndrome, heart disability, and Parkinson’s disease and his military service, with specific consideration of exposure to PCBs while stationed at Fort McClellan, Alabama in June 1968. A detailed explanation (rationale), with supporting medical literature, is requested for all opinions provided. By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Yates, 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.