Citation Nr: 1333931 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-37 231 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been presented to reopen the claim of service connection for non-Hodgkin's lymphoma. 2. Entitlement to service connection for diabetes mellitus, type 2. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Castillo, Associate Counsel INTRODUCTION The Veteran, who is the Appellant, served on active duty from June 1971 to June 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in July 2008 of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2011, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's file. FINDINGS OF FACT 1. In a rating decision in January 2002, the RO denied the application to reopen the claim of service connection for non-Hodgkin's lymphoma; after the Veteran was notified of the adverse determination and of his procedural and appellate rights, he filed a notice of disagreement, initiating an appeal to the Board, but he did not perfect the appeal because he did not timely file a substantive appeal, following the issuance of the statement of the case; and no new and material evidence pertinent to the claim was received by VA within one year from the date that the RO mailed notice of the adverse determination to the Veteran; the rating decision became final by operation of law on the evidence of record. 2. The additional evidence presented since the final rating decision by the RO in January 2002 does not relate to an unestablished fact necessary to substantiate the claim of service connection for non-Hodgkin's lymphoma. 3. Diabetes mellitus, type 2, was not affirmatively shown to have been present during service; diabetes mellitus, type 2, was not manifested to a compensable degree within one year from the date of separation from service in June 1974; and diabetes mellitus, type 2, first diagnosed after service beyond the one-year presumptive period for a chronic disease, is unrelated to an injury, disease, or event in service. CONCLUSIONS OF LAW 1. The criteria for reopening the previously denied claim of service connection for non-Hodgkin's lymphoma have not been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 2. The criteria for service connection for diabetes mellitus, type 2, are not met. 38 U.S.C.A. §§ 1110, 1116, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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. See Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In a claim to reopen, the VCAA notice requires information regarding the evidence and information necessary to reopen a claim and the evidence and information necessary to establish the underlying claim for the benefit sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). On the claim to reopen service connection for non-Hodgkin's lymphoma and the claim of service connection for diabetes mellitus, type 2, the RO provided the Veteran pre-adjudication VCAA notice by letter in December 2007. The Veteran was notified that new and material evidence was needed to reopen the claim of service connection, that is, evidence not previously considered, which was not redundant or cumulative of evidence previously considered and that pertained to the reason the claim was previously denied. The Veteran was notified of the type of evidence needed to substantiate the underlying claim of service connection, which also is the type evidence needed to substantiate the claim of service connection for diabetes mellitus, type 2, namely, evidence of current disability, evidence of an injury or disease in service or an event in service, causing injury or disease, and evidence of a relationship between the current disability and the injury, disease, or event in service. The Veteran was notified that VA would obtain service records, VA records, and records of other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any such records on his behalf. The notice included the general provisions for the effective date of a claim and the degree of disability assignable. As for content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (pre-adjudication VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the elements of the claim); and of Kent v. Nicholson, 20 Vet. App. 1 (2006) (notice of the elements of a new and material evidence claim). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained the service treatment records, VA records, and private medical records. On the application to reopen a claim of service connection for non-Hodgkin's lymphoma, under the duty to assist, a VA medical examination or medical opinion is not authorized unless new and material evidence is presented. 38 C.F.R. § 3.159(c)(4)(iii). As the claim is not reopened, a VA medical examination or medical opinion is warranted under the duty to assist. On the claim of service connection for diabetes mellitus, type 2, VA must provide a VA medical examination or obtain a medical opinion if the evidence of record is insufficient to decide the claim. While there is evidence of a current disability, the evidence does not indicate that the claimed disability may be associated with an established event, injury, or disease in service. For this reason, a VA medical examination or medical opinion is not necessary to decide the claim. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As the Veteran has not identified any additional evidence pertinent to the claims and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Non-Hodgkin's Lymphoma Procedural History and Evidence Previously Considered In a rating decision in March 1996, the RO denied the original claim of service connection for non-Hodgkin's lymphoma, because the disability was not incurred in service. After the Veteran was notified of the adverse determination and of his procedural and appellate rights, he did not appeal the rating decision and no new and material evidence pertinent to the claim was received by VA within one year from the date that the RO mailed notice of the adverse determination to the Veteran. The rating decision became final by operation of law on the evidence of record. 38 C.F.R. § 3.104(a). In May 1996, the RO provided the Veteran copies of his service treatment records. The evidence of record at the time of the rating decision in March 1996 consisted of the service treatment records, private medical records, and VA records. The service treatment records show that the Veteran was stationed in Germany for over two years from November 1971 to January 1974. The service treatments records contain no evidence of non-Hodgkin's lymphoma. After service, private medical records show that in February 1993 a biopsy of a left groin lymph node was characteristic of Hodgkin's disease. On VA examination in September 1995, the diagnoses included non-Hodgkin's lymphoma, 1993. The Veteran did not serve in Vietnam. In April 2001, the Veteran applied to reopen the claim of service connection for non-Hodgkin's lymphoma. In a rating decision in January 2002, the RO denied the application to reopen the claim of service connection for non-Hodgkin's lymphoma, because the evidence was not new and material. After the Veteran was notified of the adverse determination and of his procedural and appellate rights, he filed a notice of disagreement, initiating an appeal to the Board, but he did not perfect the appeal because he did not timely file a substantive appeal, following the issuance of the statement of the case. And no new and material evidence pertinent to the claim was received by VA within one year from the date that the RO mailed notice of the adverse determination to the Veteran. The Veteran did not appeal the determination that the substantive appeal was untimely. The rating decision in January 2002 became final by operation of law on the evidence of record. 38 C.F.R. § 3.104(a). The additional, relevant evidence of record at the time of the rating decision in January 2002 consisted of Army Reserve records, private medical records, and the Veteran's statements. The service treatment records of the Army Reserve from 1977 to 1980 contain no evidence of non-Hodgkin's lymphoma. Private medical records show that in January 1993 the Veteran presented with enlargement of a left groin lymph node, which was found on a routine examination. In February 1993 the lymph node was excised. The pathological diagnosis was non-Hodgkin's lymphoma. In statements in April 2001 and in December 2001, the Veteran stated that in Germany his unit guarded bunkers at a place called the "Site" and that non-Hodgkin's lymphoma diagnosed in 1993 was caused by proximity to the "Site." Current Claim to Reopen A previously denied claim of service connection may be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. In September 2007, the Veteran filed the current claim to reopen. As the Veteran's claim was received after the regulatory definition of new and material was amended in August 2001, the current the current regulatory definition of new and material evidence applies. 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). Whether or not the RO reopened a claim is not dispositive, as it is the Board's jurisdictional responsibility to consider whether it is proper for a claim to be reopened. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The RO denied service connection for non-Hodgkin's lymphoma because the disability was not incurred in service. The additional evidence presented since the rating decision in January 2002 consists of the Veteran's lay statements and testimony. In statements in November 2004, in September 2008, and October 2008, the Veteran asserted that near Bamberg, Germany, he guarded an ammunition storage area, called the "Site," which he was not allowed to enter and he was not told what was contained at the site, but he asserts that the storage area contained Agent Orange and other hazardous chemicals, and that exposure to Agent Orange caused non-Hodgkin's lymphoma, which is a disease subject to presumptive service connection. In November 2011, the Veteran testified that he was not sure whether Agent Orange was stored at the "Site," and he was not told that it was, but the area was off limits and he was not allowed to enter the area, which lead him to believe that Agent Orange was stored there. Analysis For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 511, 513 (1992). The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). Competency is a legal concept in determining whether evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility, that is, the probative value of the evidence once the evidence is admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (distinguishing competency and credibility of evidence). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Competent lay evidence means not requiring that the proponent have specialized education, training, or experience, lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159; see Layno v. Brown, 6 Vet. App. 465, 469-71(1994) (Lay testimony is competent as to matters within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses.). The additional evidence consists for the Veteran's statements and testimony. The Veteran asserts that he was exposed to Agent Orange contained at an ammunition storage site in Germany. The basis for the Veteran's assertion is that the site was off limits. The Veteran has stated that he was not told that Agent Orange was stored there and that he had not personal knowledge that Agent Orange was in fact stored at the site. As the Veteran has no personal knowledge that Agent Orange was stored at the site, his statements and testimony as evidentiary assertions are beyond the Veteran's competence, which rebuts the presumption of the truefulness or credibility of his statement that he was exposed to Agent Orange for the purpose of reopening the claim. And the Veteran's statements and testimony are not and material evidence. As the additional evidence is not new and material, the claim of service connection is not reopened, and the benefit-of-the-doubt standard of proof does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Diabetes Mellitus, Type 2 Principles and Theories of Service Connection A Veteran is entitled to VA disability compensation, that is, service connection, for disability resulting from personal injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. § 1110 (wartime). Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). In this case, several legal theories operate in conjunction with 38 U.S.C.A. § 1110 as implemented in 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). The showing of a chronic disease in service requires a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also 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). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for specifically listed chronic diseases, including diabetes mellitus, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to herbicide agents, including an herbicide commonly referred to as Agent Orange. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. §§ 3.307, 3.309. If a Veteran was exposed to an herbicide agent during active military service, certain diseases, including diabetes mellitus, type 2, will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). As the Veteran did not serve in combat, the combat provision of 38 U.S.C.A. § 1154(b) does not apply. Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact (i.e. admissible); while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker, at 74. Competency is a question of fact, which is to be addressed by the Board. Jandreau, 492 F.3d at 1377. When the evidence is admissible, the Board must then determine whether the evidence is credible. Credible evidence is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, whether the evidence tends to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, it has no probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Facts The Veteran did not serve in the Republic of Vietnam. The service treatment records, including the reports of entrance and separations examinations, as well as records of the Army Reserve, contain no complaint, finding, history, treatment, or diagnosis of diabetes mellitus. After service, VA records show that diabetes mellitus, type 2, was diagnosed in June 2007. In June 2010, the Department of Defense reported that Bamberg, Germany, was not on the list of locations outside of Vietnam where Agent Orange was sprayed, tested, transported, stored, or used, and that US Army historical records showed that Agent Orange was not stored in Bamberg, Germany from November 1971 to December 1971. Analysis The Veteran's assertions about exposure to Agent Orange is addressed following the analysis of the claim under the other theories of service connection. Theories of Service Connection other than by Exposure to Agent Orange On the basis of the service treatment records alone, in the absence of evidence by complaint, finding, history, or diagnosis, diabetes mellitus, type 2 (hereinafter also referred to as diabetes), was not affirmatively shown to have had onset during service. For this reason, service connection for diabetes under the theory of affirmatively showing inception in service is not warranted. 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a) (affirmatively showing inception in service). Although diabetes is listed as a chronic disease under 38 C.F.R. § 3.309, as the Veteran does not assert and as neither the lay nor medical evidence contemporaneous with or after service establishes that diabetes was noted, that is, observed, during service, the principles and theories of service connection pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply and service connection under the theories of chronicity and continuity of symptomatology is not warranted. See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (continuity of symptomatology requires that the condition was "noted" during service). Although service connection for diabetes is not warranted under either 38 C.F.R. § 3.303(a) (affirmatively showing inception in service) or 38 C.F.R. § 3.303(b) (chronicity or by continuity of symptomatology), service connection may still be established based on an initial diagnosis after service, when all of the evidence, including that pertinent to service, shows that a disability was incurred in service. 38 C.F.R. § 3.303(d). As a layperson, the Veteran is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). And the Veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Competent lay evidence means evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.3159; see Layno v. Brown, 6 Vet. App. 465, 469 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). Competency is a question of fact, which is to be addressed by the Board. See Jandreau, at 1376-77. Although the Veteran is competent to describe symptoms of diabetes, the presence or diagnosis of diabetes is not capable of lay observation as the diagnosis of falls outside the realm of common knowledge of a lay person without specialized education, training, or experience. 38 C.F.R. § 3.159. Also diabetes is not the type of condition under case law that has been found to be capable of lay observation. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfeet are capable of lay observation); see McCartt v. West, 12 Vet. App. 164, 167 (1999) (a skin condition is capable of lay observation; see Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus is capable of lay observation); see Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); see Jandreau, at 1377, n. 4 (a lay witness is capable of diagnosing a dislocated shoulder or a simple medical condition, for example a broken leg, but not, for example, a form of cancer). Applying the guidance of current case law, diabetes is analogous to an internal disease process, such as rheumatic fever, rather than either flatfeet, a skin condition, tinnitus, varicose veins, a dislocated shoulder, or a broken leg. As diabetes is not capable of lay observation under Jandreau or by case law, diabetes is not a simple medical condition that the Veteran as a lay person can identify. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to identify the presence or diagnosis of diabetes. Whereas here diabetes is not a simple medication, to the extent the Veteran's lay statements are offered as proof of the presence diabetes in service or since service or before June 2007, the Veteran's lay statements are not competent evidence, and the statements are not admissible as evidence, that is, the Veteran's lay statements are not to be considered as competent evidence favorable to the claim. As for the Veteran describing a contemporaneous medical diagnosis, there is no competent medical evidence of a diagnosis of diabetes until 2007, more than 30 years after separation from service and well beyond the one year period after service in 1974 for presumptive service connection for diabetes as a chronic disease and presumptive service connection under 38 U.S.C.A. § 1112 and 38 C.F.R. §§ 3.307 and 3.309 is not warranted. As for symptoms that later support a diagnosis by a medical professional, the Veteran has not submitted any medical evidence that associates diabetes to a disease, injury, or event in service. As for the Veteran associating diabetes with service, as previously explained the Veteran as a lay person is not competent to identify diabetes mellitus based on personal observation, any inference based on what is not personally observable cannot be competent lay evidence. And it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the relationship between the current diabetes and a disease, injury, or event in service. Agent Orange The Veteran's primary argument is that diabetes was caused by exposure to Agent Orange at the "Site" in Bamberg, Germany, where he guarded an ammunition storage area that he asserts contained Agent Orange and other hazardous chemicals. The Veteran has acknowledged that he was not sure whether Agent Orange was stored at the "Site," and he was not told that it was, but as the area was off limits he believed that Agent Orange was stored there. As the Veteran has no personal knowledge that Agent Orange was in fact stored at the site, the Veteran's assertion is not competent evidence. See Layno, at 469 (lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). Moreover, the Department of Defense reported that Bamberg, Germany, was not on the list of locations outside of Vietnam where Agent Orange was sprayed, tested, transported, stored, or used, and that US Army historical records showed that Agent Orange was not stored in Bamberg, Germany from November to December 1971. While the report of the Department of Defense referred only to the initial two months the Veteran was in Germany, the Board finds that the report of Department of Defense that Bamberg, Germany was not on the list of locations outside of Vietnam where Agent Orange means that Agent Orange was not in Germany at any time. In the absence of competent and credible evidence that the Veteran was exposed to Agent Orange, presumptive service connection for diabetes mellitus due to exposure to Agent Orange is not warranted. 38 U.S.C.A. § 1116. Summary The record does not contain competent evidence, lay or medical, that links diabetes to an injury, disease, or event during service. And in the absence of medical evidence suggesting such an association, but is too equivocal or lacking in specificity to support a decision on the merits, and in the absence of competent and credible evidence of continuity of symptomatology, there is no possible association with service, and VA is not required to further develop the claim by affording the Veteran a VA examination or by obtaining a VA medical opinion under the duty to assist. 38 U.S.C.A. § 5103A (d)(2); 38 U.S.C.A. §38 C.F.R. § 3.159 (c)(iv); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As the preponderance of the evidence is against the claim of service connection for diabetes, there is no reasonable doubt to be resolved and service connection for diabetes mellitus, type 2, is not warranted. ORDER As new and material evidence has not been presented, the claim of service connection for non-Hodgkin's lymphoma is not reopened and the appeal is denied. Service connection for diabetes mellitus, type 2, is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs