Citation Nr: 21032119 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 17-50 805 DATE: May 25, 2021 ORDER As new and material evidence sufficient to reopen the previously denied claim for diabetes mellitus has been received, the application to reopen this claim is granted. REMANDED Entitlement to service connection for diabetes mellitus is remanded. FINFING OF FACT 1. An unappealed May 2013 Regional Office (RO) decision denied service connection for diabetes mellitus. 2. Evidence received since the May 2013 RO decision with respect to the claim for service connection for diabetes mellitus is not cumulative of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim. CONCLUSION OF LAW New and material evidence sufficient to reopen the previously denied claim for service connection for diabetes mellitus has been received. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1966 to February 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied the claim for service connection. A claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 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 submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Further, and regardless of the RO's actions, the Board has a legal duty under 38 U.S.C. § 5108 to address the question of whether new and material evidence has been received to reopen the claim for service connection. This matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). The evidence of record at the time of the RO's May 2013 decision included the Veteran's service treatment records. The basis for the denial of diabetes mellitus was a lack of evidence establishing that the Veteran had been exposed to herbicides in Vietnam. Relevant evidence received since the May 2013 decision includes recent service records reflecting that the Veteran spent time at the Takhli RTAFB, a report from the Air Force Historical Research Agency, as well as the Veteran's claim of receiving combat pay while in Vietnam. Based on a review of the record, the Board finds that the additional evidence is new and material, as it addresses unestablished facts needed to substantiate the claim. In this regard, the additional records contain competent evidence of potential service in Vietnam. As such, the evidence satisfies the low threshold for reopening this claim. Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The application to reopen the previously denied issue of entitlement to service connection for diabetes mellitus is granted. 38 C.F.R. § 3.156 (a). REASONS FOR REMAND The Board cannot make a fully informed decision on the issue of entitlement to service connection for diabetes mellitus at this time. In this matter, the Veteran contends that he has diabetes mellitus, type II, is related to his military service. Specifically, he asserts that he developed diabetes mellitus as a result of herbicide exposure during his active duty service. The Veteran argues that he was exposed to herbicides when he stopped over in the Republic of Vietnam on his way to his duty assignment in Thailand during flights in 1966 and 1967. See September 2017 Form 9. To this end, service personnel records confirm that the Veteran was sent on to Thailand. However, the evidence of record does not confirm the Veteran's recollection of a layover in the Republic of Vietnam. In this regard, the Veteran's personnel records do not any show service on the mainland of the Republic of Vietnam. His Form DD 214 also does not show awards that establish the Veteran's presence in Vietnam. In a September 2012 response of the Joint Services Records Research Center (JSRRC) to an information request, the JSRRC reported that the unit history did not denote any of the Veteran's unit members traveling to Vietnam. Additionally, an email reply from the US Air Force Historical Research Agency in December 2013 advises there is no record of unit personnel being in Vietnam. Lastly, the US Air Force Historical Research Agency in March 2014 noted that civilian airlines did not submit any type of paperwork to the US Air Force Historical Research Agency and that they could not confirm these particular flights. The Veteran's personnel records reflect that he was stationed at the Takhli Royal Thai Air Force Base (RTAFB). The majority of troops in Thailand during the Vietnam Era were stationed at the RTAFBs of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by his military occupational specialty (MOS), performance evaluations, or other credible evidence, then herbicide agent exposure should be acknowledged on a facts-found or direct basis. This allows for presumptive service connection of the diseases associated with herbicide agent exposure and applies only during the Vietnam Era, from February 28, 1961, to May 7, 1975. Finally, the Veteran claims that he received combat pay for his time in Vietnam. See September 2017 VA Form 9. It does not appear that VA has attempted to corroborate the Veteran's report that these flights took place by examining his contention of combat pay. At present, there is no affirmative evidence in the record to explicitly place the Veteran at or near the perimeter of the Takhli RTAFBs. On remand, the AOJ must make as many requests to JSRRC as needed to cover the entirety of the Veteran's service in Thailand to determine if the Veteran ever served at or near the perimeter at the Takhli RTAFB. Also, the AOJ should verify whether the Veteran received combat pay for any flights during this time period. The matters are REMANDED for the following action: 1. Obtain the Veteran's treatment records to present. 2. Send a request(s) to the JSRRC to determine whether the Veteran served at or near the perimeter of the Takhli Royal Thai Air Force Bases during his service. The AOJ should send as many requests as necessary to cover the entirety of the Veteran's service in Thailand. This should be done consistent with VA's concession that tactical-type herbicide agents were used in Thailand. 3. Attempt to verify from an appropriate source whether Veteran received combat pay for any flights from 1966 and 1967. KATHERINE BUCKLEY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Edward G. Lent 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.