Citation Nr: 21026002 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 19-31 333 DATE: April 29, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for a heart disability, to include as due to herbicide agent exposure, is reopened. REMANDED Entitlement to service connection for a heart disability, to include as due to herbicide agent exposure, is remanded. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide agent exposure, is remanded. FINDINGS OF FACT 1. A January 2011 rating decision denied service connection for ischemic heart disease. The Veteran was notified of this decision and of his appellate rights by letter dated January 31, 2011. 2. The Veteran did not submit a notice of disagreement within one year of the mailing of notice of the January 2011 rating decision, and no new and material evidence was obtained or received by VA within this one-year time period. 3. Additional evidence received since the January 2011 rating decision is neither cumulative nor redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the Veteran’s claim for service connection for a heart disability. CONCLUSIONS OF LAW 1. The January 2011 rating decision is final with regard to the claim for service connection for ischemic heart disease. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been submitted to reopen the claim for service connection for a heart disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty from November 1968 to June 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2018 rating decision. While it is unclear whether the Agency of Original Jurisdiction (AOJ) has reopened the Veteran’s claim for service connection for a heart disability, the Board must determine of its own accord whether new and material evidence is of record to reopen the claim before it may consider it on the merits. Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). 1. New and material evidence having been received, the claim for entitlement to service connection for a heart disability, to include as due to herbicide agent exposure, is reopened. A determination on a claim by the AOJ of which the claimant is properly notified is final if no notice of disagreement is filed within the prescribed time period, or an appeal is not perfected pursuant to 38 C.F.R. § 19.52. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103; see 38 C.F.R. §§ 19.52, 20.200, 20.201 (setting forth requirements and timeframe for initiating and perfecting an appeal). To reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial, regardless of the basis for that denial. See 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 282-83 (1996) (holding that § 5108 requires a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened). VA regulation defines “new and material evidence” as follows. “New evidence” means evidence not previously submitted to agency decision makers, and “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. 38 C.F.R. § 3.156(a), Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In order to warrant reopening, the new evidence must neither be 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); see Shade, 24 Vet. App. at 117 (holding that there is a “low threshold” for reopening). To determine whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). If new and material evidence is received within one year after the date of mailing of a decision from AOJ, it prevents that decision from becoming final and will be “considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.” 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009) (holding that new and material evidence received within one year of a decision from the AOJ prevents that decision from becoming final); 38 C.F.R. § 3.400(q) (providing that, as to new and material evidence received within appeal period, “effective date will be as though the former decision had not been rendered”). The Veteran’s claim for service connection for ischemic heart disease was last denied in a January 2011 rating decision. The Veteran was notified of the January 2011 rating decision and of his appellate rights by letter dated January 31, 2011. The Veteran did not appeal. See 38 C.F.R. §§ 19.52, 20.200, 20.201. Further, no new and material evidence was received within one year of the date of mailing of the rating decision. See 38 C.F.R. § 3.156(b). Accordingly, the January 2011 rating decision is final with regard to this claim for service connection. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran submitted a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits in June 2018 seeking service connection for a heart disability as due to herbicide agent exposure. In the Veteran’s February 2019 notice of disagreement, he advised that he was present in the Republic of Vietnam during the Vietnam Era on two occasions. In particular, the Veteran stated that he landed in the Republic of Vietnam at Ton Son Nhut Air Force Base near Saigon en route to and from Thailand. Id. The Veteran provided that the second instance of when he was in the Republic of Vietnam was when he was medically evacuated to the Philippines and then returned to Thailand. Id. The Board presumes the credibility of the evidence as the Veteran is competent to make this statement. Duran, 7 Vet. App. at 220; Justus, 3 Vet. App. at 513; Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge). The above evidence was not of record at the time of the January 2011 rating decision. Further, this evidence relates to an unestablished fact necessary to support the claim, namely an in-service incurrence or aggravation of a disease or injury. The Board finds the above evidence is both new and material. See 38 C.F.R. § 3.156(a); see also 38 C.F.R. § 3.303; Shade, 24 Vet. App. at 122. Therefore, the Veteran’s claim for service connection is reopened. REASONS FOR REMAND Unfortunately, the Veteran’s claims for service connection must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claims for service connection, so he is afforded every possible consideration. 1. Entitlement to service connection for a heart disability, to include as due to herbicide agent exposure, is remanded. 2. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide agent exposure, is remanded. The Veteran’s service personnel records demonstrate that he was stationed at U-Tapao Royal Thai Air Force Base in Thailand during the Vietnam Era. While the Veteran maintains that he made brief stops in the Republic of Vietnam during the Vietnam Era, his service personnel records and service treatment records do not demonstrate that he served in the Republic of Vietnam during the Vietnam Era. Additional development must be undertaken to determine whether the Veteran was exposed to herbicide agents while he served in Thailand during the Vietnam Era. Special consideration of herbicide exposure on a factual basis has been extended to Veterans whose duties placed them on or near the perimeters of Thailand military bases. More specifically, if a Veteran served in one of the Royal Thai Air Force Bases in U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat or Don Muang, as an Air Force security policeman, security patrol dog handler, a member of a security police squadron, or otherwise near the air base perimeter as shown by the evidence of daily work activities, performance evaluation reports, or other credible evidence, Compensation Service will concede herbicide exposure on a direct/facts-found basis. See VA Adjudication Procedures Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H, Topic 5 (“Special Consideration for Claims Based on Herbicide Exposure in Thailand During the Vietnam Era”). In terms of the Veteran’s alleged exposure to herbicide agents in Thailand, the Veteran’s service personnel records demonstrate that he was stationed at U-Tapao Royal Thai Air Force Base in Thailand from February 13, 1970 to November 13, 1970, as an Aircraft Pneudraulic Repairman, as well as a Distribution Clerk responsible for picking up and delivering all outgoing and incoming correspondence and messages for the Military Personnel Branch. Therefore, considering the Veteran’s service at U-Tapao Royal Thai Air Force Base in Thailand during the Vietnam Era, the Board finds that further development is necessary to determine whether he was exposed to herbicides or any other toxic chemicals while there. See, e.g., M21-1, Part IV, Subpart ii, Chapter 1, Section H, Topic 5.b (reflecting that several items of development should be performed in the case of a Veteran with service in Thailand, including, if necessary, referral of the case to the United States Joint Services Records Research Center (JSRRC) for verification of exposure to herbicides); see also VBA Fast Letter 09-20, “Developing for Evidence of Herbicide Exposure in Haas-Related Claims from Veterans with Thailand Service during the Vietnam Era” (May 6, 2009). Further, an individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served aboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam Era shall be presumed to have been exposed during such service to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(v). The Veteran’s service personnel records provide that while serving in the Air Force as an Aircraft Pneumatic Repairman, his duties included installing, repairing, overhauling, and modifying aircraft pneudraulic systems and components and associated Aerospace Ground Equipment. The Veteran’s service treatment records also demonstrate that he sustained an injury while performing maintenance on an airplane. Thus, a remand is necessary to determine whether he regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during Vietnam Era. Evidence indicates that there may be outstanding relevant VA treatment records. The Veteran’s private treatment records from Kaiser Permanente provides that he underwent a cardiac catherization at a VA Hospital in January 1984. These VA treatment records are not contained in the Veteran’s claims folder. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the Veteran’s claims for service connection on appeal. A remand is required to allow VA to obtain them. The matters are REMANDED for the following action: 1. Obtain the Veteran’s complete VA treatment records, to include, but not limited to, records associated with his cardiac catherization at a VA Hospital in January 1984. 2. Request that the Veteran provide any additional information about the approximate dates, location, and nature of the asserted herbicide exposure, such as the approximate dates of any assignments or tours of duty in Vietnam, and/or the nature of any “perimeter duty” to which the Veteran assigned while stationed in Thailand. 3. Request from the United States Air Force and/or any other appropriate entity (as determined by the AOJ within its discretion) the Veteran’s complete service personnel records, to include all Travel Vouchers, as well as his complete service treatment records, to include all clinical records. As noted above, the Veteran advised that he was present in the Republic of Vietnam during the Vietnam Era on two occasions: (a) he stated that he landed in the Republic of Vietnam at Ton Son Nhut Air Force Base near Saigon en route to and from Thailand; and (b) he stated that the second instance he was in the Republic of Vietnam was when he was medically evacuated to the Philippines and then returned to Thailand, again changing planes near Saigon. All appropriate development should be undertaken to verify these assertions. 4. After all records and/or responses received from each contacted entity have been associated with the Veteran’s claims folder, attempt to verify his alleged herbicide agent exposure during his overseas service by submitting a request to the Joint Services Records Research Center (JSRRC) for verification of such exposure. See VA Adjudication Procedures Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H, Topic 1 (“Developing Claims Based on Herbicide Exposure in the RVN”) and Topic 5 (“Special Consideration for Claims Based on Herbicide Exposure in Thailand During the Vietnam Era”) (setting forth procedures for verification of the type required in the instant case). Specifically, a determination should be made as to the following: (a.) Whether the Veteran’s duties in Thailand would have involved going to the base perimeter. In this regard, the Veteran’s service personnel records show that his Military Occupational Specialties were both as (i) an Aircraft Pneudraulic Repairman and (ii) as a Distribution Clerk responsible for picking up and delivering all outgoing and incoming correspondence and messages for the Military Personnel Branch. (b.) Whether the Veteran regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during Vietnam Era 5. Any additional action necessary for independent verification of the Veteran’s purported herbicide agent exposure, to include follow-up action or the submission of additional requests for information to any other appropriate entity (e.g. the National Personnel Records Center (NPRC); the Records Management Center (RMC); Joint Services Records Research Center (JSRRC); the Defense Personnel Records Information Retrieval System (DPRIS); and/or the Air Force Historical Research Agency (AFHRA)), should be accomplished. If the search for corroborating information or records leads to negative results, notify the Veteran and his representative and afford him the opportunity to respond. All requests and responses received should be associated with the Veteran's claims folder. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean Mussey, 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.