Citation Nr: 1106624 Decision Date: 02/17/11 Archive Date: 02/28/11 DOCKET NO. 09-39 835 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for diabetes. 2. Entitlement to service connection for diabetes as due to herbicide exposure. 3. Entitlement to service connection for diabetic retinopathy. 4. Entitlement to service connection for bilateral peripheral vascular disease, including as secondary to diabetes. 5. Entitlement to service connection for peripheral neuropathy of the lower extremities, including as secondary to diabetes. 6. Entitlement to service connection for erectile dysfunction, including as secondary to diabetes. WITNESSES AT HEARING ON APPEAL Appellant, his wife, T. C. ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to June 1973. This appeal to the Board of Veterans' Appeals (Board) arises from a rating decision, of the Pittsburgh Pennsylvania Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2010, a Board hearing was held at the RO before the undersigned Veterans Law Judge; a transcript of that hearing is of record. The Board must first address the question of whether new and material evidence to reopen the claim for service connection for diabetes has been received because this matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Given the Board's favorable disposition of the petition to reopen, this matter has been characterized as encompassing the first two issues set forth on the title page. The issues of entitlement to service connection for peripheral neuropathy, peripheral vascular disease and erectile dysfunction are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Veteran will be notified if further action is required on his part. FINDINGS OF FACT 1. Service connection for diabetes was denied by a March 2003 rating decision. It was held that the diabetes was shown years after service, that there was no evidence the Veteran had served in Vietnam, and other exposure to herbicides was not shown. He was notified of the decision and did not appeal. 2. Evidence received since the March 2003 rating decision is not cumulative or redundant and presents a reasonable possibility of substantiating the claim. 3. The Veteran has diabetes and diabetic retinopathy. 4. Affording the Veteran the benefit of the doubt, the evidence reasonably shows that he was exposed to herbicides while stationed at the Ubon Air Force Base in Thailand. CONCLUSIONS OF LAW 1. The March 2003 rating decision denying service connection for diabetes mellitus, type II is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.105 (2010). 2. New and material evidence as to the claim for service connection for diabetes mellitus, type II has been received and the claim for service connection is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 3. With resolution of reasonable doubt in the appellant's favor, the criteria for entitlement to service connection for diabetes are met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2010). 4. With resolution of reasonable doubt in the appellant's favor, the criteria for entitlement to service connection for diabetic retinopathy are met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). Regarding the Veteran's claim to reopen and his claims for service connection for diabetes and diabetic retinopathy on the merits, given the favorable outcomes detailed below, an assessment of VA's duties under the VCAA is not necessary. II. Factual Background The Veteran's service personnel records reveal that he served in the 8th Security Police Squadron at Ubon Air Base in Thailand during the time frame between September 1968 and April 1969. His responsibilities included foot patrols to protect mission aircraft and equipment against sabotage, theft and fire. He also served as a Main Gate Guard. A December 2001 private optometrist's progress note reflects that no diabetic retinopathy was seen on dilated fundus exam. On March 2003 VA examination, the Veteran was noted to have a history of diabetes since 2000. The pertinent diagnosis was diabetes mellitus, type 2. In a March 2003 rating decision, the RO denied service connection for diabetes. The RO noted that the Veteran had claimed diabetes due to Agent Orange exposure in Vietnam but that the record only showed that the Veteran served in Thailand. In a June 2008 statement, the Veteran indicated that in 1968 he traveled by military aircraft from Travis Air Force Base in California to his unit in Ubon, Thailand. He noted that the plane stopped enroute in Ton Son Nhut Vietnam for a refueling. He indicated that he got out of the plane during the stop, thus setting foot in Vietnam. An August 2008 letter from the U.S. Army Joint Services Records Research Center (JSRRC) reflects that the Center could not document or verify that the Veteran was exposed to herbicides while serving at Ubon Air Force Base in Thailand. The letter indicates that the available historical documentation did not mention or document any herbicide spraying, testing or storage of herbicides at Ubon Air Force Base. In an August 2008 letter, a fellow serviceman of the Veteran indicated that he traveled with the Veteran to Ubon, Thailand in November 1968. He noted that he and the Veteran flew from Travis Air Force Base in California and that they were "boots down" in Wake Island, Guam, the Philippines and Vietnam on their way to Ubon. The serviceman also remembered that while stopped in Vietnam, the base they were on was under attack. As a result, they received hazardous duty pay for that month. A September 2008 VA ophthalmology progress note reflects that the Veteran was diagnosed with severe diabetic retinopathy. In conjunction with his September 2010 hearing testimony, the Veteran submitted photos of the area around the perimeter of the Ubon Air Base, allegedly taken during service. The photos appear to show dead and dying vegetation, which the Veteran attributed to the spraying of herbicides. Board Internet research revealed a document, discussed in more detail below, indicating that the air base the appellant was at has recently been determined to have been subject to herbicide exposure. As this research aids in the allowance of the portion of the case decided herein, there is no prejudice to the Veteran is using this information without prior notice to him. III. Law and Regulations The March 2003 rating decision is final based on the evidence then of record. 38 U.S.C.A. § 7105. There was notice to the Veteran and no appeal. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105. Under 38 U.S.C.A. § 5108, 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." "New" evidence means existing evidence not previously submitted to agency decision makers. "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. 38 C.F.R. § 3.156(a). 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. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). A disability which is proximately due to or the result of a service- connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease (to include type II diabetes) to a degree of 10 percent or more at any time after service, the veteran is entitled to service connection even though there is no record of such disease during service. 38 C.F.R. § 3.307. 3.309(e). Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307. A recent directive from the VA Office of Public Health and Environmental Hazards indicates that U.S. Air Force Veterans whose service involved duty on or near the perimeters of airbases in Thailand, including Ubon, anywhere between February 28, 1961 and May 7, 1975 may have been exposed to herbicides and may qualify for VA benefits. The directive indicates that a recently declassified Department of Defense (DOD) report written in 1973 titled Project CHECO Southeast Asia Report: Base Defense in Thailand 1968 to 1972 contains evidence that there was a significant use of herbicides on the fenced in perimeters of military bases during this time period to remove foliage that provided cover for enemy forces. See Agent Orange: Thailand Military Bases located at http://www.publichealth.va.gov/exposures/agentorange/thailand.asp . When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) IV. Analysis A. Claim to Reopen As noted above, service connection for diabetes was denied in the March 2003 rating decision based on a finding that the evidence did not show service in Vietnam. The Veteran did not perfect an appeal of this decision and it became final. Consequently, the receipt of new and material evidence is necessary in order to reopen the claim and consider it on the merits. 38 U.S.C.A. § 5108. Since the March 2003 denial, the August 2008 letter from the fellow serviceman was received, corroborating the Veteran's account of setting foot in Vietnam during a stopover of the flight from Travis Air Force Base to Ubon Air Force Base. As this evidence tends to indicate that the Veteran was in Vietnam, it relates to an unestablished fact necessary to substantiate the claim. Additionally, as the letter does corroborate the Veteran's account, it also raises a reasonable possibility of substantiating the claim. Accordingly, the evidence is new and material and the claim may be reopened. 38 C.F.R. § 3.156(a). Similarly, the information concerning the use of Agent Orange in Thailand constitutes new and material evidence. B. Diabetes The evidence clearly shows that the Veteran has type II diabetes. Additionally, as noted above, he has asserted that he was exposed to herbicides that were sprayed on the perimeter of the Ubon Air Base to kill the vegetation in that area. Regarding the first assertion, the Board notes that the Veteran's service personnel records show that he served in a security police squadron as a Patrolman and as a Main Gate Guard. The Board finds that such duty would have reasonably included exposure to the perimeter of the base, an area noted to have been exposed to significant spraying of herbicides. See Agent Orange: Thailand Military Bases, http://www.publichealth.va.gov/exposures/agentorange/thailand.asp . Also, the Veteran submitted photos, which appear to show dead and dying vegetation around the perimeter of the base. Thus, although it has not been independently verified that these photos are a depiction of the base perimeter at the time in question, given the Veteran's established duties and given his reasonable testimony, the Board accepts them as a credible depiction of the degraded vegetation along this perimeter. Consequently, affording the Veteran the benefit of the doubt, the Board finds that the Veteran was exposed to herbicides during his police service along the perimeter of the Ubon, Thailand Air Base. 38 U.S.C.A. § 5107(b). Accordingly, service connection is warranted for diabetes on a presumptive basis, as due to this herbicide exposure. 38 C.F.R. § 3.307, 3.309. As the Veteran has been found to have been exposed to herbicides in Thailand, the Board need not decide whether the evidence actually establishes that he set foot in Vietnam during service. However, the Board finds generally credible the Veteran's testimony, with accompanying buddy statement, that his flight to Thailand included a "boots on the ground" stopover in Vietnam. C. Diabetic retinopathy The Veteran has also been diagnosed with diabetic retinopathy, as shown by the September 2008 VA ophthalmology note. Accordingly, as it is clear by the nature of the diagnosis that the retinopathy is due to the Veteran's now service-connected diabetes, service connection is also warranted for this disability. 38 C.F.R. § 3.310. ORDER As new and material evidence has been received, the claim for service connection for diabetes may be reopened. Service connection for diabetes is granted. Service connection for diabetic retinopathy is granted. REMAND The evidence of record includes diagnoses of peripheral neuropathy and vascular occlusive disease (i.e. peripheral vascular disease) and the Veteran has affirmatively reported suffering from erectile dysfunction. It is contended that all these disorders are related to or aggravated by the diabetes. As the Veteran has just been granted service connection for diabetes, he has not been afforded a VA examination to specifically assess whether these claimed complications have been caused or aggravated by the diabetes. Accordingly, on remand the Veteran should be afforded such an examination. Prior to arranging for the examination, the RO/AMC should ask the Veteran to identify all sources of treatment or evaluation he has received for diabetes, peripheral neuropathy, erectile dysfunction, and peripheral vascular disease since November 2008 and should secure copies of complete records of the treatment or evaluation from all sources identified. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should ask the veteran to identify all sources of treatment or evaluation he has received for diabetes, peripheral neuropathy, erectile dysfunction and peripheral vascular disease since November 2008, and should secure copies of all available records of the treatment or evaluation from all sources appropriately identified. 2. The RO/AMC should arrange for a VA examination by an appropriate medical professional to determine the likely etiology of any current peripheral neuropathy, peripheral vascular disease and/or erectile dysfunction. The Veteran's claims file should be made available for review in conjunction with the examination. Any indicated tests should be performed. The examiner should then provide opinions as to whether it is at least as likely as not (i.e. a 50% chance or greater) that any current peripheral neuropathy, peripheral vascular disease and/or erectile dysfunction has been caused or aggravated by the Veteran's service connected diabetes. If the examiner finds that any of the above conditions are less likely than not caused or aggravated by the diabetes, for each such condition, the examiner should also provide an opinion whether the condition is directly related to the Veteran's military service, to include herbicide exposure therein. The examiner should explain the rationale for all opinions given. 3. The RO/AMC should then readjudicate the claims. If any remain denied, the RO/AMC should issue an appropriate supplemental statement of the case and provide the Veteran the opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant until he is notified. The appellant 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). The claims 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.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs