Citation Nr: 1323377 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 10-02 990 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for diabetes mellitus. 2. Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Robert W. Gillikin, II, Attorney ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from October 1985 to May 1986. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which reopened service connection for diabetes mellitus and denied the claim on the merits. In a subsequent May 2013 supplemental statement of the case (SSOC), the RO reopened and denied service connection for diabetes mellitus. Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claim and to adjudicate the claim de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g, 8 Vet. App. 1 (1995)). 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. In an unappealed April 2002 rating decision, the RO denied reopening of service connection for diabetes mellitus, finding that new and material evidence had not been received to show that diabetes was incurred in service or manifested within one year of service. 2. The Veteran did not submit a notice of disagreement to the April 2002 rating decision within one year of issuance of the decision. 3. Evidence received since the April 2002 rating decision denying service connection for diabetes mellitus relates to an unestablished fact necessary to substantiate a claim for service connection. CONCLUSIONS OF LAW 1. The April 2002 rating decision that denied reopening service connection for diabetes mellitus became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. New and material evidence has been received to reopen 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 Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Given the Board's favorable decision on the Veteran's petition to reopen service connection for diabetes mellitus, the Board finds that all notification and development action needed to fairly adjudicate that claim has been accomplished. Reopening of Service Connection for Diabetes Mellitus New and Material Evidence Legal Criteria The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. See Barnett, 83 F.3d at 1383-1384. If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in this regard is irrelevant. Barnett at 1383. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A claim on which there is a final decision may be reopened if new and material evidence is received. 38 U.S.C.A. § 5108. "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. 38 C.F.R. § 3.156(a). 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id at 118. Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and Material Evidence Analysis Service connection for diabetes mellitus was originally denied in a May 1993 rating decision that found nothing in service to show diabetes mellitus, and showed post-service onset of diabetes and treatment since 1989, approximately three years after service separation. A subsequent rating decision in June 1993 denied reopening of service connection for diabetes mellitus, finding that the additional records submitted did not tend to show that diabetes initially occurred during service or within the presumptive period. In an April 2002 rating decision, the RO again denied reopening of service connection for diabetes mellitus finding that new and material evidence had not been received to reopen the claim, that is, that the additional evidence did not show service incurrence of diabetes or diabetes within one year of service. The decision noted the prior findings of onset of diabetes three years after service. The Veteran was properly notified of the April 2002 rating decision, but did not enter a notice of disagreement within one year of notice of the rating decision. For this reason, the April 2002 rating decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. The evidence of record at the time of the April 2002 rating decision included (1) service treatment records; (2) the Veteran's claim for VA compensation; and (3) Sentara Medical Group treatment records from February 1990 to February 1993 and from May 1999 to August 1999. For evidence to be new and material, it would have some tendency to show that the Veteran's current diabetes mellitus was incurred in service, manifested to a compensable (at least 10 percent) degree, or was otherwise related to service. In May 2009, the Veteran filed the current claim to reopen service connection for diabetes mellitus, indicating that he was being treated by VA for diabetes. In support of the current application to reopen service connection for diabetes mellitus, the new evidence of record associated with the record since the April 2002 rating decision includes a May 2009 statement from the Veteran where he contends that he was diagnosed and treated for diabetes mellitus during service. In a brief dated March 2010, the Veteran's representative claimed that the Veteran was treated for diabetes mellitus during service and, more specifically, received treatment from the mid-1980s to the early-1990s from the St. Mary's Medical Center in Long Beach, California, and at the US Naval Medical Center, Third Anglico, in Long Beach, California. After a review of all the evidence of record, lay and medical, and presuming the credibility of the Veteran's additional statements for the limited purpose of reopening a claim, the Board finds that the May 2009 and March 2010 statements are new and material as they relate to an unestablished fact necessary to substantiate a claim for service connection for diabetes mellitus, specifically, they suggest that diabetes mellitus was incurred in or related to service. Accordingly, the evidence is new and material, and the claim for service connection for diabetes mellitus will be reopened. See Cox v. Brown, 5 Vet. App. 95 (1993). The appeal is granted to this extent only. ORDER New and material evidence having been received, the appeal to reopen service connection for diabetes mellitus is granted. REMAND Having determined that service connection for diabetes mellitus is reopened, the claim must now be reviewed de novo. In this regard, the Board finds that additional development is required in this case to ensure there is a complete record upon which to decide on the merits the issue of service connection for diabetes mellitus. As noted above, the Veteran's representative submitted a brief in March 2010 which noted that the Veteran was diagnosed and treated for diabetes mellitus while in service. According to the brief, the Veteran was treated between the mid-1980s to the early 1990s for diabetes mellitus at the St. Mary's Medical Center in Long Beach, California, and at the US Naval Medical Center, Third Anglico, in Long Beach, California. The Board notes that treatment records dated March 1989 and May 1989 from the US Naval Medical Center are of record; however, it does not appear that efforts have been made to obtain the St. Mary's Medical Center treatment records or any outstanding records from the US Naval Medical Center not already of record. Further, in a VA Form 21-4142 dated June 2009, the Veteran noted the following sources of information relating to his claim for service connection: (1) The Disability Determination Services in Norfolk, Virginia; (2) the Social Security Administration (SSA) in Portsmouth, Virginia; (3) Maryview Medical Center in Portsmouth, Virginia; (4) Hampton Roads Regional Jail in Portsmouth, Virginia; and (5) the medical staff at the Portsmouth City Jail in Portsmouth, Virginia. In a letter dated August 2012, the RO notified the Veteran that more information was required prior to requesting documentation from the medical facilities noted above. Specifically, the RO requested that the Veteran provide treatment dates and the conditions(s) for which he received treatment. The Veteran did not provide a response to the August 2012 letter. In the May 2013 SSOC, the RO notified the Veteran that, although in August 2012 VA had requested him to submit a VA Form 21-4142 (Authorization for Release of Information to VA), and he had not done so, he was again requested to provide a properly completed authorization form or provide the records. VA is required to make reasonable efforts to help a veteran obtain records relevant to his claim, whether or not the records are in Federal custody. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c). Further, the last VA treatment note of record from the Hampton VA Medical Center (VAMC) is dated May 21, 2009. On remand, updated treatment records should be obtained and associated with the claims file or Virtual VA electronic claims file. Accordingly, the claim for service connection for diabetes mellitus is REMANDED for the following actions: 1. The RO should obtain all VA treatment records from the Hampton VA Medical Center from May 22, 2009 to the present. The records should be associated with the claims file or the Virtual VA electronic claims file. 2. The Veteran and his representative should be asked to complete the releases for medical records, and to provide specific information regarding treatment dates and the conditions(s) for which he received treatment, if he wishes VA to attempt to obtain records on his behalf, to include records from: (a) St. Mary's Medical Center in Long Beach, California; (b) US Naval Medical Center, Third Anglico, in Long Beach, California (Note: treatment records dated March 1989 and May 1989 from the US Naval Medical Center are of record); (c) The Disability Determination Services in Norfolk, Virginia; (d) The Social Security Administration in Portsmouth, Virginia; (e) Maryview Medical Center in Portsmouth, Virginia; (f) Hampton Roads Regional Jail in Portsmouth, Virginia; and (g) Medical staff at the Portsmouth City Jail in Portsmouth, Virginia. If the Veteran or his representative provides the release, the RO should take appropriate steps to secure copies of any such treatment reports identified by the Veteran which are not already of record. All attempts to procure these records should be documented in the file. If the RO is unable to obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative should be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. Following the completion of the foregoing, and after undertaking any other development it deems necessary, the RO should readjudicate the claim for service connection for diabetes mellitus. If the claim is denied, the RO should provide the Veteran and his representative with a SSOC and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further 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). 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). ______________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs