Citation Nr: 1325804 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 09-21 533 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for residuals of a gunshot wound (GSW) to the left arm. 2. Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from June 1979 to October 1986. He also had several periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the Pennsylvania Army National Guard from June 2000 to June 2006. This matter comes before the Board of Veterans' Appeals (Board) from a June 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) above. On his June 2009 substantive appeal, submitted via VA Form 9, the Veteran requested a Board hearing be conducted via video conference. A video conference hearing was scheduled in August 2010 and notice of the scheduled hearing was sent to the Veteran's address of record; however, the Veteran did not appear for the scheduled hearing and he has not provided good cause as to why a new hearing should be scheduled. The Board, then, finds that all due process has been afforded the Veteran with respect to his right to a hearing. FINDINGS OF FACT 1. A rating decision issued in September 2006 denied entitlement to service connection for residuals of a GSW to the left arm. 2. The September 2006 rating decision and notice of appellate rights was mailed to the Veteran's address of record and was not returned as undeliverable. The Veteran did not submit any communication expressing dissatisfaction or disagreement with the September 2006 rating decision or any other communication regarding his claims for service connection until January 2008, and new and material evidence relevant to the service connection claim was not received within one year of the issuance of the September 2006 rating decision. Therefore, the September 2006 rating decision is final. 3. Evidence added to the record since the final September 2006 denial does not relate to an unestablished fat necessary to substantiate the claim or raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for residuals of GSW to the left arm. 4. The Veteran did not serve in the Republic of Vietnam or in or near the Korean demilitarized zone and, thus, is not presumed to have been exposed to herbicides. 5. The preponderance of the evidence is against a finding that the Veteran's current diabetes mellitus is due to any incident or event in active military service. 6. Diabetes mellitus was not diagnosed within one year of the Veteran's October 1986 service discharge. CONCLUSIONS OF LAW 1. The September 2006 rating decision that denied service connection for residuals of GSW to the left arm is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.1103 (2006) [(2012)]. 2. New and material evidence to reopen the previously denied claim of entitlement to service connection for residuals of GSW to the left arm has not been received. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. Diabetes mellitus was not incurred in active military service, nor may it be presumed to have been incurred as a result of service, to include as due to exposure to herbicides during military service or as a chronic disease. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that the VCAA notice requirements in regard to new and material evidence claims require VA to send a specific notice letter to the claimant that: (1) notifies him or her of the evidence and information necessary to reopen the claim (i.e., describes what is meant by new and material evidence); (2) identifies what specific evidence is required to substantiate the element or elements needed for service connection that were found insufficient in the prior denial on the merits; and (3) provides general VCAA notice for the underlying service connection claim. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. Pertaining to the Veteran's application to reopen his claim of entitlement to service connection for residuals of a GSW to the left arm, an April 2008 letter, sent prior to the issuance of the unfavorable rating decision in June 2008, advised him that his claims had previously been denied in a September 2006 rating decision. In this regard, the April 2008 letter informed the Veteran that his claim for residuals of a GSW to the left arm had been denied because the left arm condition was not incurred in or caused by service. The April 2008 letter provided the definition of new and material evidence and the criteria for establishing entitlement to service connection. The letter also advised him of the responsibilities of the Veteran and VA in obtaining such evidence, as well as the evidence and information necessary to establish a disability rating and an effective date, in accordance with Dingess/Hartman. Therefore, the Board finds that the Veteran was provided with proper VCAA notice, to include consideration of Kent, supra. Regarding the Veteran's claim of entitlement to service connection for diabetes mellitus, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, an April 2008 letter, sent prior to the initial unfavorable decision issued in June 2008, advised the Veteran of the evidence and information necessary to substantiate his service connection claim as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, such letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. With regard to the duty to assist, all pertinent, identified, and obtainable records have been obtained and considered, including the Veteran's service treatment records, Army National Guard records, and post-service VA and private treatment records dated from 1987 to 2009. In this regard, the Board notes that the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file, and it is apparent that the RO reviewed all evidence in the paperless claims file as well. The Veteran has not identified any additional, outstanding records that he wishes to be considered in his appeal. In this regard, the Board observes that all VA records identified by the Veteran were requested or obtained. Relevant to the Veteran's application to reopen his claim of entitlement to service connection for residuals of a GSW to the left arm, the Board notes that the Veteran has not been provided with a VA examination in the instant case; however, the VCAA and its implementing regulations include clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who attempts to reopen a previously denied claim. See 38 C.F.R. § 3.159(c)(1), (2) and (3). Such assistance includes obtaining service records, records in the custody of a Federal agency, and private records adequately identified by the claimant, but, prior to reopening a claim, there is no duty to obtain a VA medical examination or opinion. As the Veteran's claim is not reopened herein, there is no obligation on the part of VA to provide a medical examination or opinion in connection with his appeal. Pertinent to his claim of entitlement to service connection for diabetes mellitus, the Board notes that the Veteran has not been provided with a VA medical examination and/or opinion; however, the Board finds that such is not necessary in the instant case. Specifically, as will be discussed below, there is no competent evidence of an in-service event, injury, or disease to which the Veteran's diabetes mellitus may be related; nor is there competent evidence establishing a medical nexus between the current disability and service. Therefore, the Board finds that a VA examination and/or opinion is not necessary to decide the claim. For the foregoing reasons, the Board finds that VA has satisfied its duties to inform and assist the Veteran at every stage in this case. As such, the Veteran will not be prejudiced by a decision on the merits of his claims. New and Material Evidence Claim By way of background, entitlement to service connection for residuals of a gunshot wound (GSW) to the left arm was initially denied in a September 2006 rating decision. At that time, the RO considered the Veteran's service treatment records (STRs) and records from the Pennsylvania Army National Guard, which did not show any injury or treatment for a left arm injury or gunshot wound during the Veteran's active duty service, ACDUTRA, or INACDUTRA. The RO also considered post-service treatment records which show the Veteran suffered a GSW to his left chest and shoulder in January 2006 and subsequently sought treatment at VA. Indeed, in August 2006, a VA Nerve Conduction Study revealed left brachial plexus injury, secondary to a gunshot wound in January 2006. See August 2006 VA treatment record. Based on this evidence, the RO determined that the Veteran's left arm condition was not sustained during active duty or his periods of ACDUTRA and INACDUTRA. The Veteran was notified of the RO's decision and his appellate rights in June 2008. Indeed, review of the record reveals that the September 2006 rating decision and notice of appellate rights was mailed to the Veteran's address of record and was not returned as undeliverable. No further communication regarding the Veteran's service connection claims was received until January 2008, when VA received his application to reopen the previously denied claim of service connection for residuals of a GSW to the left arm injury. As such, the Board finds the Veteran did not submit any communication regarding his previously denied claim during the one year appeal period following the June 2008 rating decision. Therefore, the June 2008 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2008) [(2012)]. In reaching such determination, the Board has considered the provisions of 38 C.F.R. § 3.156(b), which holds that new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. In the instant case, the Board notes that the Veteran did not submit any communication or other evidence, including evidence that can be construed as new and material evidence relevant to his claims, during the one year appeal period following the June 2008 rating decision. Therefore, the Board finds that 38 C.F.R. § 3.156(b) is not applicable to this case. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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 held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). At the time of the last final decision in June 2008, there was no evidence relating the Veteran's current residual left arm GSW disability to his military service. Instead, the evidence showed that the left arm disability was incurred after service, with no indication that the disability was related to service in any way. Since the last final decision, the evidence received into the record consists of VA treatment records dated from January 2008 to May 2009, which show continued treatment for left arm pain and paresthesias. In April 2008, the Veteran sought treatment at VA for physical therapy to aid in improving his left arm condition. The examining physician noted the findings of the 2006 NCS and continued the diagnostic impression of left brachial plexus injury secondary to a GSW. The treatment records consistently relate the Veteran's current left arm condition to the GSW injury that occurred in June 2006, 20 years after he was separated from service. The treatment records do not contain any medical evidence or opinion which shows that the Veteran suffered a GSW to the left arm during service or which, otherwise, relates the current left arm condition to the Veteran's active duty service or his periods of ACDUTRA and INACDUTRA. As such, while the VA treatment records are new, in that they were not of record at the time of the last final rating decision in September 2006, the Board finds that the evidence is not material because it does not relate to unestablished facts necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim, i.e., raise any indication that the current residual left arm condition was incurred in or is otherwise related to his military service, including his periods of ACDUTRA or INACDUTRA. In summary, even when considering the newly submitted evidence together with the previous evidence of record, the evidence does not raise a reasonable possibility of substantiating the Veteran's claim of service connection for residuals of left arm GSW injury. Accordingly, new and material evidence has not been received sufficient to reopen the previously denied claim, and the Veteran's claim for that benefit is denied. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Service Connection for Diabetes Mellitus Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in the line of duty. 38 U.S.C.A. § 101(21), (24) (West 2002); 38 C.F.R. § 3.6(a). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred in the line of duty. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110 (West 2002). ACDUTRA includes full-time duty performed by members of the National Guard of any State or the Reserves. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full- time duty performed by a member of the Reserves or the National Guard of any State. 38 C.F.R. § 3.6(d). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including diabetes mellitus, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1137; 38 C.F.R. §§ 3.307, 3.309. However, the presumption pertaining to chronic diseases under 38 U.S.C.A. § 1112 and the presumption of aggravation under 38 U.S.C.A. § 1153 do not apply to ACDUTRA or INACDUTRA service. Id. See also Acciola v. Peake, 22 Vet. App. 320 (2008); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Because diabetes mellitus is a chronic disease listed under 3.309(a), the Veteran may establish service connection with continuity of related symptomatology after service. The law also provides a presumption of service connection for certain diseases, including diabetes mellitus, type II, that are associated with exposure to herbicide agents and that become manifest within a specified time period in a veteran who, during active military, naval, or air service, served in the Republic of Vietnam or in or near the Korean demilitarized zone (DMZ) during specified periods of time, even if there is no record of