Citation Nr: 21041422
Decision Date: 07/09/21	Archive Date: 07/09/21

DOCKET NO. 11-16 725
DATE: July 9, 2021

ORDER

New and material evidence has been received sufficient to reopen the finally disallowed claim of entitlement to service connection for diabetes mellitus.

REMANDED

Entitlement to service connection for diabetes mellitus type II (DM II), to include as due to herbicide agent exposure, is remanded.

FINDINGS OF FACT

1. The claim for service connection for DM II was denied in a December 2002 rating decision that was not appealed.

2. Evidence received since the December 2002 rating decision for the claim of service connection for DM II includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim for service connection.

CONCLUSION OF LAW

New and material evidence has been received to reopen the previously denied and final claim of service connection for DM II. 38 U.S.C. §§ 5103, 5103A, 5107, 5108; 38 C.F.R. § 3.156.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty with the United States Air Force from August 1967 to August 1971. The Veteran passed away in February 2019, and the appellant has been substituted on the appeal as the Veteran's surviving spouse. 38 U.S.C. § 101(3); 38 C.F.R. § 3.1010.

This appeal comes before the Board of Veterans' Appeals (Board) from an April 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which determined that new and material evidence had not been received to reopen the previously denied claim for service connection for DM II. The Veteran's notice of disagreement (NOD) was received in March 2011. The RO issued the statement of the case (SOC) in June 2011, and the Veteran's VA Form 9, substantive appeal was received in June 2011.   

In April 2019 the Board dismissed the Veteran's appeal due to a lack of jurisdiction due to his death. 38 C.F.R. § 20.1302. Subsequently, the Veteran's surviving spouse filed a request to substitute on the pending claim. The request was granted in June 2021 correspondence, and the previous appeal was reactivated and placed on the Board's docket. 38 C.F.R. § 3.1010.

Reopening Claims

Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C.§ 5108; 38 C.F.R. § 3.156. "New" evidence means evidence "not previously submitted to agency decisionmakers." 38 C.F.R. § 3.156(a). "Material" evidence means "evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim." Id.

The United States Court of Appeals for Veterans Claims (Court) has elaborated that material evidence is: (1) evidence on an element where the claimant initially failed to submit any competent evidence; (2) evidence on an element where the previously submitted evidence was found to be insufficient; (3) evidence on an element where the appellant did not have to submit evidence until a decision of the Secretary determined that an evidentiary presumption had been rebutted; or (4) some combination or variation of the above three situations. Kent v. Nicholson, 20 Vet. App. 1 (2006).

In order to be "new and material" evidence, the evidence must not be cumulative or redundant, and "must raise a reasonable possibility of substantiating the claim," by enabling, not precluding, the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991).

Further, RO decisions become final "only after the period for appeal has run," and "[a]ny interim submissions before finality must be considered by the VA as part of the original claim." Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). If new and material evidence is received within one year after the date of mailing of an RO decision, it may be "considered as having been filed in connection with the claim which was pending at the beginning of the appeal period that prevents an initial determination from becoming final." King v. Shinseki, 23 Vet. App. 464, 466-67 (2010).

When VA fails to consider new and material evidence submitted within the one-year appeal period pursuant to § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final. Young v. Shinseki, 22 Vet. App. 461, 466 (2009); see also Buie v. Shinseki, 24 Vet. App. 242, 252 (2011) (remanding for the Board to consider the application of 38 C.F.R. § 3.156(b) and whether the regional office correctly viewed the statements in question "as new claims"). In Buie, the Court explained that, when statements are received within one year of the rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b). Id.

1. Whether new and material evidence has been received to reopen the claim of service connection for DM II.

The Board concludes that a December 2002 rating decision denying service connection for DM II is final and that new and material evidence has been received to reopen the previously denied claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103.

A December 2002 RO rating decision denied service connection for DM II because there was no record of in-service treatment and no current diagnosis of DM II. VA notified the Veteran of this decision in a December 2002 letter and how to appeal. Thereafter, VA received no informal or formal NOD or new and material evidence from the Veteran prior to expiration of the appeal period. Therefore, the December 2002 rating decision became final. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.201, 20.302, 20.1103.

In June 2005, VA received from the Veteran a claim to reopen his previously denied claim of service connection for DM II. The RO determined that new and material evidence had not been received to reopen the previously denied claim for service connection for DM II.

In August 2009, VA received from the Veteran a claim to reopen his previously denied claim of service connection for DM II.

Evidence received since the prior final denial in 2009 includes VA treatment records, lay statements from the Veteran, and internet articles submitted by the Veteran. This evidence is new because it was not previously of record at the time of the 2002 denial. Additionally, the evidence is material because it relates to an unestablished fact necessary to decide the claim.  

VA treatment records reflect a current diagnosis of DM II. See e.g. May 2002 VA treatment note. The Veteran stated that his duties at Nakhon Phanom Royal Thai Air Force Base (NKP) involved refueling aircraft. See June 2011 VA Form 9. The Veteran also submitted articles obtained from the internet indicating that C-123 aircraft carrying herbicide in support of Operation Ranch Hand flew from NKP where the Veteran was stationed. See August 2009 correspondence.

This evidence is new. This evidence is also material because it relates to an unestablished fact necessary to substantiate his claim, and it relates to a reason VA previously denied his claim. The threshold for reopening is low. Shade, supra. Furthermore, the credibility of evidence is presumed. Justus, supra. Hence, the Board concludes that new and material evidence has been received.

Accordingly, the petition to reopen the claim of service connection for DM II is granted.

REASONS FOR REMAND

1. Entitlement to service connection for diabetes mellitus type II (DM II), to include as due to herbicide agent exposure, is remanded.

Prior to his death, the Veteran asserted that he was exposed to herbicide agents during active service at Nakhon Phanom Royal Thai Air Force Base (NKP) from September 1968 to September 1969. See, e.g. March 2011 lay statement.

An Agent Orange worksheet was completed in December 2009 which found no evidence of exposure in Thailand. The rationale was that the Veteran's MOS was aircraft mechanic and his service personnel file was negative for any activity associated with perimeter control or vegetation management.

In a July 2017 Administrative Decision, the RO stated that a Formal Finding regarding potential herbicide exposure was already completed in December 2010 and the Veteran has not submitted any new evidence supporting his claim for Agent Orange exposure. Therefore, the RO found that the December 2010 Formal Finding was still valid. 

However, there is no such previous Formal Finding of record. The July 2017 administrative decision appears to be referring to a December 2010 Formal finding of a lack of information required to corroborate stressors associated with the Veteran's claim for service connection for PTSD. Moreover, the Veteran submitted articles obtained from the internet indicating that C-123 aircraft carrying herbicide agents in support of Operation Ranch Hand flew from NKP beginning the year prior to when the Veteran was stationed there. See August 2009 correspondence. And on his June 2011 VA Form 9, received after the December 2009 Agent Orange worksheet, the Veteran stated that his duties at NKP involved refueling aircraft.

Additionally, the RO did not provide a notification or development letter informing the Veteran that his herbicide exposure was unable to be verified and requesting any additional information following the completion of the December 2009 Agent Orange worksheet or the July 2017 Administrative Decision.

Based on the foregoing, the Board finds that there is sufficient information of record to warrant further development for verification of exposure to herbicide agents and to obtain relevant unit records or histories. 

The matters are REMANDED for the following action:

1. Obtain from an appropriate federal source the Veteran's unit records and/or histories related to his period of active service in Thailand.

2. Attempt to verify the Veteran's asserted in-service exposure to herbicide agents. The Veteran reported that his duties at Nakhon Phanom Royal Thai Air Force Base included refueling aircraft. He also submitted an internet article which states that C-123 aircraft carrying herbicide flew from Nakhon Phanom Royal Thai Air Force Base beginning in 1966.

3.If more details are needed, contact the appellant to request the information. If there is still insufficient information to verify exposure to herbicide agents, issue a Formal Finding outlining the steps taken to assist the appellant and notify the appellant of VA's inability to verify the Veteran's in-service herbicide agent exposure. 

 

Z. SAHRAIE

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Modesto, Victor

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.