Citation Nr: 22015157 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 19-28 243 DATE: March 16, 2022 ORDER New and material evidence has been received to reopen the claim of service connection for diabetes mellitus, type II, and the petition to reopen the claim is granted. New and material evidence has been received to reopen the claim of service connection for a heart disability and the petition to reopen the claim is granted. REMANDED Service connection for diabetes mellitus, type II, is remanded. Service connection for a heart disability is remanded. Service connection for diabetic neuropathy, left upper extremity, is remanded. Service connection for diabetic neuropathy, right upper extremity, is remanded. Service connection for a right knee disability is remanded. FINDINGS OF FACT 1. In August 1996, the Agency of Original Jurisdiction (AOJ) denied entitlement to service connection for diabetes mellitus, type II and the Veteran perfected an appeal in September 1997. In September 1999 and August 2002 rating decisions, the claim was readjudicated and denied. In April 2004, the Veteran withdrew his appeal. 2. In May 2003, the AOJ denied entitlement to service connection for a heart disability; the Veteran did not file a notice of disagreement and no new evidence was received within a year of issuance of the rating decision. 3. In July 2010, the AOJ determined that new and material evidence had not been received to reopen entitlement to service connection for diabetes mellitus, type II; a notice of disagreement was received in August 2010, a statement of the case was issued in April 2011, but the Veteran did not file a timely substantive appeal. 4. Additional evidence received since the respective May 2003 and July 2010 rating decisions is new and relates to unestablished facts necessary to substantiate the claims of service connection for diabetes mellitus, type II, and a heart disability. CONCLUSIONS OF LAW 1. New and material evidence has been received since the July 2010 rating decision and the claim of service connection for diabetes mellitus, type II, is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. New and material evidence has been received since the May 2003 rating decision and the claim of service connection for a heart disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1970 to January 1972. These matters come to the Board of Veterans' Appeals (Board) from a December 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in November 2016, a statement of the case was issued in July 2019, and a substantive appeal was received in September 2019. The Veteran testified at a Board hearing in October 2021; the transcript is of record. New & Material Evidence Even where the RO determines that new and material evidence has been received to reopen a claim, or that an entirely new claim has been received, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C. § 5108. See Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). New and material evidence is existing evidence that by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claims and raises a reasonable possibility of substantiating the claims. 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 presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA's duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. In January 1996, the Veteran filed a claim of service connection for diabetes mellitus, type II. In an August 1996 rating decision, service connection was denied. In November 1996, the Veteran filed a notice of disagreement; a statement of the case was issued in August 1997; and a substantive appeal was received in September 1997. In September 1999, the claim was readjudicated as secondary to service-connected lower extremities disabilities due to frostbite and denied. In August 2002, the claim was readjudicated as secondary to exposure to herbicides and denied. In April 2004, the Veteran withdrew his appeal. Thus, the rating decisions are final. In January 2003, the Veteran filed a claim of service connection for a heart disability. In May 2003, service connection was denied on a direct basis. The Veteran did not file a notice of disagreement and no new evidence was received within a year of issuance of the rating decision. 38 U.S.C. § 7105; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); 38 C.F.R. § 3.156(b). Thus, the May 2003 rating decision is final. In October 2008, the Veteran filed a petition to reopen service connection for diabetes mellitus. In a July 2009 rating decision, it was determined that new and material evidence had not been received to reopen the claim. In a July 2009 claim, the Veteran asserted that his diabetes mellitus was due to cold weather exposure. In a July 2010 rating decision, it was determined that new and material evidence had not been received to reopen the claim. A notice of disagreement was filed in August 2010, a statement of the case was issued in April 2011, but the Veteran filed an August 2011 untimely substantive appeal. Thus, the July 2010 rating decision is final. In March 2014, the Veteran filed a claim to reopen service connection for diabetes mellitus. In a March 2015 rating decision, it was determined that new and material evidence had not been received to reopen the claim. In July 2015, the Veteran filed a claim to reopen service connection for diabetes mellitus and a heart disability asserting that these conditions were due to exposure to herbicides while stationed in Germany. In December 2015, it was determined that new and material had not been received to reopen the claims and this appealed ensued. In July 2015, the Veteran submitted a statement pertaining to his claimed exposure to herbicides while stationed in Germany. 07/09/2015 Correspondence. In November 2016, the Veteran submitted a statement pertaining to a fellow soldier regarding his recollections of claimed exposure to herbicides while stationed in Germany. 11/09/2016 Buddy/Lay Statement. Based on the above additional evidence that has been associated with the claims folder in support of the claims to reopen, the Board finds that such provides the basis for reopening the claims of service connection for diabetes mellitus and a heart disability. For the above reasons, the claims of service connection for diabetes mellitus, type II, and a heart disability are reopened. 38 U.S.C. § 5108. REASONS FOR REMAND The Veteran asserts that his diabetes mellitus, associated peripheral neuropathy of the upper extremities, and a heart disability are due to in-service exposure to herbicides. The issues hinge on whether these disabilities can be directly or presumptively related to his military service. VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). If a veteran was exposed to an herbicide agent during active military, naval, or air service, any of the diseases listed in 38 C.F.R. § 3.309(e) (which includes diabetes mellitus and ischemic heart disease) may be presumed to have been incurred in-service even if there is no evidence of the disease in service. In order to gain presumptive service connection for ischemic heart disease or diabetes mellitus, it shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). The Veteran did not have service in the Republic of Vietnam. He asserts that he was exposed to herbicides while stationed in Germany during the Vietnam-era. His military personnel records reflect that he was stationed in Germany from September 9, 1970, to January 12, 1972. 11/28/2016 Military Personnel Record at 16-17. His military occupational specialty (MOD) was heavy truck driver. The Veteran asserts that while stationed in Germany he worked in an ammo bunker in Furth, Germany and he "came upon some barrels that needed to be moved approximately six inches in order to place additional rifle rounds in the bunker." He wrapped his arms around the barrel and was then told to get away from the barrel by Sergeant J.J.T. as it contained herbicides. He was told by a Colonel that he was not to speak of the incident further. 07/09/2015 Correspondence. In a January 2016 statement from Sergeant J.J.T. he stated that he observed the Veteran with a barrel with an orange band and based on his service in the Republic of Vietnam he believed it was Agent Orange. He told the Veteran to put the barrel down and he contacted the appropriate authorities. He was told by a Colonel that he was not to speak of the incident further. 11/09/2016 Buddy/Lay Statement. The Veteran asserts that the above incident occurred in March 1971. 10/26/2021 Hearing Transcript at 4. Exposure to herbicide agents may be established on a facts-found basis for service in areas outside of Vietnam and Korea. In this case, the RO must undertake efforts to verify the alleged exposure to herbicide agents in Germany. Thus, the Board finds remand is necessary to allow the RO to attempt to verify the alleged exposure. Right knee The Veteran asserts that his right knee disability is due to his service-connected right lower extremity cold injury with degenerative joint disease of the great toe and gout and right ankle strain (20% 11/28/1995; 30% 03/20/2002); left lower extremity cold injury with degenerative joint disease of the great toe and gout and left ankle strain (20% 11/28/1995; 30% 03/20/2002); peripheral neuropathy, left lower extremity (10% 03/20/2002; 20% 11/13/2008); and peripheral neuropathy, right lower extremity (10% 03/20/2002; 20% 11/13/2008). The Veteran should be afforded an examination to assess the nature and etiology of his claimed right knee disability. The matters are REMANDED for the following actions: 1. Take all necessary action in accordance with applicable policy and procedure to verify from all appropriate sources the Veteran's alleged in-service exposure to herbicide agents in Furth, Germany in March 1971. If there is insufficient information to verify exposure to herbicide agents, issue a Formal Finding outlining the steps taken to assist the Veteran. 2. Schedule the Veteran for an orthopedic examination with a physician with appropriate expertise to assess the nature and etiology of his claimed right knee disability. The virtual folder should be made available to the examiner for review in conjunction with the examination. Any medically indicated special tests should be accomplished, and all special test and clinical findings should be clearly reported. The examiner should respond to the following: a) Please identify all disabilities associated with the right knee. Consideration should be given to the diagnoses of record. b) Is a disability of the right knee at least as likely as not caused by a service-connected disability, which includes right lower extremity cold injury with degenerative joint disease of the great toe and gout and right ankle strain; left lower extremity cold injury with degenerative joint disease of the great toe and gout and left ankle strain; peripheral neuropathy, left lower extremity; and peripheral neuropathy, right lower extremity? c) If not, has a right knee disability at least as likely as not been aggravated (made worse) by a service-connected disability, which includes right lower extremity cold injury with degenerative joint disease of the great toe and gout and right ankle strain; left lower extremity cold injury with degenerative joint disease of the great toe and gout and left ankle strain; peripheral neuropathy, left lower extremity; and peripheral neuropathy, right lower extremity? If aggravation is found, the examiner should identify the baseline level of disability prior to such aggravation, if possible. The examiner is advised that the Veteran is competent to report his symptoms and history, and that his reports must be considered in formulating the requested opinions. In formulating the opinion, the examiner must provide an appropriate rationale, to include consideration and discussion of the medical evidence and lay assertions of the Veteran. If any requested opinion cannot be provided without resort to speculation, the examiner should explain why this is so; and whether the inability to provide the necessary opinion is due to the limits of medical and scientific knowledge or is due to the absence of specific evidence. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.