Citation Nr: 1326255 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 10-31 379 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for diabetes mellitus, to include as secondary to exposure to herbicide agents. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from October 1961 to February 1963. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Louisville, Kentucky (RO). FINDINGS OF FACT 1. A May 2006 rating decision denied the Veteran's claim of entitlement to service connection for diabetes mellitus. 2. Evidence associated with the claims file since the May 2006 rating decision is not material and does not raise a reasonable possibility of substantiating the issue of entitlement to service connection for diabetes mellitus. CONCLUSION OF LAW The evidence received since the May 2006 rating decision is not new and material, and therefore, the claim of entitlement to service connection for diabetes mellitus is not reopened. 38 U.S.C.A. §§ 5103A, 5107, 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the Veteran, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006). Specifically, the Veteran was notified in letters dated in June 2009, August 2009, and February 2010. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the adjudication in the supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the Veteran of any evidence that could not be obtained. The Veteran has not referred to any additional, unobtained, relevant, available evidence. Although the Veteran was not provided with a VA medical examination in conjunction with the claim on appeal, VA is not required to provide such an examination for claims to reopen finally decided decisions. 38 C.F.R. § 3.159(c). Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). An unappealed rating decision in May 2006 denied the Veteran's claim of entitlement to service connection for diabetes mellitus on the basis that there was no medical evidence that the Veteran's diabetes mellitus began in service or was related to service. The relevant evidence of record at the time of the May 2006 rating decision consisted of the Veteran's service treatment records, some service personnel records, and VA and private medical records dated from August 1978 to January 2006. The Veteran did not file a notice of disagreement after the May 2006 rating decision. Therefore, the May 2006 rating decision is final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103 (2012). A finally decided claim will be reopened in the event that new and material evidence is presented. 38 U.S.C.A. § 5108. "New" evidence means existing evidence not previously submitted to VA. "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. Although the RO addressed the Veteran's claim on a direct basis in September 2009 and July 2010, these decisions are not binding on the Board. The Board must first decide whether evidence has been received that is both new and material to reopen the claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239 (1993). Consequently, the Board will adjudicate the question of whether new and material evidence has been received, furnishing a complete explanation as to its reasons and bases for such a decision. In June 2009, a claim to reopen the issue of entitlement to service connection for diabetes mellitus was received. Evidence of record received since the May 2006 rating decision includes service personnel records, VA and private medical records dated from October 1983 to July 2010, Social Security Administration records, statements from the Veteran, and internet articles. Most of the evidence received since the May 2006 rating decision is "new" in that it was not of record at the time of the May 2006 decision. However, none of the evidence is material, as it is redundant of evidence that was already of record at the time of the May 2006 rating decision, does not demonstrate that the Veteran's diabetes mellitus is related to service, does not demonstrate that the Veteran was exposed to qualify herbicide agents during service, or does not demonstrate that the Veteran's service was of such a nature that he is presumed to have been exposed to qualifying herbicide agents during service. While the new evidence includes official service department records that existed and had not been associated with the claims file at the time of the May 2006 rating decision, reconsideration of the claim is not warranted because the newly associated service records are not relevant. 38 C.F.R. § 3.156(c). The Veteran's service personnel records do not document any in-service diabetes mellitus, nor do they demonstrate that the Veteran was exposed to any qualifying herbicide agent during service, or is presumed to have been so exposed. As such, the additional service personnel records do not include any evidence which is relevant to the Veteran's claim. None of the medical evidence submitted by the Veteran includes any information which relates his diabetes mellitus to service or to exposure to any chemical or biological agent of any kind, let alone one which the Veteran was exposed to during service. Indeed, the new medical evidence actively demonstrates that the Veteran's diabetes mellitus arose in approximately 1988, 25 years after separation from service, and indicates that his diabetes mellitus is related to his obesity. The Veteran claims that he was exposed to Agent Blue during service at the Dugway Proving Grounds. However, these personal statements regarding exposure to various chemical and biological agents during service are simply redundant of similar statements made by the Veteran which were of record at the time of the last prior final denial of the claim. To substantiate his claim, the Veteran has submitted internet articles alleging that various chemical and biological agents were released at Dugway Proving Grounds. However, the internet articles provided by the Veteran claim that the agents that were released where chemical and biological weapons, not qualifying herbicide agents. In addition, they are also simply redundant of the Veteran's statements which were of record at the time of the last prior final denial of the claim. Accordingly, they do not provide any material evidence that the Veteran was exposed to any agent for which would warrant presumptive service connection for diabetes mellitus. 38 C.F.R. §§ 3.307, 3.309 (2012). Furthermore, the new evidence includes a September 2009 information request response from the Center for Unit Records Research which stated that there was no evidence that herbicide agents were used at Dugway Proving Ground during the period of time that the Veteran served there. Accordingly, the evidence received since the May 2006 rating decision is not material as it is redundant and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for diabetes mellitus. Since the additional evidence received since the May 2006 rating decision is not material and does not raise a reasonable possibility of substantiating the Veteran's claim, it does not constitute new and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for diabetes mellitus. As new and material evidence to reopen the finally disallowed claim has not been submitted, the benefit of the doubt doctrine is not for application. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER New and material evidence not having been submitted, the claim to reopen the issue of entitlement to service connection for diabetes mellitus is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs