Citation Nr: 18160525
Decision Date: 12/28/18	Archive Date: 12/26/18

DOCKET NO. 15-20 139
DATE:	December 28, 2018
ORDER
An effective date prior to March 25, 2013 for the award of nonservice-connected (NSC) pension is denied.   
Service connection for diabetes mellitus, type II, to include as a result of exposure to herbicide agents, is denied.
Service connection for a heart condition, to include as a result of exposure to herbicide agents, is denied.
FINDINGS OF FACT
1. There are no documents or communications of record dated prior to March 25, 2013 that constitute a claim for pension benefits; nor did incapacitation prevent the Veteran from filing a claim for NSC pension for at least 30 days following the date he became disabled.
2. The Veteran’s diabetes mellitus, type II, is not etiologically related to his active service.
3. The Veteran’s heart condition is not etiologically related to his active service.
CONCLUSIONS OF LAW
1. The criteria for entitlement to an effective date prior to March 25, 2013 for the award of NSC pension have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.
2. The criteria for entitlement to service connection for diabetes mellitus, type II, to include as a result of exposure to herbicide agents, have not been met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309.
3. The criteria for entitlement to service connection for a heart condition, to include as a result of exposure to herbicide agents, have not been met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active military service from February 1964 to July 1973.  A Statement of the Case (SOC) was issued in May 2015, and additional evidence obtained by VA in the form of VA treatment records and Social Security Administration (SSA) records was subsequently associated with the record.  Although a supplemental SOC has not been issued following receipt of these records, and hence they were not initially reviewed by the RO, the records are either largely duplicative of relevant evidence that had been so reviewed or do not contain evidence which is relevant to the claim, as the SSA records contain VA medical records already of record, and none of these records contain evidence of an in-service event or manifestation of a chronic condition within a year of the Veteran’s active service, the elements upon which the Veteran’s claims for service connection herein turn.  They are also not relevant to the Veteran’s earlier effective date claim.  As such, they contain evidence which is cumulative, duplicative, or not pertinent to the Veteran’s claims.  Thus, a waiver of initial RO consideration is not needed.  38 C.F.R. §§ 19.37, 20.1304.
Further, the Board notes that the Veteran was previously denied service connection for diabetes mellitus in a July 2009 rating decision.  Ordinarily, once a VA decision becomes final, the Veteran must submit new and material evidence to reopen the claim.  See 38 C.F.R. § 3.156(a).  However, new and material evidence is not required to reopen a claim when, after a final decision, VA receives relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim.  38 C.F.R. § 3.156(c). 
Here, service department records, specifically, relevant military personnel records detailing the Veteran’s foreign service during the Veteran era, were associated with the claims file in July 2013. These records were not associated with the claims file at the time of the previous denial, despite having been created during the Veteran’s period of service, and these records are relevant to the claim as they relate to the Veteran’s service in or around areas wherein he could have been exposed to Agent Orange.  Thus, new and material evidence is not required, and the claim for service connection for diabetes mellitus, type II, will be considered on the merits.  38 C.F.R. § 3.156(c).  
Effective Date for NSC Pension
Nonservice-connected pension benefits are available to a veteran who served for 90 days or more during a period of war and who is permanently and totally disabled due to nonservice-connected disabilities which are not the result of his own willful misconduct. 38 U.S.C. § 1521 (a); 38 C.F.R. § 3.342 (a). 
In general, the effective date of an award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400(a). 
Further, an award of disability pension may not be effective prior to the date entitlement arose.  38 C.F.R. § 3.400(b).  For claims received on or after October 1, 1984, as is the case here, the effective date of an award of disability pension is the date of receipt of claim.  Id.  If, within one year from the date on which the veteran became permanently and totally disabled, he files a claim for a retroactive award and establishes that a physical or mental disability, which was not the result of his willful misconduct, was so incapacitating that it prevented him from filing a disability pension claim for at least the first 30 days immediately following the date on which he became permanently and totally disabled, the disability pension award may be effective from the date of receipt of claim or the date on which he became permanently and totally disabled, whichever is to his advantage.  While rating board judgment must be applied to the facts and circumstances of each case, extensive hospitalization will generally qualify as sufficiently incapacitating to have prevented filing the claim.  Id. 
The Veteran has not stated, and the evidence does not otherwise show, that he had a physical or mental disability that was so incapacitating as to prevent him from filing a disability pension claim for at least the first 30 days immediately following the date he became permanently and totally disabled, either on the basis of extensive hospitalization or due to other factors.  Moreover, the Veteran has not alleged, nor does the evidence show, that there are documents or communications of record dated prior to March 25, 2013 that constitute a claim for NSC pension benefits.  
Consequently, as a matter of law, the effective of NSC pension benefits can be no earlier than March 25, 2013, the date VA received the Veteran’s claim.  Therefore, an earlier effective date is denied.  See 38 C.F.R. § 3.400 (b).
Service Connection
The Veteran asserts that his diabetes mellitus and heart condition result from him having been exposed to Agent Orange in service.
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303.
Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).
Additionally, service connection can also be established through application of a statutory presumption for chronic diseases, like diabetes mellitus and specific heart conditions, when manifested to a compensable degree within a year of separation from service.  38 C.F.R. §§ 3.307, 3.309.  If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of “continuity of symptoms” after service is required for service connection.  38 C.F.R. § 3.303(b).  
Presumptive service connection due to in-service exposure to herbicide agents
Further, a veteran who served in Vietnam during the Vietnam era is presumed to have been exposed to Agent Orange.  38 U.S.C. § 1116; 38 C.F.R. § 3.307.  Certain enumerated chronic diseases associated with exposure to herbicide agents (Agent Orange) may be service connected on a presumptive basis as due to exposure to herbicides.  38 C.F.R. § 3.309(e).  Of note, diabetes mellitus and ischemic heart disease (IHD) are diseases that VA regulations include on the presumptive list.  No other heart condition is on the list. 
Review of the record does not show that the Veteran served in the Republic of Vietnam.  Although the Veteran wrote in his May 2009 claim for service connection for diabetes mellitus that he served in Vietnam from October 1968 to sometime in 1969, his personnel records show him as having been stationed in Fort Huachuca, Arizona during that time period.  Further, a June 2009 personnel information exchange system (PIES) reply from the Joint Services Records Research Center (JSRRC) showed that there was no evidence in the Veteran’s file to substantiate any service in the Republic of Vietnam.  The Veteran’s service personnel records also do not show he served in the Republic of Vietnam at any time. Therefore, not having served in the Republic of Vietnam, he is not presumed to have been exposed to an herbicide agent in Vietnam. 38 U.S.C. § 1116(f).
However, the Veteran’s service personnel records do reflect that he traveled to Thailand with the United States Army Pacific (USARPAC) in October 1969 and was assigned to the HHD 325th Signal Battalion from November 1969 to September 1971 States.  While assigned to the HHD 325th Signal Battalion, the Veteran’s duty title was Cook or First Cook. 
Herbicide exposure may be shown for certain service in Thailand, as VA has 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.  Therefore, when herbicide related claims from veterans with Thailand service are received, VA is instructed to evaluate the treatment and personnel records to determine whether a veteran’s service activities involved duty on or near the perimeter of the military base where that veteran was stationed. 
The majority of troops in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang.  If a U.S. Air Force veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. However, this applies only during the Vietnam era, from February 28, 1961 to May 7, 1975. 
VA’s procedures for handling claims based on exposure to Agent Orange for veterans who served in Thailand allow for a presumption of exposure to attach depending on whether or not several criteria are met.  This may depend on the claimant’s branch of service, the duty station involved, to include listed Royal Thai Air Force Bases (including Korat and Ubon), the claimant’s military occupation specialty, and whether or not the claimant’s service in Thailand is shown to have included duties on or near the perimeter of a base. Additionally, for those who served at a U.S. Army Base in Thailand during the Vietnam era, the same presumptions apply so long as duties involved duties on or near the perimeter of a base.
The Veteran’s military occupation specialty of Cook is not one that would innately require service near the base perimeter in Thailand.  Further, the Veteran has not asserted that he performed duties near a base perimeter in Thailand, nor is there any evidence of record reflecting such.  Moreover, a December 26, 2013 VA Memorandum from JSRRC associated with the claims file states that the Veteran’s exposure to Agent Orange or other tactical herbicides could not be conceded for his Thailand service.  
In light of the above, the Board does not find that the Veteran was exposed to herbicide agents in service.  Thus, service connection is not warranted for the Veteran’s claimed heart condition or diabetes mellitus, type II, due to exposure to Agent Orange on a presumptive basis.  Although the Veteran served in Thailand, he has not been shown to have engaged in perimeter security duty, or any other duties along a base perimeter, during his Thailand service. 
Direct service connection and presumptive service connection for chronic conditions
The Board has also considered whether the Veteran’s diabetes mellitus and heart condition can be service-connected on a direct basis.  They cannot in this case, as neither condition was onset in service and neither can be linked to any in-service event.  The Veteran’s service treatment records are silent for complaints of or treatment for diabetes mellitus or a heart condition.  Further, at the Veteran’s July 1973 separation examination, the examiner found him to be clinically normal as to all body systems.  Thus, the Veteran has not been shown to have suffered these conditions, or symptoms thereof, in service.
As to establishing service connection through a presumption for chronic conditions, neither the Veteran’s diabetes mellitus nor heart condition were shown to have manifested to a compensable degree within a year of his separation from service.  To the contrary, the Veteran’s diabetes mellitus and heart condition were not diagnosed until 2006 and 2013, respectively, putting both diagnoses over thirty years after the Veteran left active service.
As such, service connection on a direct basis or on a presumptive basis for chronic conditions is also not warranted for the Veteran’s diabetes mellitus and heart condition.  Thus, the Veteran’s claims for service connection for diabetes mellitus and service connection for a heart condition are denied.
 
 MATTHEW W. BLACKWELDER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. Davidoski, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.