Citation Nr: A23018908
Decision Date: 08/03/23 Archive Date: 08/03/23

DOCKET NO. 191210-54716
DATE: August 3, 2023

ORDER

New and relevant evidence having been received, the claim of entitlement to service connection for type II diabetes mellitus is granted.

Entitlement to service connection for coronary artery disease (also claimed as ischemic heart disease (IHD)) is granted.

Entitlement to service connection for type II diabetes mellitus is granted.

Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as associated with type II diabetes mellitus is granted.

Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as associated with type II diabetes mellitus is granted.

Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as associated with type II diabetes mellitus is granted.

Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as associated with type II diabetes mellitus is granted.

FINDINGS OF FACT

1. In the August 2007 and February 2013 rating decision(s), the Regional Office denied the Veteran's claim for entitlement to service-connection for type II diabetes mellitus. The Veteran did not perfect his appeal or submit any new and material evidence within the appeal period.

2. Evidence received since the February 2013 rating decision that denied the Veteran's claim for entitlement to service connection for type II diabetes mellitus is new and relevant.

3. The Veteran's coronary artery disease (also claimed as ischemic heart disease (IHD)) is related to the Veteran's presumptive exposure to tactical herbicide agent(s).

4. The Veteran's type II diabetes mellitus is related to the Veteran's presumptive exposure to tactical herbicide agent(s).

5. The Veteran's peripheral neuropathy of the right upper extremity is proximately due to his service-connected type II diabetes mellitus.

6. The Veteran's peripheral neuropathy of the left upper extremity is proximately due to his service-connected type II diabetes mellitus.

7. The Veteran's peripheral neuropathy of the right lower extremity is proximately due to his service-connected type II diabetes mellitus.

8. The Veteran's peripheral neuropathy of the left lower extremity is proximately due to his service-connected type II diabetes mellitus.

CONCLUSIONS OF LAW

1. The criteria to reopen the Veteran's claim for entitlement to service connection for type II diabetes mellitus has been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156.

2. The criteria for entitlement to service connection for coronary artery disease (also claimed as ischemic heart disease (IHD)) are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for entitlement to service connection for type II diabetes mellitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

4. The criteria for entitlement to service connection for peripheral neuropathy of the right upper extremity as secondary to type II diabetes mellitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

5. The criteria for entitlement to service connection for peripheral neuropathy of the left upper extremity as secondary to type II diabetes mellitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

6. The criteria for entitlement to service connection for peripheral neuropathy of the right lower extremity as secondary to type II diabetes mellitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

7. The criteria for entitlement to service connection for peripheral neuropathy of the left lower extremity as secondary to type II diabetes mellitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Air Force from January 1970 until his honorable discharge in January 1974.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2019 rating decision by the Regional Office of the United States Department of Veterans Affairs (VA).

In July 2023, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record on appeal.

Finally, the Board notes that the Veteran has previously applied for entitlement to service connection for disabilities of the eyes associated with type II diabetes mellitus. Although that issue is not currently on appeal, the Veteran is advised that if he is diagnosed with any disabilities that he believes is caused by or aggravated beyond its natural progression by his now service-connected type II diabetes mellitus (including but not limited to diabetic retinopathy), he should re-apply and submit new and relevant evidence with the claim.

New and Relevant Evidence

In general, decisions of the Regional Office and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. However, a finally disallowed claim will be reopened and the former disposition will be reviewed if new and relevant evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108.

Prior to the Appeals Modernization Act, VA would require that the Veteran submit "new and material evidence" to "reopen" his claims. 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. 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.

However, because the current decision is post-Appeals Modernization Act, the Veteran's burden to provide "new and material evidence" is reduced. Instead, the evidence necessary for VA to readjudicate each of his claims must be merely "new and relevant." In this regard, the Appeals Modernization Act defines "relevant evidence" as "evidence that tends to prove or disprove a matter in issue." Pub. L. No. 115-55 § 2(a). The "relevant evidence" standard is a lower standard than the "material evidence" standard because the statutory definition of "relevant" does not require that the new evidence relate to an unestablished fact or raise a reasonable possibility of substantiating the claim. The Board will consider this lower standard in deciding the Veteran's appeal.

Also, because the relaxed, new-and-relevant-evidence standard is new, neither the Court of Appeals for Veterans Claims (Court) nor the U.S. Court of Appeals for the Federal Circuit has created case law related to applications to readjudicate previously denied claims based on submission of new and relevant evidence. Still, because VA has lowered the standard for reopening finally disallowed claims, the Board will consider case law related to claims to reopen based on new and relevant evidence to the extent it remains applicable or is reasonably analogous and pertinent to the present claims. For example, for purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed unless evidence is inherently incredible or beyond the competence of the witness. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, in deciding whether any new and relevant evidence has been submitted sufficient to readjudicate the claims, the Board will presume the evidence is credible unless it is inherently incredible or beyond the Veteran's competence as a lay person.

1. New and relevant evidence having been received, the claim of entitlement to service connection for type II diabetes mellitus is granted.

The Veteran applied for service connection for type II diabetes mellitus in December 2006. This claim was denied in the August 2007 rating decision because the Veteran did not service in the Republic of Vietnam. The Veteran did not appeal this claim, and it became final in August 2008. The Board notes that the Veteran did file a timely Notice of Disagreement (NOD) for the issues of bilateral hearing loss and tinnitus from the August 2007 rating decision. See September 2007 VA Form 21-4138 (Statement in Support of Claim). However, the Veteran did not appeal the issue of entitlement to service connection for type II diabetes.

The Veteran applied for service connection for type II diabetes mellitus in September 2012. See VA Form 21-526b (Veteran's Supplemental Claim for Compensation). This claim was denied in the February 2013 rating decision because the evidence fails to show this condition was incurred in or cause by service, or that it was diagnosed to a compensable degree within one year of discharge from service. The Veteran did not appeal this claim, and it became final in February 2014.

The Veteran applied for service connection for type II diabetes mellitus in March 2019 and July 2019. See March 2019 VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits); see also July 2019 VA Form 20-0995 (Decision Review Request: Supplemental Claim). This claim was denied in the September 2019 rating decision because the evidence submitted is not new and relevant. In December 2019, the Veteran timely filed a Notice of Disagreement. See December 2019 VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement)).

Evidence submitted since the February 2013 final decision includes March 2019 VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits); March 2019 photographs of Ubon Royal Thai Airbase (duplicative); March 2019 VA Form 21-4138 (Statement in Support of Claim); July 2019 VA Form 20-0995 (Decision Review Request: Supplemental Claim); September 2019 Diabetes Mellitus VA examination; December 2019 VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement)); VA Internet Article regarding Thailand Military Bases and Agent Orange Exposure; December 2019 photographs of Ubon Royal Thai Airbase; Private Treatment Records from February 2010; July 2023 Board Hearing Transcript; July 2023 Case Argument.

The Board finds that the Veteran submitted new and relevant evidence for the claim of entitlement to service connection for type II diabetes mellitus. Specifically, September 2019 Diabetes Mellitus VA examination. As this new evidence tends to prove or disprove a matter in issue, the Board will reopen this claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant the claim). To this extent, the Veteran's claim is granted and entitlement to service connection is addressed below.

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).

Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

A Veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). The Vietnam era is the period beginning on February 28, 1961 and ending on May 7, 1975 for veterans who served in the Republic of Vietnam, and the period beginning on February 28, 1961 and ending on May 7, 1975, in all other cases. 38 U.S.C. § 101(29)(A). Service in the Republic of Vietnam is "service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam." 38 C.F.R. § 3.307(a)(6)(iii). VA has interpreted this regulation to require "the service member's presence at some point on the landmass or the inland waters of Vietnam" for entitlement to a presumption of exposure to Agent Orange. Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008), cert. denied, 129 S.Ct. 1002 (2009). Furthermore, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held in 2019 that service in the Republic of Vietnam includes service in the territorial seas of the Republic of Vietnam. See Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). The holding in Procopio was further codified in the Blue Water Navy Act of 2019. 38 U.S.C. § 1116A(c). Service on a U.S. Navy vessel may qualify as duty or visitation in Vietnam, as long as the veteran set foot on land or the vessel nevertheless was in the inland waterways or territorial waters of the Republic of Vietnam. 38 C.F.R. §§ 3.307(a)(6)(iii); Haas, 525 F.3d at 1195, 1197; Gray v. McDonald, 27 Vet. App. 313 (2015); Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019).

Additionally, the PACT Act (Public Law Number 117-168) provides that a Veteran who served in Thailand at any United States or Royal Thai base during the period beginning on January 9, 1962 through June 30, 1976, without regard to where on the base the Veteran was located or what military job specialty the Veteran performed is presumed to have been exposed during to an herbicide agent, unless there is affirmative evidence to the contrary; a Veteran that performed in Laos during the period beginning on December 1, 1965 through September 30, 1969 is presumed to have been exposed during to an herbicide agent, unless there is affirmative evidence to the contrary; performed in Cambodia at Mimot or Krek, Kampong Cham Province during the period beginning on April 16, 1969 through April 30, 1969 is presumed to have been exposed during to an herbicide agent, unless there is affirmative evidence to the contrary; or performed on Guam or American Samoa, or in the territorial waters thereof, during the period beginning on January 9, 1962 through July 31, 1980, or served on a ship that called at Johnston Atoll during the period beginning on January 1, 1972 through September 30, 1977 is presumed to have been exposed during to an herbicide agent, unless there is affirmative evidence to the contrary. See Pub. L. 117-168.

For veterans presumed to have been exposed to herbicides, certain enumerated diseases shall be service connected even though there is no record of such disease during service, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The enumerated diseases which are deemed to be associated with herbicide exposure include coronary artery disease and type II diabetes mellitus. 38 C.F.R. § 3.309(e).

If a veteran was exposed to an herbicide agent during active military, naval, or air service, service connection is presumed for the following disorders: AL amyloidosis; bladder cancer; chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; hypothyroidism; Ischemic heart disease (including but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery); and stable, unstable and Prinzmetal's angina); all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; Parkinsonism; early onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); monoclonal gammopathy of undetermined significance (generally effective October 1, 2022); and hypertension (generally effective October 1, 2026). 38 C.F.R. § 3.309(e); Pub. L. 117-168.

A presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for: hepatobiliary cancers; nasal and/or nasopharyngeal cancer; bone and joint cancer; breast cancer; female reproductive cancers; renal cancer; testicular cancer; abnormal sperm parameters and infertility; Amyotrophic Lateral Sclerosis (ALS); chronic persistent peripheral neuropathy; lipid and lipoprotein disorders; gastrointestinal and digestive disease including liver toxicity; immune system disorders; circulatory disorders; respiratory disorders (other than certain respiratory cancers); skin cancer; cognitive and neuropsychiatric effects; gastrointestinal tract tumors; brain tumors; endometriosis; and, any other condition for which VA has not specifically determined a presumption of service connection is warranted. See Diseases Not Associated with Exposure to Certain Herbicide Agents, 68 Fed. Reg. 27,630 (May 20, 2003); Diseases Not Associated with Exposure to Certain Herbicide Agents, 67 Fed. Reg. 42,600 (June 24, 2002); Diseases Associated with Exposure to Certain Herbicide Agents; Type 2 Diabetes, 66 Fed. Reg. 2,376 (Jan. 11, 2001); Diseases Not Associated with Exposure to Certain Herbicide Agents, 64 Fed. Reg. 59,232 (November 2, 1999); Pub. L. 117-168.

The Board notes that on the date the Pact Act is enacted, Veterans whom the Secretary of Veterans Affairs determines are (a) terminally ill; (b) homeless; (c) under extreme financial hardship; (d) more than 85 years old; or (e) capable of demonstrating other sufficient cause. For all others, the PACT Act is effective October 1, 2022 for claims of entitlement to service connection for monoclonal gammopathy of undetermined significance and October 1, 2026 for claims of entitlement to service connection for hypertension. See Pub. L. 117-168.

Finally, the Board notes that retroactive application under section 38 U.S.C. § 1116(a)(2)(L) in regards to the expansion of benefits afforded under the PACT Act shall only be applicable to claimants for dependency and indemnity compensation under chapter 13 of such title described in subparagraph (A)(i). See Pub. L. 117-168.

In October 2022, the Secretary of the VA issued an Executive Decision Memorandum applicable to all VA claims that found that after considering the full text of the PACT Act and consulting with VA leadership team (to include the Office of General Counsel), application of the Nehmer consent decree processes to claims related to service-connection presumptions that existed before enactment of the PACT ACT, but prevents VA from applying those processes to claims for conditions relating to relating to service-connection presumptions created on or after the Act's enactment.

Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of the disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2017); Allen v. Brown, 8 Vet. App. 374 (1995).

Recently, in Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023), the Federal Circuit Court of Appeals held 38 U.S.C. § 1110 employs only "but-for" causation in direct and secondary service connection claims. Therefore, a service-connected disability need only be a contributing cause, not the contributing cause, to establish secondary service connection.

1. Entitlement to service connection for coronary artery disease (also claimed as ischemic heart disease (IHD)) is granted.

The Veteran asserts that he is entitled to service connection for his coronary artery disease because it is related to in-service exposure to tactical herbicide agent(s).

First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran was afforded a VA examination in September 2019. The September 2019 VA examiner diagnosed the Veteran with atherosclerotic cardiovascular disease, coronary artery disease, and coronary artery bypass graft. See September 2019 VA examination, pp. 1-2.

Second, the Board finds that there was an in-service event, injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran's service personnel records reflect that he was transferred to Ubon Royal Thai Air Force Base on September 4, 1971. See Service Personnel Records, Chronological Listing of Service. As noted above, the PACT Act (Public Law Number 117-168) provides that a Veteran who served in Thailand at any United States or Royal Thai base during the period beginning on January 9, 1962 through June 30, 1976, without regard to where on the base the Veteran was located or what military job specialty the Veteran performed is presumed to have been exposed during to an herbicide agent, unless there is affirmative evidence to the contrary. Therefore, the Veteran has a presumption of exposure to herbicide agent(s).

Third, the Board finds that the evidence of record does support a finding that the Veteran's coronary artery disease (also claimed as ischemic heart disease (IHD)) is related to active service. Ischemic heart disease (including but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery) is a presumptive disability associated with exposure to herbicide agent(s). Accordingly, entitlement to service connection for coronary artery disease (also claimed as ischemic heart disease (IHD)) is granted.

2. Entitlement to service connection for type II diabetes mellitus is granted.

The Veteran asserts that he is entitled to service connection for his type II diabetes mellitus because it is related to in-service exposure to tactical herbicide agent(s).

First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran was afforded a VA examination in September 2019. The September 2019 VA examiner diagnosed the Veteran with type II diabetes mellitus. See September 2019 VA examination, pp. 1-2.

Third, the Board finds that the evidence of record does support a finding that the Veteran's type II diabetes mellitus is related to active service. Type II diabetes mellitus is a presumptive disability associated with exposure to herbicide agent(s). Accordingly, entitlement to service connection for type II diabetes mellitus is granted.

3. Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as associated with type II diabetes mellitus is granted.

4. Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as associated with type II diabetes mellitus is granted.

5. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as associated with type II diabetes mellitus is granted.

6. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as associated with type II diabetes mellitus is granted.

Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below.

The Veteran asserts that he is entitled to service connection for his peripheral neuropathy of the bilateral upper and bilateral lower extremities.

First, the Board finds that there is evidence of a current disability. See Wallin, 11 Vet. App. 509, 512 (1998); see also Allen, supra. The Veteran was afforded a VA examination in September 2019. The September 2019 VA examiner diagnosed the Veteran with diabetic peripheral neuropathy of the bilateral upper and lower extremities.

Second, the Board finds that there is evidence of a service-connected disability. See Wallin, 11 Vet. App. 509, 512 (1998); see also Allen, supra. As noted above, the Veteran is now service-connected for his type II diabetes mellitus.

Third, the Board finds that there is medical nexus evidence establishing a connection between the Veteran's service-connected disability and the current disability. The Veteran's September 2019 VA examiner opined that the Veteran's peripheral neuropathy of the bilateral upper and bilateral lower extremities is diabetic peripheral neuropathy. Accordingly, entitlement to service connection on a secondary basis for peripheral neuropathy of the bilateral upper and bilateral lower extremities is granted.

G. William Riggs

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board G. Deemer, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.