evidence of such disease during the period of service. See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). The Veteran is seeking entitlement to service connection for diabetes mellitus. While he has not provided any details regarding why he believes his diabetes is related to his military service, review of the record reveals the Veteran was diagnosed with diabetes mellitus in 2003. See January 2008 VA treatment record. The STRs do not contain any complaints, treatment, findings, or diagnosis of diabetes mellitus during the Veteran's active duty service from June 1979 to October 1986; nor do the Veteran's National Guard records reflect that he complained of, sought treatment for, or was diagnosed with diabetes mellitus during his periods of ACDUTRA. As noted, the Veteran has not provided any information or evidence which establishes that an event, injury, or disease was incurred during any period of active service to which his current diagnosis of diabetes mellitus may be related. In this regard, the Board notes that diabetes mellitus was not diagnosed during the Veteran's active duty service from June 1979 to October 1986. In addition, the evidence does not show, nor does the Veteran allege, that he served in the Republic of Vietnam or in or near the Korean DMZ. Therefore, he is not presumed to have been exposed to herbicides during service and service connection for diabetes mellitus may not be established based upon herbicide exposure. See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). Moreover, the evidence does not show, nor does the Veteran allege, that he manifested symptoms of or was diagnosed with diabetes mellitus during the first year after his active duty service from June 1979 to October 1986. In this regard, the Board again notes that the presumption for chronic diseases does not apply to the Veteran's periods of ACDUTRA and INACDUTRA and, thus, in order for the presumption to apply, the evidence must show the Veteran was diagnosed with diabetes mellitus within one year of his separation from active duty service in October 1986. As noted, the evidence shows diabetes mellitus was diagnosed no earlier than 2003, more than 15 years after his period of active duty service. Therefore, presumptive service connection for diabetes mellitus as a chronic disease is not warranted in this case. See 38 U.S.C.A. § 1112; 38 C.F.R. § 3.307, 3.309(a). The Board notes that the Veteran had periods of ACDUTRA and INACDUTRA throughout 2003, although the exact dates of such are not of record. Nevertheless, the Board notes that service connection cannot be established for diabetes mellitus based upon the Veteran's period of INACDUTRA unless the evidence shows that diabetes mellitus was incurred during INACDUTA as a result of an injury, which is not shown in this case. The Board has also considered whether service connection may be granted based upon the Veteran's period of ACDUTRA; however, there is no information or evidence of record which shows that the Veteran's diabetes mellitus was incurred as a result of a disease or injury incurred or aggravated during his ACDUTRA. In this regard, the Board notes that the National Guard records do not show any complaints, treatment, or a diagnosis of diabetes mellitus, which preponderates against a finding that diabetes mellitus was incurred in or aggravated by his period of ACDUTRA. In this regard, the Board notes that the Veteran was informed of the information and evidence needed to establish service connection for diabetes mellitus and, yet, there is no lay or medical evidence of record which establishes that diabetes mellitus was incurred during active duty service, the year following his discharge from active duty service in October 1986, or his period of ACDUTRA. The evidence of record also fails to establish that the Veteran's diabetes mellitus is, otherwise, related to his periods of active service. The Board has considered the Veteran's lay assertions of a nexus between his diabetes mellitus and his military service; however, the Veteran is not competent to opinion regarding the etiology of his diabetes mellitus. The determination as to the presence and etiology of that condition is medical in nature. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Indeed, the question of the relationship between diabetes mellitus and military service is not a simple medical question and it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the relationship between his diabetes mellitus and service. As such, the Veteran's statements regarding a nexus between his diabetes mellitus and military service are not considered competent or probative evidence favorable to his claim. In addition to the foregoing, the Board notes that there is no medical evidence or opinion of record which establishes that the Veteran's diabetes mellitus is related to his military service. In this regard, the Board notes the Veteran has not been afforded a VA examination in this case; however, the Board finds that such is not necessary in the instant case. Specifically, there is no credible and/or probative evidence indicating that his diabetes mellitus is related to service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In fact, there is no lay or medical evidence which establishes an event, injury, or disease in service to which his current diagnosis of diabetes mellitus may be related. The Court has held that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Additionally, a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, the Board finds that a VA examination and/or opinion is not necessary to decide this claim. In sum, the Board notes that the Veteran's STRs and National Guard records do not contain any evidence showing that diabetes mellitus was incurred during his active military service or his period of ACDUTRA. In addition, the evidence of record does not establish that his diabetes mellitus was incurred during the year after his discharge from active duty service in October 1986. Moreover, the evidence of record does not contain any medical evidence, opinion, or indication that his diabetes mellitus was incurred during service or is otherwise related thereto. Therefore, based on the foregoing, the Board finds the preponderance of the evidence is against a finding that the Veteran's current diagnosis of diabetes mellitus is related to his military service, as there is no competent and credible lay or medical evidence that relates his diagnoses to his active service. Because the preponderance of the evidence is against the grant of service connection in this case, the Veteran's claim is denied and the benefit-of-the-doubt doctrine is not for application. See Gilbert, supra. ORDER New and material evidence not having been received to reopen the claim of entitlement to service connection for residuals of a gunshot wound (GSW) to the left arm, the appeal is denied. Entitlement to service connection for diabetes mellitus is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs