Citation Nr: 1760262
Decision Date: 12/27/17 Archive Date: 01/02/18

DOCKET NO. 14-17 964 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon

THE ISSUES

1. Whether new and material evidence has been received to reopen the claim of service connection for diabetes mellitus, Type II (DM).

2. Entitlement to service connection for DM.

REPRESENTATION

Appellant represented by: The American Legion

WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

J. Connolly, Counsel

INTRODUCTION

The Veteran served on active duty from June 1970 to November 1973 and from February 1984 to April 2000.

This matter comes to the Board of Veterans’ Appeals (Board) on appeal from August 2012 decision of the Portland, Oregon, Regional Office (RO) of the Department of Veterans Affairs (VA). In December 2016, the Veteran testified before the undersigned at the RO via video conference.

To the extent that the RO reopened the claim, the Board has an obligation to make an independent determination of its jurisdiction regardless of findings or actions by the RO. Barnett v. Brown, 8 Vet. App. 1 (1995), aff’d, 83 F.3d 1380 (Fed. Cir. 1996).

The issue of entitlement to service connection for DM is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1. A May 2003 rating decision denied service connection for DM; the Veteran did not perfect an appeal.

2. An April 2004 rating decision determined that new and material evidence had not been received to reopen the claim of service connection for DM; the Veteran did not perfect an appeal.

3. A December 2007 rating decision determined that new and material evidence had not been received to reopen the claim of service connection for DM; the Veteran did not perfect an appeal.

4. A July 2009 rating decision apparently reopened the claim of service connection for DM, but confirmed the prior denial.

5. Evidence submitted since the July 2009 rating decision, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and therefore raises a reasonable possibility of substantiating the claim.

CONCLUSIONS OF LAW

1. The May 2003 rating decision which denied service connection for DM is final. 38 U.S.C. § 7105 (2012).

2. The April 2004 rating decision which determined that new and material evidence had not been received to reopen the claim of service connection for DM is final. 38 U.S.C. § 7105 (2012).

3. The December 2007 rating decision which determined that new and material evidence had not been received to reopen the claim of service connection for DM is final. 38 U.S.C. § 7105 (2012).

4. The July 2009 rating decision which denied service connection for DM is final. 38 U.S.C. § 7105 (2012).

5. New and material evidence has been received since the July 2009 rating decision and the claim of entitlement to service connection for DM is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. With regard to the issue of whether new and material evidence has been received to reopen the claim of service connection for DM, the Veteran’s claim is being granted to the extent that it is reopened. As such, any deficiencies with regard to VCAA are harmless and nonprejudicial.

New and Material

A May 2003 rating decision denied service connection for DM. The claim was denied since the Veteran did not serve in-country in Vietnam. A notice of disagreement was not received within the subsequent one-year period nor was pertinent evidence received. Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011).

Thereafter, the Veteran sought to reopen her service connection claim. However, an April 2004 rating decision determined that new and material evidence had not been received to reopen the claim of service connection for DM since the Veteran did not serve or Vietnam or submit verifiable evidence of exposure to herbicides. A notice of disagreement was not received within the subsequent one-year period nor was pertinent evidence received. Bond.

The Veteran subsequently attempted to reopen her claim of service connection for DM again. A December 2007 rating decision again determined that new and material evidence had not been received to reopen the claim of service connection for DM. It was noted that the case of Haas v. Nicholson, 20 Vet. App. 257 (2006) was pending and the Veteran’s claim would be reviewed when the final regulations were approved. Thereafter, a July 2009 rating decision apparently reopened the claim of service connection for DM, but confirmed the prior denial.

In Haas v. Peake, 525 F.3d 1168 (2008), cert. denied, 129 S. Ct. 1002 (2009), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that VA’s regulation defining “served in the Republic of Vietnam,” under the Agent Orange Act, to mean “service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam,” was reasonably interpreted by VA to require that a service-member had set foot within the land borders of Vietnam in order to be entitled to statutory presumptions of both exposure and service connection for specified diseases under the Act. Id. at 1187; 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.307 (a)(6)(iii). The Federal Circuit also stated that a veteran who had served on board a Navy ammunition supply ship operating in the Vietnamese coastal waters had not “served in the Republic of Vietnam” under the Agent Orange Act and regulations since he had never gone ashore from the ship and set foot within land borders of Republic of Vietnam. Haas, 525 F.3d at 1193; 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.307 (a)(6)(iii).

In this case, the Veteran does not assert that she had Vietnam service, but rather service in Thailand. VA developed specific procedures to determine whether a Veteran was exposed to herbicides in a vicinity other than the Republic of Vietnam or along the demilitarized zone (DMZ) in Korea. VA’s Adjudication Procedure Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H (M21-1), directs that a detailed statement of the Veteran’s claimed herbicide exposure be sent to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification. See VBA Fast Letter 09-20 (May 6, 2009). The M21-1 also specifies when herbicide exposure may be conceded in certain cases where the Veteran served in Thailand during the Vietnam era. VA’s Adjudication Procedure Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H, provides that herbicide exposure may be conceded on a direct/facts-found basis if the Veteran served with the U.S. Air Force in Thailand during the Vietnam Era at one of the Royal Thai Air Force Bases (RTAFBs) at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang, and as an Air Force security policeman, security patrol dog handler, member 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.

The RO also added to the record a “Memorandum for the Record” on herbicide use in Thailand during the Vietnam Era by the Veterans Benefits Administration (VBA), Compensation & Pension (C&P) Service. The Department of Defense (DoD) reported that only limited testing of tactical herbicides was conducted in Thailand from April 2, 1964, to September 8, 1964, and specifically identified that location as the Pranburi Military Reservation. The Memorandum noted that tactical herbicides, such as Agent Orange, were used and stored in Vietnam, not Thailand. A letter from the Department of the Air Force indicated that, other than the 1964 tests on the Pranburi Military Reservation, there were no records of tactical herbicide storage or use in Thailand. However, there were records indicating that commercial herbicides were frequently used for vegetation control within the perimeters of air bases during the Vietnam era, but all such use required approval of both the Armed Forces Pest Control Board and the Base Civil Engineer (BCE). The Memorandum noted that in Vietnam, tactical herbicides were aerially applied by aircraft in “Operation RANCH HAND” or by helicopters under the control of the U.S. Army Chemical Corps; however, the BCE were not permitted to purchase or apply tactical herbicides. The Memorandum noted that there were no records of tactical herbicide spraying by RANCH HAND or ACC aircraft in Thailand after 1964, and RANCH HAND aircraft that sprayed herbicides in Vietnam were stationed in Vietnam, not in Thailand. However, there are records indicating that modified RANCH HAND aircraft flew 17 insecticide missions in Thailand from August 30, 1963, to September 16, 1963, and from October 14, 1966, to October 17, 1966. Also, the Memorandum reviewed the Project CHECO Southeast Asia Report: Base Defense in Thailand produced during the Vietnam era. While the Report did not discuss the use of tactical herbicides on allied bases in Thailand, it did indicate sporadic use of non-tactical, or commercial, herbicides within fenced perimeters. The Memorandum determined, therefore, that if a Veteran’s MOS or unit was one that regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides, including herbicides. The Memorandum specifically identified security police units, as those known to have walked the perimeters, especially dog handlers. However, there were no records to show that the same tactical herbicides used in Vietnam were used in Thailand. The Memorandum advised that if the Veteran’s claim was based on servicing or working on aircraft that flew bombing missions over Vietnam, that there was no presumption of “secondary exposure” based on being near or working on aircraft that flew over Vietnam or handling equipment once used in Vietnam, as aerial spraying of tactical herbicides in Vietnam did not occur everywhere and it would be inaccurate to find that herbicides covered every aircraft and piece of equipment associated with Vietnam. Additionally, the Memorandum noted that the high altitude jet aircraft stationed in Thailand generally flew far above the low and slow flying UC-123 aircraft that sprayed tactical herbicides over Vietnam during Operation RANCH HAND, and that were no studies showing harmful health effects for any such secondary or remote herbicide contact that may have occurred. The Memorandum states that unless the Veteran’s assertion is inherently incredible, clearly lacks merit, or there is no reasonable possibility that further VA assistance would substantiate the claim, a request should be made to the JSRRC to attempt to corroborate the Veteran’s assertion.

However, as noted, the RO denied the claim. A notice of disagreement was not received within the subsequent one-year period nor was pertinent evidence received. Bond. Therefore, the RO’s July 2009 rating decision is final. 38 U.S.C. § 7105.

Prior unappealed decisions are final. However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that, when “new and material evidence” is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).

New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing 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 sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). According to the Court, the pertinent VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273 (1996).

Since the last prior final decision, evidence has been added to the record. The Veteran contends that she was stationed at Korat Air Force Base (AFB) in Thailand from November 1972 to November 1973. Thereafter, the Veteran also indicated that she served on guard duty at least once per month.

In addition, and although not in the record, VA’s Compensation Service has further issued information concerning the use of herbicides in Thailand during the Vietnam era. In a May 2010 bulletin, the Compensation Service indicated that it had determined that there was significant use of herbicides on the fenced in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. A source for this information was the declassified Vietnam era Department of Defense (DoD) document titled Project CHECO Southeast Asia Report: Base Defense in Thailand. Although DoD indicated that the herbicide use was commercial in nature rather than tactical, the Compensation Service determined that there was some evidence that herbicides of a tactical nature, or that of a “greater strength” commercial variant with characteristics of tactical herbicides, were used. Therefore, the Compensation Service determined that special consideration of herbicide exposure on a facts found or direct basis should be extended to those Veterans whose duties placed them on or near the perimeter of Thailand military bases, allowing for presumptive service connection of the diseases associated with herbicide exposure. According to the bulletin, along with air bases, there were some small Army installations established in Thailand during this period, which may also have used perimeter herbicides in the same manner as the air bases. Therefore, if a U.S. Army veteran claimed disability based on herbicide exposure and the veteran was a member of a military police (MP) unit or was assigned an MP MOS that required duty at or near the base perimeter, then herbicide exposure on a facts found or direct basis is to be acknowledged.

Additionally, effective June 19, 2015, VA amended its regulation governing individuals presumed to have been exposed to certain herbicides by expanding the regulation to include an additional group consisting of individuals who performed service in the Air Force or Air Force Reserve under circumstances in which they had regular and repeated contact with C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. This Veteran in this case did serve in the Air Force, but it is unclear if she had regular and repeated contact with C-123 aircraft.

For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed, unless the evidence is inherently incredible or consists of statements which are beyond the competence of the person making them. Justus v. Principi, 3 Vet. App. 510 (1992); Meyer v. Brown, 9 Vet. App. 425 (1996); King v. Brown, 5 Vet. App. 19 (1993); Duran v. Brown, 7 Vet. App. 216 (1994). Evidence may be considered new and material if it contributes to a more complete picture of the circumstances surrounding the origin of a veteran’s injury or disability, even where it will not eventually convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010)

Thus, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. There is a low threshold for reopening a claim, one that does not require that a claimant submit a medical opinion to reopen a claim if the new evidence causes VA to obtain a medical opinion. 38 C.F.R. § 3.156(a) (2016). Rather, if there is newly submitted evidence of current disability which in connection with the prior evidence, raises a reasonable possibility of substantiating the claim, and the element of a nexus could be established by providing a VA examination, the claim may be reopened. That reopening then triggers VA’s duty to assist.

In this case, the additional evidence includes additional information regarding the Veteran’s service in Thailand as well as additional pertinent guidance for VA in adjudicating these claims. Therefore, the claim of entitlement to service connection for DM is reopened.

ORDER

The application to reopen the claim of entitlement to service connection for DM is granted.

REMAND

The claim for service connection for DM has been reopened. The Board finds that the May 2010 VA’s Compensation Service’s bulletin containing further information concerning the use of herbicides in Thailand during the Vietnam era should be associated with the record.

As noted above, it would be useful for the JSRRC to be contacted to determine the nature of the Veteran’s duties with the Korat AFB in Thailand to assess whether her service placed her on or near the perimeters of a Thailand military base and/or required regular and repeated contact with C-123 aircraft. If the Veteran’s service in Thailand was not of that nature or during the applicable time period for such considerations, the report of the JSRRC should so state.

In addition, it has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). As such, a VA medical opinion should be obtain regarding whether current DM is otherwise attributable to service or incepted in the one year following service.
Accordingly, the case is REMANDED for the following action:

1. Associate with the record the May 2010 VA’s Compensation Service’s bulletin containing further information concerning the use of herbicides in Thailand during the Vietnam era.

2. Contact JSRRC. The RO/AMC shall send, along with a copy of this Remand, a description of the Veteran’s account of her service and exposure to herbicides in Thailand and the JSRRC should indicate, if possible, the likelihood that the Veteran was exposed to herbicides. In that assessment, the JSRRC should determine if the Veteran’s duties at Korat AFB placed her on or near the perimeters of Thailand military bases and/or required regular and repeated contact with C-123 aircraft. If the Veteran’s service in Thailand was not of that nature or during the applicable time period for such considerations, the report of the JSRRC should so state.

3. Obtain a VA medical opinion. The examiner should review the record. The examiner should provide an opinion as to whether it is at least as likely not (50 percent or greater probability) that DM had its clinical onset during service, was manifest within one year of service, or is related to any in-service disease, event, or injury. The examiner should provide a complete rationale for all opinions expressed and conclusions reached.

3. Then readjudicate the claim on appeal in light of all of the evidence of record. If the issue remains denied, the Veteran should be provided with a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2021).

S. L. Kennedy
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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