Citation Nr: 0919005 Decision Date: 05/20/09 Archive Date: 05/26/09 DOCKET NO. 04-44 151 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for diabetes mellitus, type II, to include diabetic neuropathy. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Emily Tamlyn, Associate Counsel INTRODUCTION The Veteran served on active military duty from October 1963 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating action of the Department of Veterans Affairs Regional Office (RO) in Chicago, Illinois. In that decision, the RO confirmed and continued the previous denial for service connection for diabetes mellitus type II with diabetic neuropathy. In May 2006, the Veteran testified before undersigned at a Board hearing. The transcript is associated with the file. A December 2006 Board decision noted that this case was stayed due to ongoing litigation. In 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Haas v. Nicholson, 20 Vet. App. 257 (2006) that reversed a Board decision that had denied service connection for disabilities claimed as a result of exposure to herbicides. VA appealed the Court's decision in Haas to the United States Court of Appeals for the Federal Circuit (Federal Circuit); and, in order to avoid burdens on the adjudication system, delays in the adjudication of other claims, and unnecessary expenditure of resources through remand or final adjudication of claims based on Court precedent that might ultimately be overturned on appeal, the Secretary of Veterans Affairs, on September 21, 2006, imposed a stay at the Board on the adjudication of claims affected by Haas. The specific claims affected by the stay included those involving claims based on herbicide exposure in which the only evidence of exposure was the receipt of the Vietnam Service Medal or service on a vessel off the shore of Vietnam. In Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009), the Federal Circuit reversed and remanded the Court's 2006 Haas decision. The Haas case impacted the Veteran's claim of entitlement to service connection for diabetes mellitus; but, as the Haas litigation has concluded, the Board will proceed at this time with the adjudication of this claim. FINDINGS OF FACT 1. The RO denied service connection in a January 2002 decision, the Veteran did not file a notice of disagreement, and the decision became final. 2. Evidence received since the January 2002 rating decision raises a reasonable possibility of substantiating the service connection claim for diabetes mellitus, type II, with diabetic neuropathy. 3. The evidence reasonably shows that the Veteran, who has a current diagnosis of diabetes mellitus, was in the Republic of Vietnam during service. CONCLUSIONS OF LAW 1. The January 2002 rating decision that denied the Veteran's service connection claim for diabetes mellitus, type II, with diabetic neuropathy is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2008). 2. Evidence received since the January 2002 rating decision is new and material, and the Veteran's claim for service connection for diabetes mellitus, type II, with diabetic neuropathy is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2008). 3. Resolving doubt for the Veteran, diabetes mellitus, type II, with diabetic neuropathy may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1116, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.313 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 (West 2002), 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2008), eliminated the concept of a well- grounded claim, redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. Without deciding whether the notice and development requirements of VCAA have been satisfied with regard to the Veteran's claim to reopen the previously denied issue of entitlement to service connection for diabetes mellitus, type II, with diabetic neuropathy in the present case, the Board concludes that this law does not preclude the Board from adjudicating this matter. The Board is taking action favorable to the Veteran with regard to the new and material issue on appeal, and a decision at this point poses no risk of prejudice to him. See, Bernard v. Brown, 4 Vet. App. 384, 394 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Without deciding whether the notice and development requirements of VCAA have been satisfied for the Veteran's service connection claim, it is also the Board's conclusion that the law does not preclude the Board from adjudicating this portion of the Veteran's claim. The Board is taking action favorable to the Veteran by granting service connection for diabetes mellitus, type II, with diabetic neuropathy. A decision at this point poses no risk of prejudice to the Veteran. Bernard, 4 Vet. App. at 394. The agency of original jurisdiction will be responsible for addressing any notice defect with respect to the rating and effective date elements when effectuating the award. See, Dingess v. Nicholson, 19 Vet. App. 473 (2006). II. Legal Criteria The claim for entitlement to service connection may be reopened if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the applicable provisions, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2008). Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2008). Service connection will be presumed for certain chronic diseases enumerated in 38 C.F.R. § 3.309, including diabetes mellitus, if manifest to a compensable degree within the year after service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. A presumption exists regarding service connection for diseases associated with exposure to herbicide agents during service in the Republic of Vietnam. See 38 U.S.C.A. § 1116. Under the provisions of the implementing regulation, 38 C.F.R. § 3.309(e), if a veteran was exposed to an herbicide agent during active military, naval, or air service, the diseases set forth in 38 C.F.R. § 3.309(e) shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. These diseases include chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, multiple myeloma, Non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (including cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma. The term acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. See 38 C.F.R. § 3.309(e), Note 2 (2008). According to 38 C.F.R. § 3.307(a)(6)(iii), a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. Service in Vietnam includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 C.F.R. § 3.313(a) (2008). As mentioned above, the Federal Circuit has agreed with VA's interpretation of its regulations that "duty or visitation" in the Republic of Vietnam contemplates actual presence on the landmass of the country. Haas v. Peake, 525 F.3d at 1186. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. §§ 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. III. Analysis The RO first considered the Veteran's claim for service connection for diabetes mellitus, type II, with diabetic neuropathy in January 2002. At that time, the RO denied the Veteran's claim. The Veteran did not file a notice of disagreement and the January 2002 RO decision became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The claim for entitlement to service connection for diabetes mellitus, type II, with diabetic neuropathy may be reopened if new and material evidence is submitted. Manio, 1 Vet. App. 140. The evidence before VA at the time of the prior final decision in January 2002 consisted of service treatment records, private medical records and the Veteran's statement when he made his claim. Evidence received since the January 2002 rating action includes several May, June and September 2003 statements from airmen the Veteran served with in Thailand; a September 2004 email from a VA policy staffer regarding the Department of Defense information on herbicide use; an August 2004 U.S. Armed Services Center for Unit Records Research (CURR) reply; an April 2006 Social Security Administration (SSA) decision; a February 2008 statement from the Veteran's parents and multiple statements from the Veteran. The Board finds that new and material evidence has been submitted subsequent to the January 2002 decision. The most significant additional piece of evidence is the February 2008 statement from the Veteran's parents because it states that they received a letter from the Veteran informing them about his layover in Saigon, Vietnam en route to his final destination in Thailand. This new evidence, either by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the Veteran's service connection claim. It raises a reasonable possibility of establishing the claim. 38 C.F.R. § 3.156(a). The evidence is considered new and material and the claim for service connection for diabetes mellitus, type II, with diabetic neuropathy. As the Board has determined that new and material evidence has been submitted, it is necessary to consider whether the Veteran would be prejudiced by the Board proceeding to a decision on the merits. As the determination is ultimately favorable to the Veteran, the Board finds that he would not be prejudiced by its review of the merits at this time. See Bernard, 4 Vet. App. at 394. As the Veteran's claim is reopened, the Board will consider his service connection claim. The Veteran asserted in his original August 2001 claim that the Air Force built the site he was stationed at in Thailand next to a small swamp. He said they consistently sprayed herbicide throughout the site and at the landing field to keep foliage at a minimum. He felt the herbicide caused his diabetes and diabetic neuropathy. Service treatment records do not show a diagnosis of diabetes. The Veteran's DD 214 does show that he is a recipient of the Vietnam Service Medal with one bronze service star. Private medical records from March and December 1997 showed the Veteran had controlled diabetes mellitus, type II. An August 2005 VA examination for peripheral nerves documents that the Veteran's diagnosis of peripheral neuropathy. An August 2004 VA Neurology consultation note assesses "peripheral primarily sensory neuropathy, most likely due to [diabetes mellitus]." An April 2006 SSA decision found the Veteran disabled from November 2003 because of (among other things) diabetes and peripheral neuropathy. In a June 2003 statement submitted with the Veteran's claim to reopen, he specifically named the site, Camp Mukdahan, Thailand, identified his unit (Detachment 6, 621st Tactical Control Squadron) and gave the dates of his time there (July 1, 1966 to June 30, 1967). He submitted pictures taken during his service. Additionally, the Veteran submitted five statements from airmen who served with him in Thailand. All statements attest to the fact that herbicide was sprayed around the base to kill foliage. A May 2003 statement from RWB also stated he observed aircraft spraying 40 miles north of the base in an insurgency area. Another May 2003 statement from JTH asserts he saw herbicides and insecticide being used. In the Veteran's July 2003 notice of disagreement, he stated that because he was able to provide eyewitness accounts of herbicide usage, he should be service connected for diabetes. He pointed out that the government had conceded widespread use of herbicides. In a September 2004 statement, the Veteran further explained that herbicide was sprayed on wire, paths, around open tents, on the fields used for physical training, around the latrine, in bunkers, and near the chow hall. He stated that rubber flip-flops were often worn to reduce foot fungus and the spray would routinely get on their feet. At the September 2004 decision review officer (DRO) hearing the Veteran stated that he deplaned in Vietnam "for an hour or two" while on the way to his final destination in Thailand. (DRO Transcript, p 3.) He later clarified for the DRO that he was on a Continental Airlines flight that stopped in Saigon. (DRO Transcript, p 8-9.) He also stated he would routinely pick up herbicide barrels, but that he could not remember what type they were. (DRO Transcript, p 5.) An August 2004 CURR reply stated that there is no documentation available to verify that the Veteran was exposed to herbicides while serving in Mukdahan, Thailand. The reply explained: "Our research at this time indicates that herbicides were not sprayed near U.S. personnel in Thailand. Herbicides were only sprayed in Thailand for test purposes in the early and mid-1960s remote jungle areas." A September 2004 response email from a VA policy staffer to the RO states the following: [Department of Defense] provided VA with an inventory of herbicide operations at specific times and geographic locations. DOD estimates the inventory reflects 70 to 85 percent of herbicide use, testing and disposal in locations other than Vietnam. DOD's inventory does not contain any instance of herbicide use, testing or disposal in Thailand in 1966 or 1967. DOD's inventory does not contain records of herbicide use in routine base maintenance. The Veteran contended in his formal appeal that because the Department of Defense could not say with certainty where herbicides were used, reasonable doubt existed and his service connection claim should be granted. In a December 2007 statement, the Veteran cited and provided a June 2005 letter from an Air Force Colonel to a member of congress on the Committee on Veterans' Affairs. On the issue of herbicide usage, the Colonel stated in the letter that commanders were at liberty to use herbicides for defoliation around their activities with no accountability. As a result, no further specific information on herbicide use was available. A February 2003 notarized statement signed by both of the Veteran's parents was submitted. The Veteran's parents asserted that they received a letter from their son mailed from Thailand in 1966. The letter informed them about his journey; including that his plane had stopped in Saigon, Vietnam on the way to Bangkok, Thailand and that he was off the plane for several hours. The Board finds that service connection for diabetes mellitus, type II, with diabetic neuropathy is warranted. As mentioned above, a presumption of exposure to herbicides in Vietnam under 38 C.F.R. § 3.307(a)(6)(iii) is available if service in Vietnam is shown. Service in Vietnam includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 C.F.R. § 3.313(a) (2008). Due to the fact that there is no diagnosis in service or one year after service, direct service connection is not at issue. This case comes down to whether the Veteran can establish service in Vietnam so that the presumption may apply. In reaching its decision, the Board has considered the lay statements of record. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Board finds both the Veteran's statement that he had a layover in Vietnam and his parents' February 2008 statement that this layover was reported to them during his service to be credible. The Board affords the statements enough weight so that it finds the claim to be in equipoise. As there is an approximate balance of positive and negative evidence regarding whether the Veteran was in Vietnam, the Board finds that the presumption under 38 C.F.R. § 3.307(a)(6)(iii) should operate in the Veteran's favor. The benefit of the doubt is given to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As a result, the claim for service connection for diabetes mellitus, type II, with diabetic neuropathy is granted. ORDER New and material evidence has been received to reopen a previously denied claim for service connection for diabetes mellitus, type II, with diabetic neuropathy. Service connection for diabetes mellitus, type II, with diabetic neuropathy is granted. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs