Citation Nr: 1413889 Decision Date: 04/01/14 Archive Date: 04/11/14 DOCKET NO. 11-11 750 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus, type 2, claimed as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2008 rating decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA), which determined that new and material evidence was not received to reopen a service connection claim for type 2 diabetes mellitus. The Veteran testified before a Decision Review Officer sitting at the RO in March 2011, and before the undersigned Veterans Law Judge via videoconference in January 2012. Copies of the hearing transcripts are of record and have been reviewed. After this case was certified to the Board, congressional inquiries as to the status of the claim were received. FINDINGS OF FACT 1. In an unappealed February 2004 rating decision, the RO denied the Veteran's original claim of entitlement to service connection for type 2 diabetes mellitus. 2. The evidence received since the last final rating does not relate to an unestablished fact necessary to substantiate the diabetes claim, and does not raise a reasonable possibility of substantiating this claim. CONCLUSIONS OF LAW 1. The RO's February 2004 rating decision that denied service connection for type 2 diabetes mellitus is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). 2. New and material evidence has not been received to reopen a claim of entitlement to service connection for type 2 diabetes mellitus. 38 U.S.C.A. §§ 5108, 5107 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. Duties to Notify and Assist With respect to the Veteran's petition to reopen the service connection claim for type 2 diabetes mellitus, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In claims to reopen, prior to the adjudication of petitions to reopen service connection claims, a veteran is to be given notice of the elements of service connection, the elements of new and material evidence, and the reasons for the prior denial. Kent v. Nicholson, 20 Vet. App. 1, 5 (2006). Here, the RO sent a pre-adjudicatory VCAA notice letter to the Veteran in January 2008 that was compliant with the holding in Kent, because it sufficiently explained the bases of the February 2004 prior denial of service connection for diabetes mellitus (i.e., the deficiencies in the evidence when this claim was previously considered). That notice letter also informed him of the evidence required to substantiate his service connection claim and of his and VA's respective responsibilities in obtaining this supporting evidence. An additional VCAA letter was sent to the Veteran in January 2009. The Veteran has also been advised as to how downstream disability ratings and effective dates are assigned. VA has satisfied its duty to notify the Veteran concerning his claim. VA's duty to assist includes assisting him in obtaining his service treatment records (STRs) and pertinent post-service treatment records (VA) and providing an examination when needed to assist in deciding the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished to the extent possible and, therefore, appellate review of this claim may proceed without unduly prejudicing the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's STRs; his service personnel records; VA and private medical evidence; an excerpt from Department of Defense; letter from Deputy Assistant Secretary of the Army; DRO and Board hearing transcripts; internet articles regarding the use of Agent Orange outside of Vietnam; and lay contentions. The Veteran was not afforded an examination in association with his petition to reopen. As discussed below, the Board concludes that new and material evidence has not been received to reopen this claim. The duty to assist does not include the provision of a medical examination or opinion, unless new and material evidence has been secured. See 38 C.F.R. § 3.159 (c)(4)(iii). Accordingly, there is no duty to provide an examination and no error exists. See id. The Veteran has not identified, and the record does not otherwise suggest, any additional existing evidence that is necessary for a fair adjudication of this claim that has not been obtained and that is obtainable. He has received all essential notice, has had a meaningful opportunity to participate effectively in the development of this claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). VA's duties to notify and assist him with this claim have been satisfied. Petition to Reopen Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. §7105; 38 C.F.R. §§ 3.160, 20.201, 20.302 (2013). To reopen a claim, new and material evidence must be presented or secured. 38 U.S.C.A. § 5108 (West 2002). "The Board does not have jurisdiction to consider [the previously adjudicated claim] unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Board is neither required nor permitted to analyze the merits of a previously-disallowed claim if new and material evidence is not presented or secured. Butler v. Brown, 9 Vet. App. 167, 171 (1996). When determining whether a claim should be reopened, the credibility of the newly- submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). "New" evidence is defined as 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) (2013). In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the United States Court of Appeals for Veterans Claims (Court) held that when evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. In this case, the RO denied, as relevant, the Veteran's original service connection claim for type 2 diabetes mellitus in a February 2004 rating decision. Although a current disability was shown in the private and VA medical evidence, the Veteran had no service in the Republic of Vietnam during the Vietnam War Era and is therefore not presumed to have been exposed to herbicides in Vietnam. In addition, the Department of Defense inventory did not contain any instance of herbicide use, testing, or disposal at Aberdeen Proving Ground from 1966 to 1968. The RO determined there was no evidence that the Veteran had been exposed to herbicides during service, to include at Aberdeen Proving Ground from 1966 to 1968, as claimed by the Veteran. The Veteran did not appeal the February 2004 denial of service connection for diabetes mellitus and it became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104(a), 20.200, 20.302, 20.1103 (2013). In December 2007, the Veteran sought to reopen his diabetes claim. In support of his claim, he submitted evidence indicating that tactical herbicides were used at Aberdeen Proving Ground between May 1965 and May 1966. After reviewing the evidence, the RO denied such claim in the November 2008 rating decision and this appeal ensued. Based on the procedural history outlined above, the last final and binding denial pertinent to this claim now under consideration is the February 2004 rating decision. At issue here is whether the evidence received since the last final rating decision relates to an unestablished fact that the Veteran was exposed to herbicides during service and raises a reasonable possibility that the Veteran's current type 2 diabetes mellitus is etiologically related to claimed exposure. The Veteran's contention is that he was exposed to herbicides while conducting maintenance duties (ie, spraying herbicides on the walkways) while stationed at Aberdeen Proving Ground. The evidence received since the final rating decision includes lay contentions; internet articles; service personnel records; additional VA medical and private medical evidence; an excerpt prepared by Dr. Young for the Office of the Under Secretary of Defense; and a December 2007 letter from the Department of Army. The Board considered the newly received VA medical evidence, specifically to include an August 2007 VA Agent Orange registry examination report which shows a continued diagnosis of diabetes. In the report, the physician indicated that the Veteran's diabetes did not entitle him to presumptive service connection because he did not have Vietnam service. The physician indicated that she reviewed the examination results with the Veteran and told him that the examination was for informational purposes, and not to be used for disability or VBA rating purposes. After this examination, the VA physician wrote a letter to the Veteran in the same month, stating that the results of his examination and laboratory tests show that he has a health condition recognized for possible service connection related to his military service. The examination report and subsequent letter are considered new evidence, but they are not material because they do not relate to an unestablished fact necessary to substantiate the claim. As indicated, one of the primary issues is whether the Veteran was actually exposed to herbicides during his military service, which the VA medical evidence does not address. A current diagnosis of diabetes was already considered by the RO in 2004. In addition, the fact that presumptive service connection is available for diabetes mellitus based on Agent Orange exposure in Vietnam was already considered by the RO in 2004. The remaining VA medical evidence, as well as the private medical evidence added to the claims file since the last final decision, does not raise a reasonable possibility of substantiating the claim; it either continues the diagnosis of diabetes or is not relevant to the instant claim. In support of his contention that he was exposed to herbicides during service, the Veteran submitted a December 2007 letter in which the Deputy Assistant Secretary of the Army (Environment, Safety, and Occupational Health) responded to a congressional inquiry regarding the use of herbicides at Aberdeen Proving Ground. The official's research reflected that Agent Orange was only used for tactical purposes at Aberdeen Proving Ground in 1966 (as relevant here), and not used as a local herbicide. The official reiterated that herbicides were not used for routine vegetation control purposes at Aberdeen Proving Ground, and stated there are no available records at the installation that indicate otherwise. In support of the letter, the official referenced a document prepared by Dr. Young for the Office of the Under Secretary of Defense titled, "The History of the US Department of Defense Programs for Testing, Evaluation, and Storage of Tactical Herbicides." This document indicates that only personnel affiliated with Fort Detrick's Biological Laboratories tested tactical herbicides at Aberdeen Proving Ground from May 1965 to May 1966. It further noted that the tests performed were closed to the public. The official enclosed an excerpt of that document. The excerpt titled "DOD Tactical Herbicide Sites," discussed testing at Site 14 located at Aberdeen Proving Ground for the period from May 1965 to May 1966. The excerpt indicated that studies were done to evaluate a new spraying apparatus for aerial applications of herbicides to forest vegetation. The Veteran's service personnel records, newly received in October 2008, show that on May 28, 1966, he was en route to Aberdeen Proving Ground, Maryland, from Fort Jackson, South Carolina. On June 12, 1966, he began Advanced Individual Training at Aberdeen Proving Ground. The Veteran's service personnel records, the December 2007 letter, and reference document and excerpt are considered new because they were not previously of record when the final denial was adjudicated. However, they do not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim. The Veteran does not assert that he used any tactical herbicides during service, and even if he did assert such, his service personnel records show an official start date of June 12, 1966, which falls beyond the testing of tactical herbicides between May 1965 and May 1966 at Aberdeen Proving Ground. The Board considered the Veteran's newly received statements that although his start date at Aberdeen Proving Ground was in June 1966, he arrived a bit earlier in late- May 1966. In October 2008, VA received a buddy statement from H.W.M., in which he stated that during his 14th week of training with the Veteran at Aberdeen Proving Ground, the testing of herbicides was being conducted. In an October 2009 statement, H.W.M. remembered seeing the Veteran in late May and June 1966 at Aberdeen Proving Ground. During the DRO hearing, the Veteran testified that he arrived on May 28, 1966. However, the Veteran's official service personnel records make no mention of the Veteran arriving early at Aberdeen Proving Ground. Rather, his service personnel records indicate that he was placed "en route" on May 28, 1966, which was a Saturday. The lay statements regarding arriving early at Aberdeen Proving Ground are new but do not raise a reasonable possibility of substantiating the claim. First, it is unlikely that he arrived at Aberdeen, Maryland on the same day he was placed en route from South Carolina. And even considering his assertion that he arrived on May 28, 1966, which was a Saturday, the only days of potential exposure would have been Sunday, May 29, 1966, or Monday, May 30, 1966. And again, the evidence of record only indicates that tactical herbicides were tested at Aberdeen Proving Ground in May 1966, as relevant. The Board also considered a newly received email dated on April 15, 2009, from C&P Policy Staff. In this email, C&P staff noted that it reviewed the Department of Defense records regarding the testing and use of herbicides outside of Vietnam. The staff indicated that although some testing of tactical herbicides was conducted in remote locations of Aberdeen Proving Ground from May 1965 to May 1966, it was not near base personnel and was terminated before the Veteran arrived. This evidence is also new but it is not material to the claim. The Board also considered the Veteran's assertion that he may have been exposed to residual herbicides while stationed at Aberdeen Proving Ground. However, in the April 2009 email, the C&P staff indicated that a review of Army and EPA toxic assessment reports from 1985 and 1997 give no mention of any Agent Orange or dioxin surface or ground water contamination. The Veteran's statement in this regard is new but is not material to the claim. The internet articles submitted by the Veteran discuss the use of Agent Orange by the U.S. Military outside of Vietnam, to include in Korea, Canada, Arizona, Australia, and Guam. The Veteran's service personnel records do not show that he was stationed in any of those locations. The internet articles, although new, are therefore not material to his claim. New and material evidence has not been received to reopen this claim. The evidence is either not new, or the new evidence does not bear directly and substantially upon the specific matter under consideration, and is not so significant that it must be considered in order to fairly decide the merits of the claim. The requirements to reopen this claim have not been met, and the appeal must be denied. As new and material evidence to reopen the previously denied claim has not been received, the benefit-of-the-doubt doctrine is inapplicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER The appeal is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs