Citation Nr: 21026806 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-17 072 DATE: May 4, 2021 ORDER New and material evidence has been received to reopen a claim for service connection for diabetes mellitus. New and material evidence has been received to reopen a claim for service connection for a prostate condition. New and material evidence has been received to reopen a claim for service connection for peripheral neuropathy of bilateral upper extremities. New and material evidence has been received to reopen a claim for service connection for peripheral neuropathy of bilateral lower extremities. REMANDED Entitlement to service connection for ischemic heart disease is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for a prostate condition is remanded. Entitlement to service connection for peripheral neuropathy of bilateral upper extremities is remanded. Entitlement to service connection for peripheral neuropathy of bilateral lower extremities is remanded. FINDINGS OF FACT 1. The Veteran's claims for service connection for diabetes mellitus, a prostate condition, and peripheral neuropathy of the upper and lower extremities were denied in a September 2009 rating decision from which the Veteran did not perfect an appeal. 2. Evidence received since the September 2009 rating decision relates to unestablished facts necessary to substantiate the service connection claims for diabetes mellitus, a prostate condition, and peripheral neuropathy of the upper and lower extremities. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the Veteran's claim for service connection for diabetes mellitus is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 2. New and material evidence has been received, and the Veteran's claim for service connection for a prostate condition is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. New and material evidence has been received, and the Veteran's claim for service connection for peripheral neuropathy of bilateral upper extremities is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 4. New and material evidence has been received, and the Veteran's claim for service connection for peripheral neuropathy of bilateral lower extremities is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1970 to May 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran testified before the undersigned Veterans Law Judge by virtual hearing. Reopened Claims 1. New and material evidence has been received to reopen a claim for service connection for diabetes mellitus 2. New and material evidence has been received to reopen a claim for service connection for a prostate condition 3. New and material evidence has been received to reopen a claim for service connection for peripheral neuropathy of bilateral upper extremities 4. New and material evidence has been received to reopen a claim for service connection for peripheral neuropathy of bilateral lower extremities Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). "New evidence" means existing evidence not previously submitted to the VA. "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 Veteran was denied entitlement to service connection for diabetes mellitus, a prostate condition, and peripheral neuropathy of the upper and lower extremities in a September 2009 rating decision on the basis that he did not have service in the Republic of Vietnam, the claimed conditions did not onset in service, and because causal nexus between his military service and the claimed conditions was not established. The Veteran filed a notice of disagreement with the September 2009 rating decision. After issuance of a statement of the case, the Veteran did not submit a substantive appeal. The September 2009 rating decision is therefore final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Since the September 2009 rating decision, the Veteran submitted additional evidence that includes his April 2021 hearing testimony discussing the various means by which he believes he was exposed to herbicide agents in service and, information that he supplied from the internet in February 2021 regarding the longitude/latitude position of the U.S.S. Enterprise. The evidence is new in that it was not of record at the time of the previous Board decision, and the evidence is "material" because it relates to unestablished facts necessary to substantiate the underlying service connection claims, specifically whether the Veteran served in the territorial waters of the Republic of Vietnam. As a result, the evidence raises a reasonable possibility of substantiating the Veteran's claims. 38 C.F.R. § 3.156 (a). As the new evidence at least triggers the duty to assist, the Veteran's claim of entitlement to service connection for diabetes mellitus, a prostate condition, and peripheral neuropathy of the upper and lower extremities are reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). REASONS FOR REMAND 1. Entitlement to service connection for ischemic heart disease is remanded. 2. Entitlement to service connection for diabetes mellitus is remanded. 3. Entitlement to service connection for a prostate condition is remanded. 4. Entitlement to service connection for peripheral neuropathy of bilateral upper extremities is remanded. 5. Entitlement to service connection for peripheral neuropathy of bilateral lower extremities is remanded. The Veteran seeks service connection for ischemic heart disease, diabetes mellitus, prostate cancer, and bilateral peripheral neuropathy of the upper and lower extremities. He asserts that he was exposed to herbicide agents while serving on the U.S.S. Enterprise from July 1971 to December 1972. The Veteran also contends that his peripheral neuropathy of the bilateral upper and lower extremities may also be due to the diabetes mellitus. There is insufficient evidence of record to determine whether, at any point during his service aboard the U.S.S. Enterprise, the Veteran is considered to have had qualifying service in the country of Vietnam (and specifically within in the 12 nautical mile territorial sea of the 'Republic of Vietnam'), pursuant to 3.307(a)(6)(iv); Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en banc). Accordingly, on remand, the RO should conduct appropriate development (such as obtaining deck logs, ship logs, or any other documents detailing the movements and operations of the U.S.S. Enterprise during the Veteran's service period) to determine whether the Veteran is considered to have served in the Republic of Vietnam. The matters are REMANDED for the following action: 1. Take appropriate steps to attempt determine whether, at any point during the Veteran's service aboard the U.S.S. Enterprise from July 1971 to December 1972, the vessel was in the 12 nautical mile territorial sea of the 'Republic of Vietnam' based on deck logs, ship logs, or any other documents detailing the movements and operations of the vessel. 2. If the Veteran is determined to have had qualifying service in the Republic of Vietnam, undertake any additional development necessary regarding the claims of service connection for peripheral neuropathy of the bilateral upper and lower extremities, which is also claimed as secondary to diabetes mellitus. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Mazzucchelli, 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.