Citation Nr: 22017101 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 15-15 703 DATE: March 24, 2022 ORDER New and material evidence having been received, the claim of entitlement to service connection for diabetes mellitus is reopened. New and material evidence having been received, the claim of entitlement to service connection for coronary artery disease (CAD) is reopened. The claim of entitlement to service connection for diabetes mellitus is granted. The claim of entitlement to service connection for CAD is granted. FINDINGS OF FACT 1. In an April 2011 rating decision, the Regional Office (RO) denied the Veteran's claim of entitlement to service connection for diabetes mellitus. The Veteran filed a Notice of Disagreement (NOD) but did not file a substantive appeal on the issue, and the decision became final. 2. Evidence received since the April 2011 denial relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of entitlement to service connection for diabetes mellitus. 3. In an August 2008 rating decision, the RO denied the Veteran's claim of entitlement to service connection for CAD. The Veteran did not file a Notice of Disagreement or otherwise appeal this decision and it became final. 4. Evidence received since the August 2008 denial relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of entitlement to service connection for CAD. 5. The Veteran was exposed to herbicide agents in service, and the Veteran's diabetes mellitus is presumptively related to such exposure. 6. The Veteran was exposed to herbicide agents in service, and the Veteran's CAD is presumptively related to such exposure. CONCLUSIONS OF LAW 1. New and material evidence having been received, the claim of entitlement to service connection for diabetes mellitus is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 2. New and material evidence having been received, the claim of entitlement to service connection for CAD is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for diabetes mellitus, to include as a result of exposure to herbicide agents, are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for CAD, to include as a result of exposure to herbicide agents, are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States (U.S.) Navy from May 1965 to November 1969 and July 1972 to July 1975. He received the Vietnam Service Medal with three Bronze Stars and the Republic of Vietnam Campaign Medal, among other commendations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2013 and December 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Board, in pertinent part, denied the applications to reopen the claims of service connection for CAD and diabetes mellitus. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In an August 2019 Order, the Court granted a July 2019 Joint Motion for Partial Remand (JMPR) vacating the Board's July 2018 decision and remanding the matters for further consideration and instructions consistent with the JMPR. Specifically, per the JMPR, the parties agreed that the Veteran's claim required readjudication in light of Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc), a decision in which the U.S. Court of Appeals for the Federal Circuit determined that U.S. servicemembers who served within the territorial sea of Vietnam are entitled to the presumption of herbicide exposure under 38 U.S.C. § 1116(f). The Veteran's service personnel records reflect that he served aboard the United States Ship (USS) Bronstein from 1965 to 1969, as well as aboard the USS Enterprise from 1972 to 1974. The parties to the July 2019 JMPR found that in light of Procopio, the Veteran's appeal turned upon the question of whether he was aboard a ship that was within the 12 nautical mile territorial sea of Vietnam. In February 2020, the Board remanded the issues of whether new and material evidence had been received to reopen the claims on appeal and directed the RO to attempt to verify the Veteran's asserted in-service exposure to an herbicide agent, to include as whether the Veteran was aboard a ship that was within the 12 nautical mile territorial sea of Vietnam. The Board concludes that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in May 2018. A written transcript of that hearing has been prepared and is associated with the evidence of record. New and Material Evidence Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105. An exception to this rule, pursuant to 38 U.S.C. § 5108, provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. New evidence means existing evidence not previously submitted to VA. 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 of record at the time of the last prior final denial of the claim being sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold to reopen a claim is low. See Shade v. Shinseki, 24 Vet. App. 510, 513 (1992). In determining whether evidence is new and material, the credibility of the evidence, but not its weight, is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). CONTINUED ON NEXT PAGE 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for diabetes mellitus. See section 2, below. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for CAD. The Veteran seeks service connection for the previously denied claims above. VA denied the Veteran's claims of entitlement to service connection for CAD and diabetes mellitus in August 2008 and April 2011, respectively. The Veteran's claims were denied due to no nexus between the disabilities and his active duty service. Therefore, for the evidence to be new and material, it must address this unestablished fact. Since the prior final denials, and following the Federal Circuit's decision in Procopio, evidence has been added to the record to include Navy logbooks and ship locators, VA memoranda, as well as photographs and other research documents submitted by the Veteran. The Board finds the above evidence new in that the logbooks, VA memoranda, and March 2022 lay statements, were not previously of record or considered by the RO and are material in that this evidence directly addresses the unestablished link between the Veteran's service and his potential exposure to herbicide agents during active service. Accordingly, the Board finds that the evidence submitted for the above claims is new and material, and that reopening the claims of entitlement to service connection for diabetes mellitus and CAD is warranted. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The law establishes a presumption of service connection for diseases associated with exposure to certain herbicide agents, such as Agent Orange, and a presumption of exposure to such agents for veterans who served in the Republic of Vietnam between January 1962 and May 1975, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). In these circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e), which includes diabetes mellitus and certain types of heart disease such as CAD, if manifested to a compensable degree at any time after active service. "Service in the Republic of Vietnam" includes service on the landmass, inland waterways, and in the territorial sea extending 12 nautical miles from the shores of that nation. Procopio, 913 F.3d 1371 (Fed. Cir. 2019). As a result, the presumption of exposure to herbicide agents extends to veterans who served within that area, and such veterans are entitled to presumptive service connection under 38 U.S.C. § 1116 (f), in that they "served in the Republic of Vietnam," regardless of whether they had duty or visitation on the ground or in the inland waters of Vietnam. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The benefit-of-the-doubt rule applies if the competing evidence is "nearly equal" or in "approximate balance." The doctrine does not apply when the evidence persuasively favors one side or the other. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). 3. The claim of entitlement to service connection for diabetes mellitus. See section 4, below. 4. The claim of entitlement to service connection for CAD. The Veteran contends that he was exposed to Agent Orange during his active duty service and that this exposure caused his CAD and diabetes mellitus. Among other things, the Veteran contends that on at least one occasion during the years of his active service, the ship he was aboard entered the territorial sea of Vietnam. See e.g., Board hearing transcript; March 2022 Correspondence. VA medical treatment records and a March 2016 private medical evaluation confirm that the Veteran is diagnosed with both diabetes mellitus and CAD. Thus, as noted in section 2, above, the crux of these claims is whether the Veteran had exposure to herbicide agents during active service. The Board concludes that there is an approximate balance of positive and negative evidence regarding this material issue and that, as such, service connection is warranted for these claims. The Board notes that on remand, the RO obtain numerous logbooks of the USS Bronstein and Enterprise for the dates relevant to this appeal and utilized a Blue Water Navy Ship Locator Dashboard to attempt to determine the locations of the ships during the relevant periods. Further, VA added to the Veteran's claims file multiple research summaries dated August 2021, and added a final memorandum dated September 2021, which stated the Veteran's exposure to herbicides while in service could not be conceded. In addition to evidence the Veteran and his representatives previously submitted, the Veteran submitted a March 2022 letter in which he stated that while aboard the USS Bronstein from 1966 to 1969, the ship's course included trips to Yankee Station (a fact that is confirmed by available deck logs) and "shore bombardment" off the Vietnam coast. The Veteran described that at one point in 1969 the "spring [bearing] on the main shaft seized up," effectively forcing the ship to drift significantly closer to the Vietnam coast. This recount is competent, as it relates a personal experience. Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). In considering the credibility and persuasiveness of this and prior Veteran lay statements, the Board notes that the logbooks and ship location data of record neither confirm nor affirmatively rebut the Veteran's assertion that on at least one occasion, the USS Bronstein came within 12 nautical miles of the Vietnam shore. Images of the locations of the USS Bronstein and Enterprise from the Blue Water Navy Ship Locator Dashboard show that on at least one known occasion, each ship closely abutted the 12 nautical mile boundary. These records also show that there are multiple dates for which no deck logs are available for the USS Bronstein in 1969. An August 2021 Records Research Response synopsis states that in researching the dates the Veteran was aboard the USS Bronstein (from November 16, 1965, to November 29, 1969), the researcher reviewed command history reports from 1965, 1966, 1967 and 1968, and reviewed the Dictionary of American Naval Fighting Ships 1963-1991, with ship history for the USS Bronstein. The researcher noted that they also requested records from Naval History and Heritage Command (NHHC), the custodian of Naval command history records for 1969; however, the NHHC "was unable to locate the 1969 command history report for the USS Bronstein." The researcher noted that, "no evidence was located to support documentation of the claimed exposure." In its September 2021 memorandum, VA concluded there was, "no evidence of record to show the Veteran, "had duty or visitation in the Republic of Vietnam, or on its inland waters, or nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23." No additional explanation was provided, and no apparent analysis was made of the Veteran's claims that he was in closer proximity to Vietnam on at least one occasion. Significantly, the memorandum lacked required signatures from a "[Blue Water Navy] Employee" and Records Research Specialist. Due to these shortcomings, the Board assigns reduced probative value to this memorandum. In light of the above, and in affording the Veteran the full benefit of the doubt, the Board finds that he served within the territorial sea of Vietnam. Thus, the presumptions found at 38 C.F.R. §§ 3.307 and 3.309(e) apply to his appeal for service connection for diabetes mellitus and CAD. and residuals thereof. The criteria for service connection for this disability are met, and the claims for service connection are granted. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Hart, Associate 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.