Citation Nr: 1326441 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 11-09 095 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an increased evaluation for a service-connected appendectomy scar. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for diabetes mellitus type II. 3. Entitlement to service connection for diabetes mellitus type II. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1963 to November 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 and May 2010 rating decision respectively from the Regional Office in North Little Rock, Arkansas (RO) which denied entitlement to the Veteran's claims. The Veteran filed a notice of disagreement (NOD) on July 2010. Statements of the case (SOC) were issued on March 2011 and the Veteran perfected his appeal with the timely submission of a VA Form 9 in April 2011. In May 2011, the Veteran testified at a Board video hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Board notes that a request for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is part and parcel of a claim for an increased rating for a disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); Mayhue v. Shinseki, 24 Vet. App. 273, 281-82 (2011). In this case, however, neither the evidence nor the Veteran has raised this issue. As such, further discussion of this issue is not warranted. Having reopened the Veteran's claim, the issue of entitlement to service connection for diabetes mellitus type II 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. The Veteran's service-connected appendectomy scar has been manifested by a stable, superficial, light colored scar measuring 15 centimeters by .25 centimeters, located on the right lower abdomen to groin area, and causing pain during dressing or activities that involve putting objects against his body, at least for the period from July 2, 2008. 2. Service connection for diabetes mellitus type II was denied in an unappealed rating decision in November 2001. 3. Evidence submitted since the November 2001 decision is neither cumulative nor redundant, relates to an unestablished fact necessary to substantiate the claim, and triggers VA's duty to assist by obtaining a medical opinion. CONCLUSIONS OF LAW 1. The criteria for a 10 percent evaluation for the Veteran's service-connected appendectomy scar are met, for the period from July 2, 2008. 38 U.S.C.A. § 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. § 3.102, 3.159, 3.321, 4.71a, Diagnostic Code 7804 (2012). 2. The November 2001 rating decision, which denied a claim for entitlement to service connection for diabetes mellitus type II, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 3. The evidence received since the final November 2001 rating decision, which denied the claim of entitlement to service connection for diabetes mellitus type II, is new and material, and thus the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA Under the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VCAA notice requirements apply to all five elements of a service connection claim, including: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In a claim for an increased evaluation, the VCAA requirement is generic notice: the type of evidence needed to substantiate the claim, which consists of evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. (2009). Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). By letters dated in August 2009 and November 2009, the RO advised the Veteran of the evidence needed for claim substantiation and explained what evidence VA would obtain or assist in obtaining and what information or evidence the claimant was responsible for providing. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The letters apprised the Veteran of the downstream disability rating and effective date elements for claims, as required under Dingess v. Nicholson, 19 Vet. App. 473 (2006). The claim was readjudicated in two SOCs dated March 2011. The Board finds that VA's duty to notify has been met. VA's duty to assist the Veteran has also been satisfied. 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran's service treatment records(STRs), private treatment records, and VA outpatient treatment records have been obtained and associated with the claims file. The duty to assist also includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, VA medical records and relevant Social Security Administration (SSA) records. 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1321-23 (Fed. Cir. 2010). VA provided the Veteran with adequate medical examinations in August 2009 and January 2011. The examinations were adequate because they contained a history obtained from the Veteran and thorough examinations relevant to the applicable rating criteria. They also addressed the functional effects caused by the Veteran's disability, to include the effects on his occupation. The Veteran has also been afforded a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the hearing officer who chairs a hearing to explain the issues and suggest the submission of evidence that may have been overlooked. Here, the presiding Veterans Law Judge identified the issues to the Veteran and asked specific questions directed at identifying whether the Veteran met the criteria for an increased evaluation for a service-connected appendectomy scar and service connection for diabetes mellitus type II, and the Veteran and his witness volunteered his subjective symptoms and employment history during the period under consideration. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim on appeal, and the Veteran provided testimony relevant to those elements. As such, the Board finds that there is no prejudice in deciding the claim at this time and no further action pursuant to Bryant is necessary. There is no indication in the record that additional evidence relevant to the issue decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. at 121-22. The Board finds that the duty to assist has been met. Legal Criteria Increased evaluation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2012). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1(2012). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41(2012). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Historically, a February 1995 rating decision granted the Veteran service connection for an appendectomy scar, rated 0 percent, effective August 30, 1994. This claim for increase was received in July 2009. The criteria for rating scars were revised in 2008. The revised criteria apply to all claims filed on or after October 23, 2008. 73 Fed. Reg. 54,708 (2008). Therefore, the revised criteria are for application in the instant case. The Veteran's appendectomy scar is rated as 0 percent disabling under the diagnostic code for scars, other in accordance with the General Rating Formula for Schedule of ratings-skin. 38 C.F.R. § 4.118, Diagnostic Code 7805. A 10 percent evaluation is warranted for a deep and nonlinear scar, not of the head, face, or neck, with an area or areas of at least 6 square inches (39 sq. cm.), but less than 12 square inches (77 sq. cm.); a superficial and nonlinear scar, not of the head, face, or neck with an area or areas of 144 square inches (929 sq. cm.) or greater; or one or two scars that are unstable or painful. Id. A 20 percent evaluation is warranted for a deep and nonlinear scar, not of the head, face, or neck, with an area or areas of at least 12 square inches (77 sq. cm.), but less than 72 square inches (465 sq. cm.) or three or four scars that are unstable or painful. Id. A 30 percent evaluation is warranted for a deep and nonlinear scar, not of the head, face, or neck, with an area or areas of at least 72 square inches (465 sq. cm.), but less than 144 square inches (929 sq. cm.) or five or more scars that are unstable or painful. Id. A 40 percent evaluation is warranted for a deep and nonlinear scar, not of the head, face, or neck, with an area or areas of 144 square inches (929 sq. cm.) or greater. Id. Note 1 of Diagnostic Code 7801 states that a deep scar is one associated with underlying soft tissue damage. Note 2 of Diagnostic Code 7801 states that if multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separates the anterior and posterior portions of the trunk. Id. Combine the separate evaluations under § 4.25. Qualifying scars are scars that are nonlinear, deep, and are not located on the head, face, or neck. Id. Note 1 of Diagnostic Code 7802 states that a superficial scar is one not associated with underlying soft tissue damage. Note 2 of Diagnostic Code 7802 states that if multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separates the anterior and posterior portions of the trunk. Id. Combine the separate evaluations under § 4.25. Id. Qualifying scars are scars that are nonlinear, superficial, and are not located on the head, face, or neck. Id. Note 1 of Diagnostic Code 7804 states that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note 2 of Diagnostic Code 7804 states that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note 3 of Diagnostic Code 7804 states that scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. New and material A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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 (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board without consideration in that decision in accordance with the provisions of § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not previously submitted to agency decisionmakers. "Material" evidence is evidence which, 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. In determining whether new and material evidence has been submitted, the evidence is generally presumed to be credible. See Kutscherousky v. West, 12 Vet. App. 369 (1999) (per curium). In addition, all of the evidence received since the last final disallowance shall be considered in making the determination. See Evans v. Brown, 9 Vet. App. 273, 283 (1996). In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court recently held that when evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Analysis Increased evaluation In July 2009, the Veteran alleged that his service-connected appendectomy scar had worsened since his last evaluation. A review of the Veteran's VA outpatient treatment records and private treatment records indicated that the Veteran had right lower quadrant surgical scar, but provided no further descriptors. No indication of pain or tenderness was noted. The Veteran was provided with a VA examination in August 2009. At that examination, the examiner noted that the scar was related to an appendectomy and manifested by a stable, superficial, light colored scar measuring 15 centimeters by .25 centimeters, located on the right lower abdomen to groin area, and causing pain during dressing or activities that involve putting objects against his body. There were no significant effects noted for occupation. It was also noted that the Veteran's scar has prevented him from wearing a belt in recent years. The Veteran was provided with an additional VA examination in January 2011. At this examination, it was noted that the Veteran had a surgical scar measuring 15 centimeters by .25 centimeters located on the trunk, anterior surface, running from the right lower abdomen to groin area. There was no skin breakdown over the scar and no pain. The scar was related to an appendectomy and found to be superficial. There were no noted effects on occupation or daily activities. At the Veteran's May 2011 Board hearing, he testified that he felt that the August 2009 VA examination was very thorough. The examiner examined the lower parts of the Veteran's body and highlighted the problems on her computer. She noted the Veteran's tenderness and inability to wear a belt or press things against his body. On the contrary, the Veteran stated that the January 2011 VA examination was disappointing and that the examiner did not provide a thorough, hands-on examination. He stated that he still cannot wear a belt currently and that, if he presses objects against his body in the course of his duties at work, he will feel a lot of tenderness the next day. Based on the above, the Board finds that the Veteran's appendectomy scar met the criteria for an increased evaluation of 10 percent, as the 2009 VA examination shows that the Veteran had one scar manifested by pain and tenderness. This increase is effective from July 2, 2008, the first date up to one year before the claim that it was factually ascertainable that his condition had worsened. 38 U.S.C.A. § 3.400 (o)(1) states that, except as provided in paragraph (o)(2) of this section and §3.401(b), date of receipt of claim or date entitlement arose, whichever is later, will be the effective date. However, 38 U.S.C.A. § 3.400 (o)(2) provides that the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within one year from such date otherwise, date of receipt of claim. Although, the Veteran's 2009 VA examination showing evidence of a painful scar took place in August, nearly a month after he filed his claim, the examination report reflects that the Veteran had been experiencing these symptoms in recent years past. Therefore, it follows that the Veteran had these same symptoms of pain at least one year earlier from when he filed his claim on July 2, 2008. Applicable law mandates that when an appellant seeks an increased rating, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See A.B. v. Brown, 6 Vet. App. 35 (1993). As such, the Veteran's claim for an increased rating remains on appeal and consists of the question of whether an evaluation in excess of 10 percent is warranted for his service-connected appendectomy scar at any point during the appeal period. The Board finds that the Veteran only meets the criteria for a 10 percent evaluation throughout the entire appeal period. In order to warrant the next higher evaluation, the evidence must show a deep and nonlinear scar, not of the head, face, or neck, with an area or areas of at least 12 square inches (77 sq. cm.) or three or more scars that are unstable or painful. Although the Veteran's 2009 VA examination shows that the Veteran has at least one painful scar, it is merely superficial and there is no indication that the Veteran has a deep and linear scar or more than one. Because the medical evidence of record has not at any time during the pertinent appeals period shown the above requirements, the Board finds that the Veteran is not entitled to an evaluation in excess of 10 percent for his condition. Consideration has also been given regarding whether the schedular evaluations are inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of 'an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. 38 C.F.R. § 3.321(b)(1); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008). In this regard, the schedular evaluations in this case are not inadequate. Ratings in excess of those assigned are provided for certain manifestations of the service-connected appendectomy scar, but the evidence reflects that those manifestations, namely the requirement of a deep and nonlinear scar, not of the head, face, or neck, with an area or areas of at least 12 square inches (77 sq. cm.) or three or more scars that are unstable or painful, are not present. Although there were significant effects on dressing and pressing objects up against the Veteran's body, there were no significant effects on the Veteran's occupation. The diagnostic criteria adequately describe the severity and symptomatology of the Veteran's appendectomy scar. Therefore, the Veteran's current rating appropriately contemplates the scope of his complaints. Accordingly, referral is not required. The evidence of record does not warrant ratings in excess of those assigned for the Veteran's appendectomy scar at any time during the period pertinent to this appeal. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012). New and material In a November 2001 rating decision, the RO denied a claim for service connection for diabetes mellitus type II on the basis that the evidence did not show that the Veteran was diagnosed with diabetes during service, within one year of service, or that he served in Vietnam. The evidence considered at this time consisted of service treatment records, post-service treatment records, to include private records and VA outpatient treatment records, and the Veteran's contentions. In this regard, the Board notes that although the STRs indicate that the Veteran had elevated blood sugar levels during an appendectomy in January 1965, there was no indication that such incident was or has ever been diagnosed as diabetes mellitus type II. The Veteran was notified of that decision and of his appellate rights by way of letter sent to him on December 4, 2001. He did not appeal that rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. See 38 C.F.R. § 3.156(b); Bond, 659 F.3d at 1362; see also Buie, 24 Vet. App. at 251-52. Thus, the November 2001 rating decision became final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1105 (2012). The RO received the instant petition to reopen the claim in October 2009. In a May 2010 rating decision, the RO declined to reopen the claim on the basis that new and material evidence had not been submitted. The evidence considered at this time consisted of the Veteran's service treatment records, private treatment records dated from March 1987 to April 1987, VA outpatient treatment records from November 1995 to May 2010, and statements from the Veteran. The Veteran was notified of that decision and of his appellate rights by way of letter sent to him on May 25, 2010. The Veteran received a VA diabetes examination in January 2011 after the May 2010 rating decision and this was considered in the March 2011 SOC. In his written statements, the Veteran indicated that he had a history of glucose intolerance beginning with a high blood sugar count during a 1965 appendectomy and also noted at the time of a March 1987 spinal surgery, at which he was told to have his personal doctor check it. He has stated that he has been treated for sugar diabetes by the VA Medical Center in Fayetteville, Arkansas since 1996. STRs show that the Veteran was hospitalized for appendicitis in January 1965 and the hospital report shows that fasting blood sugar on admission was elevated at 162 with IV running. A fasting blood sugar without benefit of IV was 124 and a repeat fasting blood sugar was normal at 86. Glucose tolerance curve was completely within normal limits. The Veteran's discharge examination in September 1965 showed urinalysis was negative for sugar and there was no evidence of elevated glucose. No diagnoses of glucose intolerance or diabetes mellitus type II were noted during service. A review of the Veteran's private treatment records shows that he received spinal surgery for a probable herniated nucleus puloposus L5-S1 in March 1987. Records relating to this surgery and post-operative care show blood tests in March 1987 with glucose readings of 105, 97, and 96. These readings were noted as falling within the expected normal range. There was no other indication given regarding any diagnoses of glucose intolerance or diabetes mellitus type II. A review of the Veteran's VA outpatient treatment records revealed that in July 1999 that the Veteran had a normal fasting blood sugar of 107. The assessment was normal fasting blood sugar with no evidence of diabetes mellitus. In June 2000, the Veteran's fasting blood sugar was elevated at 257 and he received his first diagnosis of diabetes mellitus type II, which was noted as evolving over the past year from a long-standing state of glucose intolerance. However, the long-standing state of glucose intolerance was based upon the Veteran's self- reported history of abnormal glucose tolerance for 30 years and reported abnormal glucose levels with his appendectomy and spine surgery. In July 2001, the Veteran was placed on Metaformin and treated with a diabetic diet. The Veteran has continued to be treated for his diabetes mellitus to present. There is no indication found in the VA treatment records that this condition was incurred in or caused by the Veteran's military service. The Veteran was provided with a VA examination in January 2011. At this examination, the examiner noted that the Veteran was diagnosed with diabetes mellitus type II with onset in 1999. Since that time the Veteran had been treated with Metaformin and Glipizide. The condition has gotten progressively worse. The Veteran has additionally been treated with a restricted diet. At the examination, the Veteran's blood glucose level was recorded as 138. The Veteran's diagnosis of diabetes mellitus was confirmed and there were no noted effects on the Veteran's usual occupation or daily activities. The examiner opined that the Veteran's diabetes mellitus type II was less likely than not caused by or a result of high glucose levels that the Veteran had during his appendectomy in service. In support, the examiner provided that the Veteran would have most likely had residuals or complications noted in his medical records had he been diagnosed with diabetes all the way back to 1965. He further stated that, because the Veteran was not properly treated for diabetes until 1999, he would have sustained an impact throughout his entire body and organ damage. However, his actual condition is only manifested by a necessity to take oral medication and no residuals or diabetic complications. At the Veteran's May 2011 Board hearing, the Veteran testified that he was diagnosed with glucose intolerance during an appendectomy in service. He further stated that he was told by an anesthesiologist at the time of his March 1987 spine surgery that he should see his local physician regarding his high sugar levels. The Veteran's spouse testified that she was present at the Veteran's in-service appendectomy and overheard the doctors say that he had high glucose. Additionally, the Veteran's representative testified that he is a registered nurse who has worked with hundreds of diabetic patients. The representative testified that, in his opinion, there are enormously different levels of diabetic conditions. He further stated that, despite the finding of the January 2011 examiner that the Veteran would have had extensive residuals and organ damage if he had been actually diagnosed with diabetes in 1965 with no treatment until 1999, it is a very strong possibility that the Veteran did have a mild diabetic condition while in service, and after service he continued to have an asymptomatic manifestations until his condition worsened with age in 1999. The representative also provided that there is well-documented evidence of instances in which people have diabetes, but are unaware of any symptoms. The Veteran testified that, due to lack of health insurance and his wife's medical expenses, he did not see a doctor from the time he left the service in 1965 until his friend got him an appointment at the VA in 1993. The Veteran's VA outpatient treatment records, written statements, and testimony constitute new evidence as they were not previously considered by the RO. Since the lack of evidence demonstrating a relationship between the Veteran's in-service high blood sugar readings, his subsequent lay reports of being told he had high blood sugar in 1987, and diagnosis of diabetes mellitus type II formed the basis for the initial denial of the claim and a lack of new and material evidence in the subsequent decision, in order to be material, any new evidence must relate to this unestablished fact and/or at least trigger the duty to assist by providing a medical opinion. See 38 C.F.R. § 3.303 (2012); see also Shade, 24 Vet. App. at 117. The Veteran's VA outpatient treatment records, written statements, and testimony essentially indicate that his current diabetes mellitus is possibly related to an instance of high blood sugar that may have occurred in military service and the possibility that his condition may have remained asymptomatic for decades until the eventual diagnosis and treatment. The Board notes that the Veteran is competent to testify as to the severity of the symptomatology associated with his diabetes mellitus type II problems as well as his receipt of information about his blood sugar during and after service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, his statements are presumed credible for the purposes of determining whether new and material evidence has been submitted. Further, the statements of his representative, who has purported to be a registered nurse with great familiarity of diabetic cases, also tend to call into question the findings of the January 2011 VA examiner. In short, the new evidence relates to an unestablished fact of the actual onset of the Veteran's diabetes and its continuity with his current diagnosed condition. Hence, it is material. It also triggers VA's duty to assist by providing a medical opinion, as the statements of Veteran's representative have indicated that there may be a variance in the development of diabetes cases that was not considered in the Veteran's January 2011 VA examination. As new and material evidence has been received, the claim is reopened. The Veteran's appeal to this extent is allowed. ORDER Subject to the controlling laws and regulations applicable to payment of monetary benefits, entitlement to an increased evaluation of 10 percent, but not more, for service-connected appendectomy scar, for the period from July 2, 2008, is granted. New and material evidence has been received to reopen the claim of entitlement to service connection for diabetes mellitus type II; the appeal is granted to this extent. REMAND Having reopened the Veteran's claim for entitlement to service connection for diabetes mellitus type II, VA has a duty to assist the Veteran in the development of the claim by seeking an additional medical opinion on the question of causal nexus and obtaining any outstanding treatment records. The Veteran has indicated that he had a history of glucose intolerance beginning with a high blood sugar count during a 1965 appendectomy and also noted at the time of a March 1987 spinal surgery, at which he was told to have his personal doctor check it. He has asserted that these instances of high blood sugar are indicative of his eventual diagnosis of diabetes mellitus type II in 1999. STRs show that the Veteran was hospitalized for appendicitis in January 1965 and the hospital report shows that fasting blood sugar on admission was elevated at 162 with IV running. A fasting blood sugar without benefit of IV was 124 and a repeat fasting blood sugar was normal at 86. Glucose tolerance curve was completely within normal limits. The Veteran's discharge examination in September 1965 showed urinalysis was negative for sugar and there was no evidence of elevated glucose. No diagnoses of glucose intolerance or diabetes mellitus type II were noted during service. A review of the Veteran's private treatment records shows that he received spinal surgery for a probable herniated nucleus puloposus L5-S1 in March 1987. Records relating to this surgery and post-operative care show blood tests in March 1987 with glucose readings of 105, 97 and 96. These readings were noted as falling within the expected normal range. There was no other indication given regarding any diagnoses of glucose intolerance or diabetes mellitus type II. A review of the Veteran's VA outpatient treatment records revealed that in July 1999 that the Veteran had a normal fasting blood sugar of 107. The assessment was normal fasting blood sugar with no evidence of diabetes mellitus. In June 2000, the Veteran's fasting blood sugar was elevated at 257 and he received his first diagnosis of diabetes mellitus type II, which was noted as evolving over the past year from a long-standing state of glucose intolerance. However, the long-standing state of glucose intolerance was based upon the Veteran's self- reported history of abnormal glucose tolerance for 30 years and reported abnormal glucose levels with his appendectomy and spine surgery. In July 2001, the Veteran was placed on Metaformin and treated with a diabetic diet. The Veteran has continued to be treated for his diabetes mellitus to present. There is no indication found in the VA treatment records that this condition was incurred in or caused by the Veteran's military service. The Veteran was provided with a VA examination in January 2011. At this examination, the examiner noted that the Veteran was diagnosed with diabetes mellitus type II with onset in 1999. Since that time the Veteran had been treated with Metaformin and Glipizide. The condition has gotten progressively worse. The Veteran has additionally been treated with a restricted diet. At the examination, the Veteran's blood glucose level was recorded as 138. The Veteran's diagnosis of diabetes mellitus was confirmed and there were no noted effects on the Veteran's usual occupation or daily activities. The examiner opined that the Veteran's diabetes mellitus type II was less likely than not caused by or a result of high glucose levels that the Veteran had during his appendectomy in service. In support, the examiner provided that the Veteran would have most likely had residuals or complications noted in his medical records had he been diagnosed with diabetes all the way back to 1965. He further stated that, because the Veteran was not properly treated for diabetes until 1999, he would have sustained an impact throughout his entire body and organ damage. However, his actual condition is only manifested by a necessity to take oral medication and no residuals or diabetic complications. As stated above, at the Veteran's May 2011 Board hearing, the Veteran testified that he was diagnosed with glucose intolerance during an appendectomy in service. He further stated that he was told by an anesthesiologist at the time of his March 1987 spine surgery that he should see his local physician regarding his high sugar levels. The Veteran's spouse testified that she was present at the Veteran's in-service appendectomy and overheard the doctors say that he had high glucose. Additionally, the Veteran's representative testified that he is a registered nurse who has worked with hundreds of diabetic patients. The representative testified that, in his opinion, there are enormously different levels of diabetic conditions. He further stated that, despite the finding of the January 2011 examiner that the Veteran would have had extensive residuals and organ damage if he had been actually diagnosed with diabetes in 1965 with no treatment until 1999, it is a very strong possibility that the Veteran did have a mild diabetic condition while in service, and after service he continued to have an asymptomatic manifestations until his condition worsened with age in 1999. The representative also provided that there is well-documented evidence of instances in which people have diabetes, but are unaware of any symptoms. The Veteran testified that, due to lack of health insurance and his wife's medical expenses, he did not see a doctor from the time he left the service in 1965 until his friend got him an appointment at the VA in 1993. In light of this evidence, the Board finds that the Veteran should be afforded a new VA examination to address the questions of whether his currently diagnosed diabetes mellitus type II was incurred as a result of service. See McLendon. v. Nicholson, 20 Vet. App. 79 (2006). In particular, the examiner should focus on the potential that the Veteran's condition could have remained asymptomatic for decades from the time he left service in 1965 to the time of his diagnosis in 1999. Additionally, as this case must be remanded for the foregoing reasons, any recent treatment records, including VA records, should also be obtained. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. After any additional evidence has been associated with the claims file, the Veteran should be afforded an appropriate examination in order to determine the etiology of his diabetes mellitus type II. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner must consider the Veteran's lay testimony in rendering a decision. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that current diabetes mellitus type II had its onset in service, or is otherwise the result of a disease or injury in service. In particular, the examiner should discuss the Veteran's high glucose readings during his appendectomy in service as well as the statements of his representative, a nurse practitioner, at the May 2011 Board hearing regarding the possibility of whether the Veteran had an asymptomatic diabetes over the course of decades. The examiner should provide a rationale for all opinions. 3. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs