Citation NR: 9714672 Decision Date: 04/30/97 Archive Date: 05/06/97 DOCKET NO. 95-16 427 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Whether new and material evidence has been submitted to warrant reopening a claim of entitlement to service connection for Hodgkin’s disease, claimed as secondary to alleged Agent Orange exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD J. M. Daley INTRODUCTION The veteran had active service from January 1966 to January 1968. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an October 1994 rating decision from the Milwaukee, Wisconsin, Department of Veterans Affairs (VA) Regional Office (RO), which found that no new and material evidence had been received to warrant reopening the veteran’s claim of entitlement to service connection for Hodgkin’s disease, claimed as secondary to alleged Agent Orange exposure. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that while en route to Thailand he was mistakenly brought to Vietnam. He argues that he was there for approximately eight days, during which time he was assigned to drive a dump truck into defoliated areas. He asserts that he was exposed to herbicides, specifically Agent Orange, which eventually led to Hodgkin’s disease. He therefore contends that presumptive service connection is warranted. He now argues that he has presented evidence new and material to whether he was in Vietnam during service to warrant reopening his claim. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1996), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that new and material evidence has been presented to warrant reopening the veteran’s claim of entitlement to service connection for Hodgkin’s disease claimed as secondary to alleged Agent Orange exposure; the claim is reopened. FINDINGS OF FACT 1. A November 1984 RO decision denied service connection for Hodgkin’s disease claimed as secondary to Agent Orange exposure based on lack of proof that the veteran had Vietnam service; the veteran did not appeal. 2. Evidence added to the record since the November 1984 RO decision is new and material, creating a reasonable possibility that the previous determination would be changed. CONCLUSION OF LAW New and material evidence has been presented to warrant reopening the November 1984 RO decision, which denied entitlement to service connection for Hodgkin’s disease claimed as secondary to Agent Orange exposure. 38 U.S.C.A. § 5108 (West 1991 & Supp. 1996); 38 C.F.R. § 3.156(a) (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran’s DD Form 214 shows that he had active service from January 1966 to January 1968, seven months of which were served in the United States Army Pacific (USARPAC). His military occupational specialty was light vehicle driver. He received no medals or commendations to indicate service in Vietnam. The veteran’s service medical records are negative for any complaints of muscle weakness, tingling, paralysis, nausea, vomiting, diarrhea, melena or impotence, and negative for any diagnosis of Hodgkin’s disease or notation that the veteran was exposed to Agent Orange or other herbicide. Gunderson Clinic records are in the claims file beginning in December 1976. In November 1978 the veteran complained of a mass in his neck. The mass was removed and in December 1978 was diagnosed as Hodgkin’s disease, lymphocytic predominant type, presenting in the parotid gland. A May 1984 VA outpatient report recorded a diagnosis of Hodgkin’s disease, first diagnosed in December 1978. Also noted was that such was treated with a splenectomy and radiation therapy in 1979. A June 1984 VA outpatient record noted the veteran’s reported history of service in Vietnam and Thailand from May to December 1966. At that time the veteran stated that he served with the 809th Engineers in Saigon, Vietnam, and also that he sandbagged in or around Ton Son Nhut, Vietnam. The veteran then stated that he was sent to Thailand for three weeks before returning to Vietnam. He reported that spraying occurred while he was in Vietnam, and that he worked in defoliated areas. He denied illness, including muscle weakness, tingling, paralysis, nausea, vomiting, diarrhea, melena or impotence while in Vietnam. Included in a September 1987 VA examination report is a diagnosis of Hodgkin’s disease by history. Based on the above the RO, in its November 1984 rating decision, denied entitlement to service connection for Hodgkin’s disease claimed as secondary to Agent Orange exposure. As the veteran did not appeal, that determination became final. 38 U.S.C.A. § 7105(c) (West 1991 & Supp. 1996) [38 U.S.C. § 4005(c) (1982)]; 38 C.F.R. § 21.1103 (1996) [38 C.F.R. § 19.192 (1984)]. In August 1993, the veteran requested that his claim be reopened based on new Agent Orange legislation. Final Agent Orange regulations were promulgated by the Secretary of the VA in February 1994. Accordingly, in March 1994, the RO re-adjudicated the veteran’s claim, based on the new legislation and additionally received evidence that consisted of further records from the Gunderson Clinic, the veteran’s personal statements, service personnel records, copies of the veteran’s private diary and reissued Form W-2 from the Department of Army Finance Center. Records from the Gunderson Clinic, showing treatment from May 1987 to April 1989, include notations that the veteran had a history of Hodgkin’s disease, seemingly in remission. A copy of a 1968 Form W-2 (Wage and Tax Statement) pertaining to the veteran has been received in support of reopening the claim. It shows that the issuer was the Department of the Army Finance Center and contains a typewritten notation that the form was being “reissued” by the employer in February 1969. Each “1968” on the form is stricken and replaced with “1966.” The form contains the notation “Combat Zone.” The available service personnel records indicate service in USARPAC from June 3, 1966 to January 22, 1967. His assignment record shows that he was in casual status, en route to Thailand from Fort Ord, California, as of May 23, 1966. Beginning June 10, 1966, he is listed as assigned to duty as a light truck driver with Company A, 809th Engineer Battalion, USARPAC. In January 1967 he was a patient at the U.S. Army Hospital, APO Camp Zama, Japan, after injuring his right lower extremity. He was then shipped back to the United States. There is no indication in the available service personnel records that the veteran was in Vietnam. In a further statement, the veteran again asserts that he was mistakenly sent to Vietnam from Fort Ord, California. He states that he was listed as absent without leave (AWOL) and that Military Police (MP) were sent to his parents’ home to search for him. He asserts that his parents showed the MPs a copy of a letter he had written from Vietnam and that he was subsequently located and transferred. In his statement he denies being attached to any company in Vietnam, but asserts that he drove a bulldozer to make camps for incoming soldiers and was exposed to herbicide spraying. In his journal the veteran indicated leaving Fort Ord, California, on May 25, 1966. In a June 2, 1966, entry he wrote that he left for Thailand and landed in Vietnam 30 hours later. In an added “footnote” he indicated that someone messed up. In a June 10, 1966, entry he then stated that he left Vietnam and arrived in Thailand. Based on the veteran’s assertions the RO requested verification of the veteran’s service. In June 1994, the National Personnel Records Center (NPRC) informed the RO that there was no record of the veteran being in Vietnam at any time during service. Subsequently, the veteran submitted additional statements and testified at a personal hearing in June 1994, reiterating that he was sent to Vietnam by error of the military and that he was exposed to herbicides during that time. Also received were lay statements from members of the veteran’s family, which support the veteran’s contention that he was in Vietnam prior to his service in Thailand. The lay statements indicate that the family received letters from Vietnam; however, those statements also state that no such letters are available. The claims file also contains a memorandum dated in September 1966, in which C. Reedy, Commanding Officer (CO) of Company A, 809th Engineer Battalion, addressed the AWOL charge against the veteran. In that memorandum CO Reedy stated that the veteran had been assigned to and served with that unit since June 13, 1966, and included detailed assignments to that date, none of which included time in Vietnam. Morning reports from the Headquarters and Headquarters Company, 809th Engineer Battalion, appear to show that as of June 11, 1966, the veteran and 5 other enlisted men joined the unit from Transportation Company C, 2nd Battalion, 4th Brigade, Fort Ord, and that as of June 16, 1966 he was transferred to Company A, 809th Engineer Battalion. There is no indication of any assignment in Vietnam prior to, during or subsequent to the veteran’s verified service in Thailand; nor is there any record of the veteran being transferred from/to Vietnam during his period of service. Also added to the record were duplicate copies of the W-2 form, a copy of applicable Department of Defense tax exemption regulations, a duplicate copy of the veteran’s journal (a newly-received copy of the journal’s front cover is also of record), and a June 1994 VA hospitalization discharge summary showing that the veteran was hospitalized after a cerebrovascular accident. The hospital summary includes notations of a history of Hodgkin’s disease, stage I-A; status post radiation therapy and splenectomy. II. Analysis The well-groundedness requirement shall not apply with regard to reopening disallowed claims and revising prior final determinations. Jones v. Brown, 7 Vet.App. 134, 138 (1994). As stated, the veteran is claiming entitlement to service connection for Hodgkin’s disease claimed as secondary to Agent Orange exposure. Service connection may be established where the evidence demonstrates that an injury or disease resulting in disability was contracted in line of duty coincident with military service, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1996). Specific to the veteran’s contention, a presumption of exposure to herbicides exists for veterans serving in Vietnam during the Vietnam era. 38 C.F.R. § 3.307(6)(iii) (1996) states that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era and has a disease listed at 38 C.F.R. § 3.309(e) (1996) 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. 38 C.F.R. § 3.307(6). Hodgkin’s disease is included in the presumptive diseases enumerated in 38 C.F.R. § 3.309 (e). Requisite to that presumption is that the veteran have service in Vietnam. "Service in the Republic of Vietnam" includes 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(6)(iii). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1996). The November 1984 RO decision denied entitlement to service connection for Hodgkin’s disease claimed as secondary to Agent Orange exposure on the basis that the veteran had not presented proof of any service in Vietnam. As he did not appeal, that decision became final. 38 U.S.C.A. § 7105(c) (West 1991 & Supp. 1996) [38 U.S.C. § 4005(c) (1982)]; 38 C.F.R. § 21.1103 (1996) [38 C.F.R. § 19.192 (1984)]. Once a denial of a claim of service connection has become final, it cannot subsequently be reopened unless new and material evidence has been presented. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Board must perform a two-step analysis when the veteran seeks to reopen a claim based on additional evidence. First, the Board must determine whether the evidence is “new and material.” Second, if the Board determines that the claimant has produced new and material evidence, the claim is reopened and the Board must evaluate the merits of the veteran’s claim in light of all the evidence, both old and new. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). “New” evidence means more than evidence which was not previously contained in the record and which is more than merely cumulative. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). Material evidence is that which is relevant and probative of the issue at hand. Id. Further, to be new and material, evidence must, when taken together with all the evidence of record, create a reasonable possibility that the outcome would be changed. Manio, 1 Vet.App. at 145. The United States Court of Veterans Appeals (Court) has recently clarified that, with respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the claim as in this case dealing with claims for service connection. Evans v. Brown, 9 Vet.App. 273, 284, (1996) (citing Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d 78 F.3d 604 (Fed. Cir. 1996) (table)). Rather, it is the specified bases for the final disallowance that must be considered in determining whether the newly submitted evidence is probative. Such evidence must tend to prove the merits of the claim as to each essential element that was a specified basis for that last final disallowance of the claim. Id. If the evidence is “new” and “probative,” then it must be determined whether such evidence presents a reasonable possibility of changing the outcome of the prior decision based on all the evidence. If these conditions are met, then the evidence is both “new” and “material.” Evans, at 284. In the instant case, the basis for the RO’s November 1984 denial was that the veteran had not submitted probative evidence that he was in Vietnam. Thus, in seeking to reopen his claim of entitlement to service connection for Hodgkin’s disease claimed as secondary to Agent Orange exposure, he would have to produce new and material evidence bearing on that question. See 38 U.S.C.A. §§ 1101, 1112 (West 1991); 38 C.F.R. §§ 3.307, 3.309. The Board finds that the memorandum from the veteran’s CO, the service personnel records, copies of the 809th Engineer Battalion’s morning reports, and the copy of the reissued Form W-2, which are all clearly new, are also material to whether the veteran was in Vietnam. The Form W-2 is clearly material, inasmuch as it appears to indicate that the veteran was in a combat zone at some time during 1966. The remaining documents include reference to the veteran’s assignment dates and, although only containing positive proof of service in Thailand, when considered together and when viewed in the context of the evidence of record, those documents reveal date discrepancies and an unaccounted for period when the veteran was in “casual status.” The Board is of the opinion that such raise a question of whether the veteran was in Thailand or elsewhere during the asserted time period. Thus, the Board concludes that evidence new and material to whether the veteran had service in Vietnam has been presented and that the November 1984 RO decision is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). ORDER The veteran’s claim of entitlement to service connection for Hodgkin’s disease, claimed as secondary to alleged Agent Orange exposure, is reopened. REMAND In the above decision, the Board has determined that new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for Hodgkin’s disease. The entire evidentiary record must accordingly be considered. However, prior to such consideration the Board is of the opinion that further development, to include obtaining additional documentation concerning the veteran’s duty assignments is in order. As indicated in the above discussion, the additional documents contain date discrepancies and unaccounted for “casual status” time during the exact period the veteran alleges he was in Vietnam. The Board notes that although NPRC stated that there was no record that the veteran had any time in Vietnam, it is unclear whether they checked the exact dates asserted by the veteran (June 2 to June 10, 1966). Thus, the Board concludes that, pursuant to the decision of the Court in Bernard v. Brown, 4 Vet.App. 384 (1993), the case should be remanded for further development regarding the dates and location of the veteran’s military service. Accordingly, the case is REMANDED to the RO for the following: 1. The RO should request from the NPRC the veteran’s complete service personnel records or legible copies thereof, to include any transportation vouchers, documents showing any leave approved or taken during 1966, particularly in May and June, and all military orders. In addition, NPRC should be asked to provide the veteran’s military pay records, including any documents relevant to combat zone pay/exemption status. If pay records are not maintained at NPRC, their location should be determined and they should be obtained. NPRC should be informed that the above are needed by the Board in order to arrive at a determination in the veteran’s claim. If NPRC will not provide the complete personnel file and/or relevant payroll documents, they are requested to provide an explanation as to any unavailability or reason such is barred from release. 2. The RO should obtain morning reports and/or other records pertinent to the veteran’s assignment and travel orders from the following: (Transportation?) Company C, 2nd Battalion, 4th Brigade, Fort Ord, California, and Adjutant General Detachment Administration, Fort Ord, California. 3. The RO should contact the Department of the Army Finance Center regarding the re-issuance of the 1966 W-2 form, and to obtain the veteran’s pay records if they are located there. The Finance Center should be asked to provide an explanation as to the circumstances of its reissuance of the W-2 form and, if of record, the basis for combat zone pay exclusion, such as whether it was based on the veteran’s presence in Vietnam, his having flown over Vietnam, or service in direct support of military operations in a combat zone. The Finance Center also should be asked whether the veteran received any type of pay for any period of time during 1966 that would be payable only to service members located in Vietnam. Finally, the Finance Center should be asked to provide the RO with a copy of the reissued Form W-2 and of all official documents and any correspondence from the veteran requesting or otherwise concerning the reissuance. 4. After the above has been completed to the extent possible, the RO should again request NPRC to verify the veteran’s alleged presence in Vietnam. NPRC should specifically provide documentation as to the veteran’s duty status and whereabouts from May 23 to June 10, 1996 and, if possible based on positive documentation, verify that he was not in Vietnam at that or any other time during his service. If, based on available records, NPRC is unable to certify that the veteran was not in Vietnam, they should so state. 5. After the development requested above has been completed to the extent possible, the RO should again review the record. If the benefit sought on appeal remains denied, the veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans’ Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1996) (Historical and Statutory Notes). In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. JANE E. SHARP Member, Board of Veterans' Appeals 38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1996). - 2 -