Citation Nr: 21031756 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 18-05 614 DATE: May 24, 2021 ORDER New and material evidence having been presented, the claim for entitlement to service connection for diabetes is reopened. REMANDED Entitlement to service connection for diabetes is remanded. FINDINGS OF FACT 1. Entitlement to service connection for diabetes was first denied in a July 2009 rating decision, and thereafter a petition to reopen the claims was denied in a July 2015 rating action; the Veteran did not appeal or submit new and material evidence within one year of either rating decision. 2. Since the July 2015 decision, an intervening change in law or regulation creates a new basis of entitlement to the benefit, which raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The July 2009 and July 2015 rating decisions that denied claim for service connection for diabetes are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.1100, 20.1103. 2. The criteria to reopen the claim of entitlement to service connection for diabetes has been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156; 38 C.F.R. § 3.156 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Navy from September 1965 to January 1970, and from September 1973 to July 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2017 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board at a hearing held by the undersigned in May 2021. A transcript of the hearing is of record. Whether new and material evidence has been associated with the record sufficient to warrant the reopening of the claim of entitlement to service connection for diabetes. The Veteran seeks to reopen his previously denied claim of entitlement to service connection for diabetes, which was first denied in a July 2009 rating decision, and thereafter in a July 2015 rating decision. The Veteran did not initiate an appeal from either of these determinations and new and material evidence was not received within one year of either decision. Under these circumstances, the Board finds that the July 2009 and July 2015 rating decisions became final. 38 U.S.C. § 7105 (c); 38. C.F.R. 3.104, 20.302, 20.1103. Generally, a claim which has been denied in a final decision may not thereafter be reopened and allowed. 38 U.S.C. § 7104 (b), 7105(c). However, if new and material evidence is presented or secured, VA shall reopen and review the former disposition of the claim. 38 U.S.C. § 5108. "New and material evidence" is defined as evidence not previously submitted to the agency decision makers which is neither cumulative or redundant, which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises 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 submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In addition, all of the evidence received since the last final disallowance shall be considered in making the determination. See Evans v. Brown, 9 Vet. App. 273, 283 (1996). In the July 2009 and July 2015 rating decisions, service connection for diabetes was denied in part due to the Veteran serving aboard the USS Annapolis outside the temporal parameters necessary for presumptive exposure to herbicide agents. Since the July 2015 decision, the area of water-based presumptive exposure has been expanded. Where there is an intervening change in law or regulation that creates a new basis of entitlement to the benefit, the claim may be reviewed on a de novo basis. Spencer v. Brown, 4 Vet. App. 283 (1993). As such, the claim is reopened, and the appeal is allowed to this extent. REASONS FOR REMAND 38 U.S.C. § 1116A, provides in part for a presumption of herbicide agent exposure for Veterans who served offshore of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. Offshore is defined as being in a location not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting several specific latitude and longitude points. Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23 (June 25, 2019). Service personnel records illustrate the Veteran served aboard the U.S.S. Annapolis from December 1966 to December 1967. The Veteran's DD 214 reflects he has been awarded the Republic of Vietnam Campaign Ribbon Bar with Device and the Vietnam Service Medal. A November 1967 entry in the Veteran's service personnel records reflects that the Veteran is eligible to wear his Vietnam Service Medal for "6 months service contributing direct combat support to the republic of Vietnam armed forces." However, while favorable, this evidence does not definitively show whether the Veteran had any service in Vietnam or within the 12 nautical miles in accordance with 38 U.S.C. § 1116A. Thus, upon remand, the Agency of Original Jurisdiction (AOJ) should complete any necessary development to determine whether the Veteran's service qualifies for the presumption of herbicide agent exposure. The matters are REMANDED for the following action: 1. Complete all necessary development to determine whether the Veteran's service aboard the U.S.S. Annapolis beginning in December 1966 involved being offshore of Vietnam or within 12 nautical miles (as defined in the Blue Water Act, Pub. L. No. 116-23, 133 Stat. 966). (Continued on the next page) Ensure that documentation of these inquiries is associated with the claims file. All responses must also be documented in the claims file and notice in accordance with 38 C.F.R. § 3.159(e) must be provided to the Veteran regarding the results of any inquiries. 2. Readjudicate the claim. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Marcus J. Colicelli 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.