Citation Nr: 21023566 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 18-04 499 DATE: April 21, 2021 ORDER As new and material evidence has been received sufficient to reopen a claim of service connection for a heart disorder, the petition to reopen is granted. As new and material evidence has been received sufficient to reopen a claim of service connection for hypertension, the petition to reopen is granted. As new and material evidence has been received sufficient to reopen a claim of service connection for a blood disorder, now claimed as Buerger’s disease of the right lower extremity, the petition to reopen is granted. As new and material evidence has been received sufficient to reopen a claim of service connection for a blood disorder, now claimed as Buerger’s disease of the left lower extremity, the petition to reopen is granted. As new and material evidence has been received sufficient to reopen a claim of service connection for a respiratory disorder, claimed as chronic obstructive pulmonary disease (COPD), the petition to reopen is granted. REMANDED Entitlement to service connection for a heart disorder is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a blood disorder, claimed as Buerger's disease, right lower extremity is remanded. Entitlement to service connection for a blood disorder, claimed as Buerger's disease, left lower extremity is remanded. Entitlement to service connection for a respiratory disorder, claimed as COPD, to include lung cancer is remanded. FINDINGS OF FACT 1. A June 2012 rating decision denied service connection for COPD. The Veteran received notice of this decision and did not appeal or file new and material evidence within one year. 2. An August 2013 rating decision denied service connection for a heart disorder, hypertension, and a blood disorder in the bilateral legs. The Veteran received notice of this decision and did not appeal or file new and material evidence within one year. 3. The Veteran filed new claims for service connection in June 2015 and November 2016. 4. The evidence received since the final rating decision is new and material and relates to an unestablished fact necessary to substantiate the Veteran’s claim of service connection for a heart disorder. 5. The evidence received since the final rating decision is new and material and relates to an unestablished fact necessary to substantiate the Veteran’s claim of service connection for hypertension. 6. The evidence received since the final rating decision is new and material and relates to an unestablished fact necessary to substantiate the Veteran’s claim of service connection for Buerger's Disease, right lower extremity. 7. The evidence received since the final rating decision is new and material and relates to an unestablished fact necessary to substantiate the Veteran’s claim of service connection for Buerger's disease, left lower extremity. 8. The evidence received since the final rating decisions is new and material and relates to an unestablished fact necessary to substantiate the Veteran’s claim of service connection for a respiratory disorder, claimed as COPD, to include lung cancer. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the finally denied claim of entitlement to service connection for a heart disorder and the petition to reopen is granted. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. New and material evidence has been received to reopen the finally denied claim of entitlement to service connection for hypertension and the petition to reopen is granted. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. New and material evidence has been received to reopen the finally denied claim of entitlement to service connection for Buerger's Disease, right lower extremity, and the petition to reopen is granted. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 4. New and material evidence has been received to reopen the finally denied claim of entitlement to service connection for Buerger’s Disease, left lower extremity and the petition to reopen is granted. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 5. New and material evidence has been received to reopen the finally denied claim of entitlement to service connection for a respiratory disorder claimed as COPD, to include lung cancer and the petition to reopen is granted. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from March 1963 to March 1965. New and Material Evidence 1. Whether new and material evidence has been received sufficient to reopen a claim of service connection for a heart disorder 2. Whether new and material evidence has been received sufficient to reopen a claim of service connection for hypertension 3. Whether new and material evidence has been received sufficient to reopen a claim of service connection for a blood disorder, now claimed as Buerger’s disease of the right lower extremity 4. Whether new and material evidence has been received sufficient to reopen a claim of service connection for a blood disorder, now claimed as Buerger’s disease of the left lower extremity 5. Whether new and material evidence has been received sufficient to reopen a claim of service connection for chronic obstructive pulmonary disease (COPD) A final rating decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. The Secretary must reopen a claim when new and material evidence is presented or secured with respect to that claim Knightly v. Brown, 6 Vet. App. 200 (1994) New evidence means existing 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 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). Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). Finally, 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). A June 2012 rating decision denied the Veteran's claim of service connection for COPD. An August 2013 rating decision denied claims of service connection for hypertension, COPD, a heart disorder, and a blood disorder. The Veteran did not appeal these decisions and did not submit new and material evidence within one year. Therefore, these decisions are final. In June 2015, the Veteran filed new claims of compensation for service connection for hypertension, COPD, a heart disorder, and bilateral Buerger’s disease. In November 2016, the Veteran filed a claim of service connection for lung cancer. Since the August 2013 rating decision, the new evidence consists of the Veteran's statements that his disorders are secondary to exposure to asbestos and herbicides in service. After having carefully considered the matter, the Board believes that the additionally added evidence referred to above is new and material evidence which serves to reopen the claim. In particular, the Procopio decision, discussed in the remand below, maintains that a Veteran does not have to have set foot on the ground in Vietnam in order to be considered to have “served in Vietnam” and be presumed to have been exposed to herbicides. As this evidence, taken as true, tends to support the Veteran’s claims, the Board finds it is material to the Veteran’s claims and it raises a reasonable possibility of substantiating the claims of service connection. Therefore, his petitions to reopen claims of service connection for hypertension, COPD, a heart disorder, and bilateral Buerger’s disease are granted. REASONS FOR REMAND 1. Entitlement to service connection for a heart disorder is remanded. 2. Entitlement to service connection for hypertension is remanded. 3. Entitlement to service connection for Buerger’s Disease, right lower extremity is remanded. 4. Entitlement to service connection for Buerger’s disease, left lower extremity is remanded. 5. Entitlement to service connection for a respiratory disorder claimed as COPD, to include lung cancer is remanded. The Veteran contends that his disorders are as a result of herbicide exposure during service aboard the USS Platte in October 1963. An October 2017 formal finding showed that the Veteran’s ship does not show being stationed in Vietnam and the Veteran’s personnel records do not show service in Vietnam. Since that finding, the Federal Circuit held that service in the Republic of Vietnam includes service in the territorial sea extending 12 nautical miles from the shores of Vietnam. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). As the formal finding only evaluated whether the Veteran had shore duty in Vietnam, remand is necessary to determine whether the USS Platte was ever within 12 nautical miles from the shores of Vietnam while the Veteran was on board the ship. Deck logs or any other official documentation of the ship’s location while the Veteran was on board should be obtained. The matters are REMANDED for the following action: 1. Contact any appropriate entity, to include the Joint Services Records Research Center (JSRRC), to obtain deck logs and any other pertinent information, from the USS Platte to determine whether the vessel was ever within 12 nautical miles of the coast of Vietnam while the Veteran was on board the ship. (The Veteran reported this to be in October 1963. Available personnel records show he had 4 months and 19 days of foreign or sea service. They also appear to reveal he was assigned to the USS Platte in or around June or July of 1963. Every effort should be made to determined specifically when he was on board and whether the ship was in the territorial waters of Vietnam during that time.) 2. If the evidence shows exposure to herbicides, adjudicate the claims of service connection on a presumptive basis as well as a secondary basis. If it is   determined that additional examinations are needed in view of the information otherwise developed, such examinations should be scheduled in accordance with applicable procedures. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shana Z. Siesser, 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.