Citation Nr: 1331374 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 09-24 358 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Whether new and material evidence has been submitted sufficient to reopen a claim of entitlement to service connection for a disability manifested by memory loss, to include as secondary to service-connected diabetes mellitus. 2. Whether new and material evidence has been submitted sufficient to reopen a claim of entitlement to service connection for a bladder disability, to include as secondary to service-connected diabetes mellitus. 3. Entitlement to service connection for a disability manifested by memory loss, to include as secondary to service-connected diabetes mellitus. 4. Entitlement to an evaluation in excess of 20 percent for diabetes mellitus. 5. Entitlement to an evaluation in excess of 10 percent for diabetic neuropathy of the left lower extremity. 6. Entitlement to an evaluation in excess of 10 percent for diabetic neuropathy of the right lower extremity. 7. Entitlement to a separate evaluation for diabetic neuropathy of the bilateral upper extremities. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from June 1968 to April 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The issues of entitlement to service connection for a disability manifested by memory loss and entitlement to increased ratings for diabetes mellitus, diabetic neuropathy of the lower extremities, and separate evaluations for diabetic neuropathy of the bilateral upper extremities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A December 2004 rating decision denied the Veteran's claims of entitlement to service connection for memory loss and a bladder disorder. The Veteran was notified of his appellate rights, but did not complete an appeal of the rating decision. 2. With respect to memory loss, evidence received since the December 2004 rating decision is not cumulative of the record at the time of the prior denial as it relates to an unestablished fact necessary to substantiate the claim of service connection for a disability manifested by memory loss and raises a reasonable possibility of substantiating the Veteran's claim of service connection. 3. With respect to a bladder disorder, evidence received since the December 2004 rating decision is cumulative of the evidence of record at the time of the prior denial and does not relate to an unestablished fact necessary to substantiate the claim of service connection for a bladder disorder nor does it raise a reasonable possibility of substantiating the Veteran's claim of service connection. CONCLUSIONS OF LAW 1. The December 2004 rating decision which denied the Veteran's claims of entitlement to service connection for memory loss and a bladder disorder is final. 38 U.S.C.A. § 7105(c) (West 2002). 2. Evidence received since the December 2004 rating decision in connection with Veteran's claim of entitlement to service connection for a disability manifested by memory loss is new and material and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. Evidence received since the December 2004 rating decision in connection with Veteran's claim of entitlement to service connection for a bladder disorder is not new and material. 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 When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA's duty to notify has been satisfied prior to the initial AOJ decision through notice letters dated March 2006 and September 2008 that fully addressed all notice elements. These letters informed the Veteran of what evidence was required to substantiate his application to reopen previously disallowed claims as required by Kent v. Nicholson, 20 Vet. App. 1 (2006), and how to establish service connection, and of the Veteran's and VA's respective duties for obtaining evidence. The Veteran was requested to submit any evidence in his possession and has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). Service treatment records are associated with claims file. All post-service treatment records identified by the Veteran have also been obtained. He has not identified any additional records that should be obtained prior to appellate consideration. VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran has been afforded two VA examinations in conjunction with his appeal. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2012); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). These VA examinations are adequate for the purposes of evaluating the Veteran's disabilities on appeal, as they involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran, and provide an adequate description of pertinent symptomatology. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis In deciding the Veteran's claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. I. Application to Reopen The RO previously denied the Veteran's claims of service connection for memory loss and a bladder disorder by a December 2004 rating decision. Evidence on file at this time included the Veteran's service treatment records, VA treatment records, the report of an August 2004 VA examination and statements from the Veteran. In the December 2004 denial, the RO determined that service connection for both memory loss and a bladder disorder was not warranted because there was insufficient evidence to establish that the Veteran then suffered from a chronic disability that was etiologically related to his period of active service or to his service-connected diabetes mellitus. The Veteran was notified of this decision and of his procedural and appellate rights by letter in December 2004. He did not complete an appeal of this decision. Thus, it is final. 38 U.S.C.A. § 7105(a) (West 2002); 38 C.F.R. §§ 20.302 , 20.1103 (2012). A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). 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 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, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). Finally, for the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence received since the December 2004 rating decision includes a number of VA treatment records. Significantly, with respect to memory loss, an October 2005 VA treatment record notes the Veteran's cognitive deficits, and further notes the Veteran suffers a number of medical problems that could contribute to these cognitive difficulties, including his service-connected diabetes mellitus. With respect to a bladder disability, the Veteran has identified a number of test results showing microalbuminuria and proteinuria. However, the Board observes both are indicative of abnormal laboratory findings, specifically abnormal levels of proteins in the kidney and urine. Despite these laboratory findings, the newly received evidence does not, however, indicate the Veteran has been diagnosed with a chronic bladder disorder. The Board concludes that the additional evidence is new and material with respect to the issue of service connection for a disability manifested by memory loss. While it is unclear whether the Veteran suffers from a chronic disability manifested by memory loss, newly received VA treatment records document a cognitive deficit and indicates a possibly such a deficit could be related to his service-connected diabetes. Such evidence is sufficient to trigger VA's duty to provide the Veteran an examination and, thus, constitutes new and material evidence. See 38 C.F.R. § 3.159(c)(4); see also Shade, 24 Vet. App. at 118. However, the newly received evidence fails to show the Veteran has been diagnosed with a chronic bladder disorder. Absent such a diagnosis, new and material evidence has not been submitted. Consequently, the Veteran's claim of entitlement to service connection for a disability manifested by memory loss is reopened; the claim of entitlement to service connection for a bladder disorder is not reopened. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a disability manifested by memory loss is reopened; to this extent only, the appeal is granted. New and material evidence sufficient to reopen a claim of entitlement to service connection for a bladder disorder has not been submitted; the appeal is denied. REMAND As discussed above, the Board has reopened the Veteran's claim of entitlement to service connection for a disability manifested by memory loss. Specifically, VA treatment records indicate the Veteran suffers from a cognitive deficit, which could be due to, at least in part, his service-connected diabetes mellitus. See, e.g., October 2005 VA progress note. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When aggravation of a Veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen, supra. In this case, the record is unclear as to whether the Veteran suffers a disability resulting in memory loss and, if so, whether such a disability is due to or aggravated by his service-connected diabetes mellitus. As such, a remand is necessary to provide the Veteran a VA examination to address this disability. See 38 C.F.R. § 3.159(c)(4) (2012). Further, the report of a January 2009 VA peripheral nerves examination indicates the Veteran complained of new numbness and tingling to the hands, indicating a new diagnosis of diabetic neuropathy to the hands. Complications related to the diabetic process are to be assigned separate evaluations if a compensable evaluation is warranted. If evaluated as noncompensable, these complications are to be evaluated together with the diabetic process. See 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). While the Veteran has received a new diagnosis of diabetic neuropathy of the upper extremities, the January 2009 VA examinations do not provide sufficient detail to allow the Board to determine whether a compensable evaluation would be warranted under applicable diagnostic criteria. See generally 38 C.F.R. § 4.124a (pertaining to diseases of the peripheral nerves). Given the inadequacy of the January 2009 VA examinations, this matter must be remanded to afford the Veteran a new VA examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Further, the Veteran should undergo an examination to assess the nature and severity of his diabetes mellitus and diabetic neuropathy of the lower extremities given that the most recent evidence regarding the severity of these disabilities is over 4 years old and there are indications of worsening. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of any disability manifested by memory loss. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. Any testing deemed necessary, should be performed. The examiner is requested to address the following: a. Does the Veteran suffer a chronic disability manifested by memory loss? If so, please provide a current diagnosis. b. For any disability diagnosed, is it at least as likely as not (probability of at least 50 percent), that such disability is proximately due to (caused by) a service-connected disability, to include diabetes mellitus. c. If (b) is answered no, is it at least as likely as not (probability of 50 percent) that any such disability has been aggravated (chronically worsened beyond normal progression) by a service-connected disability, to include diabetes mellitus. A complete rationale should be provided for all opinions expressed. 2. Schedule the Veteran for an examination to determine the nature and severity of any diabetes mellitus, and diabetic neuropathy of the bilateral upper and lower extremities. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. Any testing deemed necessary, should be performed. The examiner should identify and describe in detail all symptoms/manifestations related to the Veteran's diabetes mellitus to include diabetic neuropathy of the upper and lower extremities. The examiner should also discuss whether the Veteran's diabetic neuropathy causes complete paralysis, or mild, moderate, or severe incomplete paralysis of any nerves. A complete rationale for any opinion expressed should be included in the report. 3. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claims based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs