Citation Nr: 1332361 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 13-08 273 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for service connection for diabetes mellitus type II; and, if so, whether service connection for diabetes mellitus type II is warranted. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to December 1967, including wartime service in Vietnam from October 1966 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which confirmed and continued an October 2009 denial of service connection for diabetes mellitus type II. FINDINGS OF FACT 1. In a rating decision in October 2009, the RO denied service connection for diabetes mellitus type II; after the Veteran was notified of the adverse decision and of his right to appeal, he did not appeal, and no new evidence pertinent to the basis of the denial of that claim was received by VA within one year from the date that the RO mailed notice of the determination to the Veteran. 2. Evidence that is not cumulative or redundant of that in the record in October 2009, and that relates to an unestablished fact necessary to substantiate the claim for service connection for diabetes mellitus type II, has been received. 3. Competent medical evidence shows a current diagnosis of diabetes mellitus type II, manifest to a degree that is compensably disabling. CONCLUSIONS OF LAW 1. The October 2009 rating decision denying service connection for diabetes mellitus type II is final. 38 U.S.C.A. § 7105(a) (West 2002); 38 C.F.R. §3.104 (2012). 2. Evidence added to the record since the October 2009 rating decision denying service connection for diabetes mellitus type II is new and material. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The criteria for establishing service connection for diabetes mellitus type II have been met. 38 U.S.C.A. §§ 1110, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307(2)(6)(ii), 3.309(e) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board reopens and grants service connection for diabetes mellitus type II. Thus, no discussion of VA's duties to notify and assist is required. I. New and Material Evidence In a rating decision in October 2009, the RO denied the Veteran's initial service connection claim for diabetes mellitus type II on the grounds that the evidence did not reflect a confirmed diagnosis of diabetes mellitus type II. After appropriate notice of this decision and of his appeal rights, the Veteran did not appeal, and no evidence pertaining to the issue was either physically or constructively received by VA within one year of the October 2009 rating decision. The October 2009 decision is therefore final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.156(b), 3.160(d), 20.302; see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). In August 2011 the Veteran filed a claim to reopen, which was denied by the RO in a May 2012 rating decision on the grounds that the Veteran's symptoms did not meet the criteria for a diagnosis of diabetes mellitus type II sufficient for VA rating purposes. The Veteran has appealed. The October 2009 rating decision is the last final decision on the merits. The claim decided therein is not subject to revision on the same factual basis. 38 U.S.C.A. § 7104. In order to reopen the claim, new and material evidence is needed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). At the time of the October 2009 rating decision the evidence consisted of service treatment records, which contain no evidence of diabetes; service department confirmation that the Veteran served in Vietnam from October 1966 to December 1967; and private medical records, including laboratory records, dating from 2000 to 2009, which showed glucose levels to be well within normal limits. Evidence added to the record since the October 2009 rating decision includes, in pertinent part, private medical records dating from January 2010, which reflect a diagnosis of diabetes mellitus type II. This evidence is new since it was not of record in 2009, and material as it relates to an unestablished fact necessary to substantiate the claim for service connection for diabetes mellitus type II; namely, an indication that the Veteran does have diabetes mellitus type II; and it must be presumed credible for the purpose of reopening the claim. Justus, 3 Vet. App. at 512-13. New and material evidence having been presented, the claim is reopened. 38 C.F.R. § 3.156(a); see also Shade. I. Service Connection The Veteran asserts that presumptive service connection is warranted for diabetes mellitus type II because he served in country in Vietnam and thus is presumed exposed to herbicides while serving in Vietnam. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The law also provides that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If the disorder is a chronic disease, service connection may be granted if it becomes manifest to a degree of 10 percent within the presumptive period; the presumptive period for diabetes mellitus is one year. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). In addition, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to herbicides during that service. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(e). If a veteran was exposed to an herbicide agent during active military, naval, or air service, presumptive service connection for numerous diseases, including diabetes mellitus type II, will be established even though there is no record of such disease during service, provided that the disease is are manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). In determining whether service connection is warranted for a disability, 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). Service treatment records contain no evidence of diabetes, and there is no evidence of diabetes in the year following service, so service connection under the provisions of 38 C.F.R. § 3.303(a) and 3.30(a) is not warranted. However, service personnel records confirm that this veteran served in Vietnam during the Vietnam war. The inquiry therefore shifts to whether he has a disease for which presumptive service connection is available; in this case diabetes mellitus type II. 39 C.F.R. §§ 3.307, 3.309(e). In a letter dated August 15, 2011, a private treating physician advised that the Veteran's Hemoglobin A1c (HbA1C) was 8.5 percent on July 22, 2011; and in a letter dated in February 2013 he wrote that the Veteran's HbA1C was 8.5 percent. He added that this was up from 7.2 percent on January 11, 2013, and that the Veteran had been started on 2.5 mg of Glucotrol XL, each day. This evidence reflects a confirmed diagnosis of diabetes mellitus type II. Thus, this Vietnam war veteran has been diagnosed as having a disease, namely, diabetes mellitus type II, for which presumptive service connection is available. 38 C.F.R. §§ 3.307, 3.309(e). The only issue remaining is whether the Veteran's diabetes mellitus type II is manifest to a compensable degree. Under Diagnostic Code 7913 a minimum 10 percent rating is warranted where diabetes mellitus is manageable by restricted diet only. Private medical records show that the Veteran has been on a restricted diet since August 2011. Thus, under the criteria contained in Diagnostic Code 7913, the Veteran's diabetes mellitus is compensably disabling. As such, service connection for diabetes mellitus type II is warranted. ORDER New and material evidence having been submitted, the Veteran's claim for service connection for diabetes mellitus type II is reopened. Service connection for diabetes mellitus type II is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs