Citation Nr: 1124836 Decision Date: 06/30/11 Archive Date: 07/06/11 DOCKET NO. 09-39 569 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for diabetes mellitus, type II. 2. Entitlement to service connection for diabetes mellitus, type II. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran reported active duty service from April 1979 to June 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran testified at a Board hearing at the RO in December 2009 before the undersigned Veterans Law Judge. A copy of the transcript of that hearing has been associated with the record on appeal. The issue of service connection for diabetes mellitus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A June 2001 rating decision denied service connection for diabetes mellitus; the Veteran did not file a timely notice of disagreement regarding that decision. 2. Evidence that relates to an unestablished fact necessary to substantiate the claim and that raises a reasonable possibility of substantiating the claim of service connection for diabetes mellitus has been received since the June 2001 rating decision. CONCLUSIONS OF LAW 1. The June 2001 rating decision denying service connection for diabetes mellitus became final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2000); currently, 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2010). 2. New and material evidence has been received since the June 2001 denial of service connection for diabetes mellitus to reopen the claim. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5108 (West 2002); 38 C.F.R. §§ 3.156, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify the veteran of information and evidence necessary to substantiate the claim and redefined its duty to assist her in obtaining such evidence. 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326 (2009). Given the favorable disposition of the action here, which is not prejudicial to the veteran, the Board need not assess VA's compliance with the VCAA in the context of the issue of whether new and material evidence has been submitted to reopen the claims. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Reopening Service Connection for Diabetes The Veteran's claim to reopen involves an underlying claim of service connection for diabetes mellitus. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from a disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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). 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). A review of the record shows that a claim for service connection for diabetes mellitus was originally denied in June 2001. The Veteran was informed of that decision in a June 2001 notification letter. The Veteran did not file a notice of disagreement regarding the June 2001 decision within one year from the date of the notification of the rating decision to appeal the denial of the claim. Therefore, that decision became final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2000); currently, 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2010). As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When an appellant seeks to reopen a final decision, the first inquiry is whether the evidence presented or secured after the last disallowance is "new and material." Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. Material evidence means 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). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In order for evidence to be sufficient to reopen a previously denied claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1990). Furthermore, "material evidence" could be "some new evidence [that] may well contribute to a more complete picture of the circumstances surrounding the origin of the Veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Hodge v. West, 155 F. 3d 1356, 1363 (Fed. Cir. 1998). If it is determined that new and material evidence has been received, the claim must be reopened and VA may then proceed to the merits of the claim on the basis of all the evidence of record. The Court has held that there is a very low threshold for reopening claims, stating that the requirements in the regulations that the evidence "raises a reasonable possibility of substantiating the claim" should be read as enabling reopening rather than precluding it. Shade v Shinseki, 24 Vet. App. 110 (2010). In this case, the RO denied for service connection for diabetes mellitus in the prior final June 2001 decision, finding that no evidence showed a diagnosis of diabetes mellitus. Regarding the current claim on appeal, the RO reopened the case in an August 2008 rating decision, but then denied the claim on the merits. The present appeal ensued. Regardless of the RO's determination, the Board is not bound by that determination as to whether the claim should be reopened, and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Since the prior final rating decision in June 2001, the Veteran has submitted additional evidence, including VA treatment records showing a clear diagnosis of diabetes mellitus, type II. This evidence constitutes new evidence as it was not previously submitted to agency decisionmakers. It is not cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened. As the Board must presume the credibility of the evidence, the evidence raises a reasonable possibility of substantiating the claim. The evidence shows a current diagnosis of diabetes mellitus, type II. The lack of a diagnosis was one reason for denial in the previous June 2001 rating decision. Therefore, the Board finds that new and material evidence has been received to reopen the previously denied claim of service connection for diabetes mellitus. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). ORDER New and material evidence having been received, service connection for diabetes mellitus is reopened and to that extent the appeal is granted. REMAND The Veteran was not afforded a VA examination to determine the etiology of his diabetes mellitus. In light of the holding in McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Board finds that an examination is required. McLendon provides that in disability compensation (service connection) claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. The standards of McLendon are met in this case. The Veteran provided evidence of a current disability, specifically VA treatment records showing a diagnosis of diabetes mellitus, type II. The Veteran's May 2000 separation report of medical examination showed a notation of diabetes. The examiner suggested repeat screen for glucose and if found to be high may need to follow up in the clinic or VA. Based on the current diagnosis of diabetes and the findings of high glucose levels at separation from service, the Board finds that a VA examination is necessary. Accordingly, the issue of service connection for diabetes mellitus is REMANDED for the following action: 1. The Veteran should be afforded a VA examination to ascertain the nature and etiology of his diabetes mellitus. The relevant documents in the claims file, to include service treatment records, should be made available to and reviewed by the examiner in connection with the new examination. Any tests deemed medically advisable should be accomplished. The examiner should clearly address the following: The examiner should offer an opinion as to whether it is at least as likely as not (a 50 percent or higher degree of probability) that the Veteran's diabetes mellitus had its onset during service or is causally or etiologically related to service. The examiner should specifically discuss the Veteran's service treatment records, including his separation examination that showed high glucose levels. A complete rationale should be given for any opinion provided. 2. After completion of the above and any other development the RO/AMC should deem necessary, the RO/AMC should review the expanded record and readjudicate the claim. If the claim remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case, and should be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2010). This claim 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). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs