Citation Nr: 1323101 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 10-06 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1.Whether new and material evidence has been received to reopen a claim for service connection for diabetes mellitus, and, if so, whether service connection is warranted. 2. Entitlement to service connection for diabetes mellitus. 3. Entitlement to service connection for a disorder of the skin of the lower legs, to include diabetic dermopathy or shin spots. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from June 1974 to June 1994. He does not report and his service records do not show any service in or near Vietnam during the Vietnam War. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by the San Diego, California Regional Office (RO) of the United States Department of Veterans Affairs (VA). In an April 2009 rating decision, the RO denied reopening of a previously denied claim for service connection for diabetes mellitus. In a May 2010 rating decision, the RO denied service connection for diabetic dermopathy or shin spots. Although the Veteran initially requested a Board hearing in September 2011, he later withdrew this request in April 2012. The Board has reviewed both the Veteran's paper claims file and the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence. The Board grants herein the request to reopen a previously denied claim for service connection for diabetes. The reopened claim must be considered on its merits. The reopened issue of service connection for diabetes and the issue of service connection for a disorder of the skin of the lower legs 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. FINDINGS OF FACT 1. A February 2006 rating decision denied service connection for diabetes mellitus. The Veteran was informed of his appellate rights and did not timely respond. 2. Evidence received since the February 2006 rating decision raises a reasonable possibility of substantiating a claim for service connection for diabetes. CONCLUSIONS OF LAW 1. The February 2006 rating decision denying service connection for diabetes mellitus is a final decision. 38 U.S.C.A. § 7105 (West 2002). 2. Evidence received since the February 2006 rating decision is new and material to a claim for service connection for diabetes mellitus. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Diabetes Mellitus In September 2005 the Veteran submitted a claim for service connection for diabetes mellitus. In a February 2006 rating decision the RO denied service connection for diabetes. A rating decision becomes final when a claimant does not file a notice of disagreement (NOD) within one year after a decision is issued. 38 U.S.C.A. § 7105. The Veteran did not file an NOD with the February 2006 rating decision, and that decision became final. In November 2008 the Veteran requested reopening of the claim for service connection for diabetes. A final decision on a claim that has been denied shall be reopened if new and material evidence with respect to that claim is presented or secured. 38 U.S.C.A. §§ 5108, 7104(b) (West 2002). The United States Court of Appeals for Veterans Claims (Court) has ruled that, if the Board determines that new and material evidence has been submitted, the case must be reopened and evaluated in light of all of the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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(a). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). In order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the last time that the claim was finally disallowed on any basis (not only since the last time that the claim was disallowed on the merits). Evans v. Brown, 9 Vet. App. 273 (1996). The only final disallowance of the Veteran's claim for service connection for diabetes is the February 2006 rating decision. The Board will consider whether new and material evidence has been submitted since that decision. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including diabetes mellitus, may be established based upon a legal presumption by showing that it manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The evidence that was in the claims file in February 2006 includes the Veteran's service treatment records, post-service medical records, and reports of VA medical examinations. His service treatment records do not show any diagnosis of diabetes. On examinations in 1974 and 1984 urinalysis was negative for sugar. In September 1991 he was seen at sick call for recently developed cough and sore throat. He also reported a three year history of a rash on the skin on both legs. The treating clinician observed hyperpigmentation of the skin on both lower legs. The clinician described the condition as a diabetic dermopathy appearing rash. The clinician indicated that possible diabetes should be ruled out. Laboratory testing was performed. The next day the clinician reported that laboratory testing showed normal findings, with nothing insinuating diabetes. In July 1992 treatment for hypertension the treating clinician noted that the Veteran did not have diabetes. On a February 1994 examination urinalysis was negative for sugar. In an August 1994 claim for service connection and compensation for several disorders and in a December 1994 VA medical examination the Veteran did not state that he had diabetes. The Veteran has indicated that since separation from service he has received medical treatment at a Navy facility. The claims file contains records of his treatment at that facility from 2002 forward. Records from that treatment reflect that the Veteran was first diagnosed with diabetes in May 2004. In his September 2005 claim the Veteran sought service connection for diabetes. The Veteran had a VA medical examination in December 2005, but that examination did not address diabetes. The evidence that has been added to the record since February 2006 includes statements from the Veteran, additional and more recent post-service medical records, and additional copies of service treatment records. In January 2009 the Veteran stated that his diabetes was diagnosed affirmatively shortly after his retirement from service. He noted that his service treatment records showed a diabetic dermopathy appearing rash. He submitted a copy of the September 1991 service treatment record that reflects a rash on the legs, an assessment of diabetic dermopathy appearing rash, and follow-up notes that laboratory findings were normal and did not show diabetes. Records of medical treatment in 2005 through 2012 show ongoing treatment for diabetes. In a May 2009 statement the Veteran asserted that the person who reviewed his claim in 2006 did not notice the 1991 service treatment record that mentions possible diabetes. In a February 2010 statement the Veteran noted that diabetic dermopathy is a type of skin lesion seen in people with diabetes. The Veteran submitted another copy of the September 1991 service treatment record. In March 2010 he submitted another copy of the September 1991 record and also submitted a copy of a June 1991 service treatment record that shows follow-up regarding his blood pressure. In April 2012 the Veteran again wrote that his diabetes was diagnosed affirmatively shortly after his retirement from service. The September 1991 service treatment record is associated with the other service treatment records and thus was before the VA official who adjudicated the Veteran's claim in February 2006. After February 2006, however, the Veteran asserted in two statements that his diabetes was diagnosed shortly after his retirement from service. The record does not contain any medical documentation of a diagnosis during that period. For purposes of establishing whether new and material evidence has been submitted, however, the Board presumes the credibility of the Veteran's statement. The Veteran's account of a diabetes diagnosis shortly after service retirement is not inherently incredible. He is competent to report that a clinician communicated a diagnosis to him and to recall when that occurred. The claimed diagnosis of diabetes soon after separation from service is material to the claim for service connection for diabetes. If established, such a diagnosis would raise a reasonable possibility of substantiating a claim for service connection for diabetes. As there is evidence that is both new and material evidence to a claim for service connection for diabetes, the Board grants reopening of that claim. 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. 2011)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Because the Board is granting the request to reopen the previously denied claim for service connection for diabetes, it is not necessary to discuss VA's duties to notify and assist the Veteran with respect to that request to reopen the claim. The Board finds that additional evidence should be developed with respect to the reopened claim. The Board is remanding the claim for the development described in the remand section, below. ORDER The petition to reopen a claim of service connection for diabetes mellitus is reopened. REMAND Additional evidence should be developed with respect to the reopened claim for service connection for diabetes. The Veteran reported that he was diagnosed with diabetes shortly after his 1994 retirement from service. The claims file does not contain a record of that diagnosis. The file does not contain records of medical treatment during the years immediately following service; the earliest records are from 2002. The Veteran should have the opportunity to submit a contemporaneous record showing the diagnosis. If the Veteran identifies the clinician who made the diagnosis and requests VA assistance in obtaining the relevant records, VA should provide such assistance. An examination should also be provided as to what the nature and etiology of any current diabetes mellitus is. It also is necessary to develop additional evidence relevant to the claim for service connection for a disorder of the skin of the lower legs. In his August 1994 claim the Veteran sought service connection for dermatitis. In the May 1995 rating decision the RO established service connection for skin disorders described as tinea cruris (a disorder affecting the skin of the groin) and tinea pedis (a disorder affecting the skin of the feet). The RO also granted service connection for varicose veins with stasis dermatitis of both lower extremities. In January 2009 the Veteran raised a claim for service connection for diabetic dermopathy affecting the skin of the lower legs. In a May 2010 rating decision, the RO denied service connection for diabetic dermopathy or shin spots. The Veteran appealed that decision. The issue on appeal, then, is service connection for a disorder of the skin of the Veteran's lower legs other than the stasis dermatitis for which service connection is already established. The Veteran asserts that he has a lower legs skin disorder that can be characterized as shin spots or diabetic dermopathy. The Veteran's service treatment records reflect complaints of skin symptoms and disorders. In October 1977 he was treated for a rash on his left shoulder. In July 1989 he reported that for a year he had experienced a rash on both legs. The treating clinician's impression was possible tinea infection. In February 1991 the Veteran reported a two year history of itching of his toes and infections of his feet and toenails. The treating clinician's impressions were tinea pedis and onychomycosis. In June 1991 the Veteran reported a one month history of jock itch. The treating clinician's impression was tinea cruris. In September 1991, the Veteran reported a three year history of a rash on both legs below the knees. The treating clinician observed hyperpigmentation on both lower legs. The examiner stated that the rash looked like diabetic dermopathy. Laboratory testing did not show that the Veteran had diabetes at that time, but the clinician noted that the rash had a fungal element. The clinician treated the leg rash with the antifungal ointment lotrimin. On VA examination in February 1994 the Veteran reported a five year history of increased pigmentation on his legs. The examiner observed skin pigment changes and dryness and varicosities of both legs. Later in February 1994 the Veteran had a dermatology consultation to address a two to three year history of scaly lesions on his lower legs. A punch biopsy was taken. In a March 1994 dermatology report a clinician stated that the biopsy showed stasis dermatitis. The clinician stated that clinically the disorder did not look like stasis dermatitis but looked more like nonpalpable pigmented purpura. The clinician prescribed a topical medication. The claim that the Veteran filed in August 1994, a few weeks after retirement from service, included a claim for service connection for dermatitis. On VA examination in December 1994 the Veteran reported a several year history of dermatitis on his lower legs. The examiner observed discoloration of the skin of the lower legs and scars on the lower legs. The examiner also observed a varicose vein on each lower leg. The examiner provided a diagnosis of stasis dermatoses bilaterally. On VA examination in December 2005 the Veteran reported that the skin of his lower legs had dark skin pigmentation and that he had varicose veins in his lower legs. The examiner observed stasis dermatitis on the lower extremities and varicose veins on the lower legs and the right foot. In VA primary care treatment in March 2011 a clinician observed acanthosis nigricans and varicosities on the Veteran's legs. In March 2012 a clinician observed whitish striae on the distal half of both the Veteran's lower legs. The Veteran and clinicians who have treated and examined him have observed abnormality of the skin on his lower legs during and after service. Some clinicians have described the findings as statis dermatitis. VA established service connection for stasis dermatitis. The record raises questions, however, as to whether statis dermatitis is the only skin disorder of the Veteran's lower legs. The Veteran essentially contends that in addition to stasis dermatitis he has diabetic dermopathy or shin spots. VA clinicians have characterized findings on the lower leg skin as acanthosis nigricans and as striae. The Board will remand the claim for a new VA examination to clarify the nature of the disorder or disorders affecting the skin of the Veteran's lower legs and the likely etiology of such disorders. It is noted that the Veteran is already service-connected for varicose veins with stasis dermatitis and tinea cruris and pedis, and that the Veteran is seeking service connection for additional and distinct problems of the skin other than the conditions listed. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to submit medical records showing diagnosis of diabetes soon after his 1994 retirement from service. If the Veteran identifies the clinician who made the diagnosis and requests VA assistance in obtaining the relevant records, request the records from the clinician whom the Veteran identifies. 2. Schedule the Veteran for an appropriate VA examination regarding the nature and likely etiology of any diabetes mellitus. Provide the examiner the Veteran's claims file and any relevant information from his Virtual VA electronic claims file for review. Ask the examiner to review the record and examine the Veteran. Ask the examiner to provide opinions, regarding diabetes mellitus as to whether it is at least as likely as not that the disorder had its onset in service or within one year of service separation. Ask the examiner to explain the reasoning leading to his or her conclusions. The examiner should review the entire claims file to include service treatment records which reflect an assessment of "possible diabetes" and notations of diabetic dermopathy. The examiner should also consider the Veteran's own statements as to the date of onset of diabetes mellitus. 2. Schedule the Veteran for a VA dermatology examination regarding the nature and likely etiology of current disorders of the skin of the Veteran's lower legs. Provide the examiner the Veteran's claims file and any relevant information from his Virtual VA electronic claims file for review. Ask the examiner to review the record and examine the Veteran. Inform the examiner that VA established service connection for stasis dermatitis (and for varicose veins) of the Veteran's lower legs. Ask the examiner to identify any additional skin diagnoses that affect the skin of the Veteran's lower legs. Ask the examiner to provide opinions, regarding each current lower leg skin disorder other than his already service-connected conditions, as to whether it is at least as likely as not that the disorder (A) is a continuation of skin abnormality noted in service or is otherwise causally related to disease or injury in service, or (B) is proximately due to or the result of, or is aggravated by, one or more of the Veteran's established service-connected disorders (to include stasis dermatitis, varicose veins, tinea cruris, tinea pedis and hypertension). Ask the examiner to explain the reasoning leading to his or her conclusions. 3. Thereafter review the expanded record and reconsider the remanded claims. If any remanded claim remains denied, issue a supplemental statement of the case and afford the Veteran an opportunity to respond. Thereafter, return the case to the Board for appellate review if otherwise in order. The Board intimates no opinion as to the ultimate outcome of the matters that the Board has remanded. The Veteran has the right to submit additional evidence and argument on those matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. 2012). ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs