Citation Nr: 1333820 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 10-10 751 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran had active military service from July 1967 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, in which the RO denied the Veteran's petition to reopen a previously denied claim of service connection for diabetes mellitus, finding that no new and material evidence had been submitted. The Board subsequently remanded the case in January 2012 for further evidentiary development and adjudication. In the remand, the Board instructed the agency of original jurisdiction (AOJ) to seek records of the Veteran's award of benefits from the Social Security Administration (SSA) and alternate sources of information concerning his alleged exposure to herbicides while stationed in Okinawa, Japan, and then re-adjudicate the application to reopen. The AOJ contacted the SSA, which responded that the Veteran's records had been destroyed and were unavailable. The AOJ notified the Veteran of this fact in January 2013. The AOJ also conducted the requested searches, contacting the Navy Environmental Health Center, the Archives and Special Collections of the Library of the Marine Corps, the Air Force Historical Research Agency, and the National Archives. The Veteran was then provided a supplemental statement of the case (SSOC) in January 2013, in which the AOJ again denied the Veteran's petition to reopen the previously denied claim. Thus, there has been compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Board must address the question of whether new and material evidence has been received to reopen the Veteran's claim for service connection. This is so because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). In other words, the Board is required to first consider whether new and material evidence is presented before the merits of a claim can be considered. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in July 2011. A transcript of the hearing has been associated with the Veteran's claims file. FINDINGS OF FACT 1. By an October 2006 rating decision, the RO denied the Veteran's claim for service connection for diabetes mellitus. The Veteran did not file an appeal. 2. Evidence received since the RO's October 2006 rating decision is either cumulative or redundant of evidence previously considered; by itself or when considered with previous evidence it does not relate to an unestablished fact necessary to substantiate the claim of service connection for diabetes mellitus and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. An October 2006 rating decision by the RO that denied the Veteran's claim for service connection for diabetes mellitus is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2013). 2. Evidence relating to the Veteran's claim of service connection for diabetes mellitus received since the RO's October 2006 rating decision is not new and material, and the claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2013). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Here, the Board finds that all notification and development action needed to render a decision on the claim on appeal has been accomplished. In this respect, through a July 2008 notice letter, the RO notified the Veteran of the legal criteria governing his claim and the evidence needed to support it. Thereafter, the Veteran was afforded the opportunity to respond. Hence, the Board finds that the Veteran has received notice of the information and evidence needed to substantiate his claim and has been afforded ample opportunity to submit such information and evidence. The Board also finds that the July 2008 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letter, the RO notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. It also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. 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. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA specifically ask the claimant to provide any pertinent evidence in his possession). These requirements were met by the aforementioned July 2008 letter. The Veteran was further provided notice concerning the criteria for assigning disability ratings or effective dates pursuant to Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007) via the July 2008 letter. These questions are thus not now before the Board. The Board thus finds that "the appellant [was] provided the content-complying notice to which he [was] entitled." Pelegrini, 18 Vet. App. at 122. Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the notice requirements of the VCAA. The Board further points out that the VCAA expressly provides that nothing in the Act "shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in section 5108 of this title." 38 U.S.C.A. § 5103A(f) (West 2002). That notwithstanding, the Board finds that all notification and development action needed to arrive at a decision as to the application to reopen has been accomplished. Specifically, with regard to the claim to reopen, the AOJ informed the Veteran of the requirements as set forth in 38 C.F.R. § 3.156(a) by the July 2008 notice letter. The notice letter provided the regulatory definition of "new and material" evidence. The Veteran was also told of the evidence and information necessary to establishing the underlying claim of entitlement to service connection. Specifically regarding VA's duty to notify, the Board finds that the July 2008 notice letter to the Veteran apprised him of what the evidence must show to establish entitlement to the benefits sought, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The July 2008 notice letter also notified the Veteran that, to be considered material, evidence he supplied must pertain to the reason his claim for service connection for diabetes mellitus was previously denied. Further, the July 2008 letter provided the Veteran specific notice of the elements of service connection that were the basis for the prior denial of his claim for service connection for diabetes mellitus. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Board thus concludes that "the appellant [was] provided the content-complying notice to which he [was] entitled." Pelegrini v. Principi, 18 Vet. App. 112 (2004). Consequently, the Board does not find that the VCAA requires remand to the RO. Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the requirements of the VCAA. The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim on appeal. The Veteran's service treatment and personnel records have been associated with the claims file, as have records from post-service treatment from both private and VA treatment providers. He has not otherwise alleged that there are any outstanding medical records probative of the claim that need to be obtained. Further, although the Veteran's claim for service connection for diabetes mellitus was not reopened by the RO and will not be reopened by the Board, reasonable efforts to assist the Veteran in this claim have been undertaken. Although a VA examination was not provided in connection with the claim, the Board notes that the duty to provide an examination does not apply to a claim to reopen a finally adjudicated claim without the receipt of new and material evidence. 38 C.F.R. § 3.159(c)(4)(iii). As discussed in detail in the analysis section, the Veteran's claim for service connection for diabetes mellitus has not been reopened; thus, an examination is not required. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. II. Analysis Under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Regarding petitions to reopen filed on or after August 29, 2001, Title 38 Code of Federal Regulations, Section 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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 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) (2013). In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is, in fact, new. This analysis is undertaken by comparing newly received evidence with the evidence previously of record. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Here, as indicated above, the last final denial pertinent to the Veteran's claim was the October 2006 decision. Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The Veteran contends that he was exposed to herbicides while serving in Okinawa, Japan, during his active military service that he believes caused diabetes mellitus. Service personnel records confirm that the Veteran was stationed at Kadena Air Force Base in Okinawa, Japan, from February 1968 to March 1969, and current medical records confirm a diagnosis of diabetes mellitus. (The evidence does not suggest, and the Veteran does not contend, that he served in Vietnam at any point during active duty.) In an October 2006 rating decision, the RO denied the Veteran's claim of service connection for diabetes mellitus, including as due to herbicide exposure. As the Veteran did not appeal that decision, it became final based on the evidence then of record. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Thereafter, in July 2008, the Veteran sought to reopen his claim of service connection for diabetes mellitus. Evidence of record in 2006 concerning the Veteran's claimed diabetes mellitus included multiple post-service treatment records showing that the Veteran carried a diagnosis of diabetes mellitus as early as April 2006. Also of record were contentions from the Veteran and his representative concerning the Veteran's belief that he was exposed to herbicides while stationed in Okinawa during 1968 and 1969. In addition, evidence of record in 2006 consisted of correspondence from the National Personnel Records Center, which sent a letter in April 2006 stating that there were no records of the Veteran's exposure to herbicides while on active duty. Evidence added to the record since the RO's October 2006 rating decision includes multiple statements from the Veteran concerning his belief that he was exposed to herbicides at Okinawa. Also added to the record since the 2006 denial are records of correspondence between the AOJ and various record repositories concerning the Veteran's claimed herbicide exposure in Okinawa. In his statements, the Veteran contends that he believes he was exposed to herbicides in Okinawa, although he stated at his July 2011 hearing before the undersigned Veterans Law Judge that he never handled or witnessed any herbicides being used and had no direct knowledge of any herbicides being used; rather, he stated only that he heard "sort of like a rumor" that dioxin-containing herbicides may have been used at his base. Further, the Veteran submitted an article from the Marine Corps Times that discusses a Board case from 1998 in which a Veteran was awarded service connection for prostate cancer due to exposure to herbicides in Okinawa. In addition, and pursuant to the Veteran's Benefits Administration Manual (M21-1 MR), which provides a procedure for verifying exposure to herbicides in locations other that the Republic of Vietnam or along the demilitarized zone in Korea, the RO contacted the C&P service to inquire as to the Veteran's claimed exposure to herbicides in Okinawa. The C&P service responded in December 2008 that it could not provide any evidence to support the Veteran's claim of herbicide exposure at Kadena Air Force Base. Following receipt of this response, and pursuant to the requirements of the M21-1 MR, the RO further contacted the JSRRC, which responded in August 2009 that there was no documentation of any use of herbicides in Okinawa during the period in question. The JSRRC recommended that further research be done by contacting the Reference Branch of the Marine Corps History Division in Quantico, Virginia. Upon further inquiry, the JSRRC again provided a letter in February 2010 in which it indicated that the Department of Defense's inventory of herbicide operations showed no herbicide usage in Okinawa during the time the Veteran was stationed at Kadena Air Force Base. Following the Veteran's direct inquiry with JSRRC, that agency provided another letter in May 2011 in which it reiterated its finding that "there is no information indicating the presence of Agent Orange in Okinawa, including Kadena Air Force Base." However, the letter suggested that the Veteran contact the Navy Environmental Health Center in Norfolk, Virginia, for Naval records, and the Gray Research Center in Quantico, Virginia, for Marine Corps unit records. Pursuant to the Board's January 2012 remand, the AOJ contacted the identified organizations. In April 2012, the Navy Environmental Health Center responded that no such records were available and that tracking of herbicides did not exist until the 1970s, after the Veteran had left Okinawa. Additionally, in an April 2012 letter, the Gray Research Center responded that no such records were available at that agency but recommended that the AOJ contact the Air Force Historical Research Agency for further assistance. That agency similarly responded in April 2012 that there was "no mention of any tactical herbicide use" for the Veteran's service dates in Okinawa. The Archives and Special Collections of the Library of the Marine Corps provided a similar response in August 2012, directing the AOJ to the National Archives, who responded in October 2012 that no records supported a finding that herbicides were stored or used at Okinawa while the Veteran was stationed there. The National Archives specifically concluded that there are "no additional records that can be searched on [the Veteran's] behalf." After a review of the evidence mentioned above, the Board finds that new and material evidence relating to the Veteran's claim for service connection for diabetes mellitus has not been received, and the claim may not be reopened. The evidence is new in that it was not previously before agency decision makers. However, none of this evidence is material for purposes of reopening the service connection claim. Essentially, the new evidence does not suggest in a manner not previously shown that the Veteran was exposed to herbicides while stationed in Okinawa from 1968 to 1969. Further, the new evidence does not suggest that the Veteran's diabetes mellitus is otherwise traceable to service. As noted above, the evidence previously of record did not establish that the Veteran was exposed to herbicides while on active duty. Evidence received since the October 2006 denial includes multiple statements from many different organizations concerning his claim of herbicide exposure. However, this information does not tend to prove the Veteran's claim in a manner different from what was already shown in October 2006. To the contrary, each organization with knowledge of herbicide use has found that there is no evidence to support the Veteran's contention that he was exposed to herbicides in Okinawa while stationed there. Further, the Veteran himself stated, at his July 2011 hearing, that he never touched, saw, or used any herbicides while in Okinawa; he only heard "sort of like a rumor" that herbicides may have been used to clear brush at his base at some point. The fact remains that the Veteran has not established that he was exposed to herbicides while stationed in Okinawa. Evidence submitted following the prior denial of the Veteran's claim tends to reflect that, contrary to the "rumor" he alleges to have heard, he was not exposed to herbicides in Okinawa. No record of such use of herbicides exists, and the Veteran has not contended that he personally witnessed, handled, or was otherwise made aware of any use of herbicides in Okinawa during his time there. Consequently, the Board finds that the new evidence differs from what was previously of record, but substantively shows the same thing. In other words, with respect to what is required to show a relationship to military service, it is cumulative of what was previously known. Further, with regard to the Marine Corps Times article discussing a 1998 Board decision awarding benefits based on herbicide exposure in Okinawa, although the Board strives for consistency in issuing its decisions, previously issued decisions will be considered binding only with regard to the specific case decided. Prior decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of the appellate procedures and substantive law. 38 C.F.R. § 20.1303 (2013). In this case, the Board does not find that the conclusions drawn in an entirely unrelated matter, in which a claimant was found likely to have been exposed to herbicides in Okinawa based on multiple eyewitnesses' testimony as well as the Veteran's contention that he himself saw herbicides being used, are applicable to this case, in which the Veteran neither handled nor even saw herbicides while stationed in Okinawa. Therefore, although the Board has considered the report of the other decision, the findings of the Board in an unrelated case concerning a different claimant are not binding and do not control the outcome of this appeal; rather, the facts of this particular case must be the determining factor. The Board thus concludes that the evidence received since the October 2006 rating decision is not new and material. As noted in 38 C.F.R. § 3.156(a), 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 this case, the evidence added to the record since the prior denial does not provide any new evidence indicating that the Veteran was exposed to herbicides while stationed in Okinawa while on active duty or that he currently suffers from diabetes mellitus that is related to his service. Thus, none of the evidence raises a reasonable possibility of substantiating the Veteran's claim of service connection. The Board has also considered the assertions and testimony of the Veteran and his representative that were made in support of his claim. However, although the Veteran asserts that he has diabetes mellitus that can be attributed to service and, in particular, to his claimed in-service exposure to herbicides in Okinawa, these were his contentions previously, and, as discussed in detail above, the record does not tend to prove that he was in fact exposed to herbicides while stationed in Okinawa on active duty. As such, his statements do not amount to new and material evidence. As noted in 38 C.F.R. § 3.156(a), 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. Under the circumstances described above, the Board concludes that new and material evidence relating to the Veteran's claim for service connection for diabetes mellitus has not been received; hence, the requirements to reopen the claim for service connection for diabetes mellitus have not been met, and the appeal must be denied. (As new and material evidence to reopen the finally disallowed claim has not been received, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993).) ORDER The application to reopen a claim of entitlement to service connection for diabetes mellitus is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs