Citation Nr: 22018732 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 19-27 804 DATE: March 30, 2022 ORDER The claim for service connection for diabetes mellitus type II (diabetes) is reopened. The claim for service connection for diabetes is granted. FINDINGS OF FACT 1. In a November 2014 rating decision, service connection for diabetes was denied; a notice of disagreement and/or new and material evidence was not received within one year of notice of that decision. 2. Evidence received more than one year after the November 2014 decision is not cumulative or redundant of the evidence previously of record and does raise a reasonable possibility of substantiating the claim for service connection for a low back disability, the evidence is therefore found to be both new and material. 3. The Veteran's diabetes is presumptively connected to in-service herbicide exposure. CONCLUSIONS OF LAW 1. The November 2014 rating decision that denied service connection for diabetes is final. 38 U.S.C. §§ 7104 (b), 7105(c); 38 C.F.R. §§ 3.104, 20.201, 20.302, 20.1103. 3. Evidence received more than one year since the November 2014 rating decision is new and material to the claim for service connection for diabetes and the claim to reopen that issue is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 2. Resolving all doubt in the Veteran's favor, the criteria for service connection for diabetes are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1966 to March 1970. The issue of service connection for diabetes was previously denied in a November 2014 rating decision. New and material evidence or a notice of disagreement were not received within one year of notice of that decision. The Board finds that the disability claimed and denied in 2014 and the current claim are the same as the Veteran has identified the same disability in each claim and identified the same cause of the disability. The Board, therefore, does not construe the current claim as a claim for a "distinctly diagnosed disease" from the diabetes previously denied in the final 2014 rating decision. As such, his current claim is not a separate and distinct claim, but rather a claim to reopen his prior determination. See Velez v. Shinseki, 23 Vet. App. 199 (2009). Where the claim in question has been finally adjudicated at the RO or Board level and not appealed, the statutes make clear that the Board has a jurisdictional responsibility to consider whether it is proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Thus, despite the various characterizations of the issue throughout the appeal, the Board must make an independent determination as to whether new and material evidence has been presented to reopen the claim. 1. Entitlement to reopen the claim for service connection for diabetes Generally, a claim which has been finally denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). However, 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. 38 U.S.C. § 5108. The claim for service connection for diabetes was initially denied in a November 2014 rating decision and the Veteran did not submit new and material evidence or a notice of disagreement within one year of the decision. That decision on service connection for diabetes became final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 3.156(b), 20.202, 20.1103; see Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (holding that VA has a duty to consider in every case whether evidence received within one year of an RO decision is new and material so as to prevent the decision from becoming final under 38 C.F.R. § 3.156 (c)). The claim was denied at that time on the basis that the evidence did not demonstrate herbicide exposure. Since the 2014 decision, the Veteran has provided competent and credible testimony asserting when and how he served near the perimeter at Takhli Air Force Base as well as a map of the Air Force Base with notations as to where he was in proximity to the perimeter. This evidence is new and material to the reason for the prior denial, namely whether the Veteran was exposed to herbicides during service. As such, the claim is reopened. 2. Entitlement to service connection for diabetes The Veteran contends that he incurred diabetes as a result of exposure to herbicides during military service. VA concedes herbicide agent exposure for veterans who served in Thailand during the Vietnam era at certain Royal Thai Air Force Bases to include Takhli Royal Thai Airforce Base, if they served as security policemen, security patrol dog handlers, members of the security police squadron, or otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. Resolving all doubt in the Veteran's favor, the Board finds that exposure to herbicides while serving near the perimeter of Takhli Royal Thai Air Force Base in Thailand during the Vietnam Era is likely. He demonstrated upon the submitted map where he carried out his duties as a crew chief, including checks of the end of the runway, and the proximity of the airfield and barracks near the perimeter. The Veteran also reported that he often walked the perimeter when he could not sleep in an attempt to meditate and prepare for sleep. The Board finds that the Veteran's competent lay statements regarding his service near and activities within the perimeter of the air force base, where herbicides are known to have been used, are credible and sufficient to establish herbicide exposure. (Continued on the next page) Given the conceded herbicide exposure and the fact that the evidence demonstrates a current diagnosis of diabetes, the Board concludes that presumptive service connection is warranted in this Veteran's case. See 38 C.F.R. §§ 3.307, 3.309. As such, resolving all doubt in his favor, the Veteran's claim for service connection for diabetes is granted. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. B., 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.