Citation Nr: 1509649	
Decision Date: 03/09/15    Archive Date: 03/17/15

DOCKET NO.  10-22 757	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Jackson, Mississippi


THE ISSUE

Whether new and material evidence has been submitted to reopen a claim for service connection for diabetes mellitus; and if so, whether the criteria for service connection are met.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Mary C. Suffoletta, Counsel 



INTRODUCTION

The appellant served on active duty, pursuant to 10 U.S.C.A. § 12302, from August 13, 2004, to October 5, 2004; and had periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the Mississippi Army National Guard from February 1978 to September 1981, and from December 2001 to February 2005-including a period of ACDUTRA from May 1978 to October 1978.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an July 2009 decision of the RO that declined to reopen a claim for service connection for diabetes mellitus on the basis that new and material evidence had not been received.  The appellant timely appealed.

The appellant failed to appear for a videoconference hearing before a Veterans Law Judge at the RO that was scheduled for August 30, 2011.

Lastly, in addition to reviewing the appellant's paper claims file, the Board has surveyed the contents of his electronic claims file.

The reopened claim of service connection for diabetes mellitus is addressed in the REMAND portion of the decision below, and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  In April 2008, the RO denied the appellant's claim for service connection for diabetes mellitus.  The appellant did not appeal within one year of being notified.

2.  Evidence associated with the claims file since the April 2008 denial, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim for service connection for diabetes mellitus; and raises a reasonable possibility of substantiating the claim.

CONCLUSION OF LAW

The evidence received since the RO's April 2008 denial is new and material; and the claim for service connection for diabetes mellitus is reopened.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

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, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014).  

In view of the Board's favorable decision in this appeal for reopening the claim for service connection for diabetes mellitus, further assistance is unnecessary to aid the appellant in substantiating the claim.  

II.  Petition to Reopen

The RO originally denied service connection for diabetes mellitus in April 2008 on the basis that the appellant's diabetes mellitus pre-existed active service in August 2004, and there was no evidence showing that the condition was made worse by active service.

The evidence of record at the time of the last denial of the claim in April 2008 included the appellant's National Guard records; his service treatment records; his Form DD214's showing one period of ACDUTRA and one period of active duty pursuant to 10 U.S.C. § 12302; and VA treatment records showing treatment for diabetes mellitus in 2007.  

Records reveal that the appellant's National Guard unit was mobilized in August 2004 for deployment to Iraq.

Service treatment records show that, during a pre-deployment screening, blood tests revealed near normal glycaemia.  The appellant was found non-deployable due to pre-existing diabetes mellitus.  Records show that he was released from active duty and reassigned to his home station in October 2004, and that subsequently he was found not medically fit for retention in the National Guard and was discharged in February 2005.

Based on this evidence, the RO concluded in April 2008 that there was no evidence showing that the appellant's pre-existing diabetes mellitus was permanently worsened as a result of active service.  The appellant was informed of the RO's denial in April 2008, and he did not appeal.  Moreover, no new and material evidence was submitted within one year of the prior denial, pursuant to 38 C.F.R. § 3.156(b).

The present claim was initiated by the appellant in June 2009.  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 appellant.  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).  

Under 38 C.F.R. § 3.156(a), "new evidence" is existing evidence not previously submitted; "material evidence" is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  Furthermore, new and material evidence is "neither cumulative nor redundant" of evidence of record at the time of the last prior final denial, and must "raise a reasonable possibility of substantiating the claim."  38 C.F.R. § 3.156(a).

New evidence will be presumed credible solely for the purpose of determining whether the claim has been reopened.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

Evidence added to the record since April 2008 includes additional National Guard records showing primarily dates of enlistment; private records showing the appellant's treatment with diet and medications for diabetes mellitus in 2009; and statements by the appellant.

In June 2009, the appellant stated that he was first diagnosed with diabetes mellitus at Camp Shelby in Hattiesburg prior to his unit's deployment to Iraq, and that he was prescribed a certain diet at the time.  He also explained that he was treated for diabetes mellitus while serving in active service, and that he had not been diagnosed with diabetes mellitus prior to his active service.   
  
Much of this evidence, except for a few duplicate National Guard documents, is new; it was not previously of record and is not cumulative. 

The newly submitted evidence is also relevant, and relates to an unestablished fact necessary to substantiate the claim-i.e., that he was first prescribed a diet in service which indicates increased severity of the appellant's diabetes mellitus.  Moreover, the appellant is competent to offer statements of first-hand knowledge of his in-service and post-service experiences.  Given the presumed credibility, the additional evidence raises a reasonable possibility of substantiating the claim for service connection.

Hence, the appellant's application to reopen a claim for service connection for diabetes mellitus must be granted.  38 U.S.C.A. § 5108.


ORDER

New and material evidence has been submitted to reopen the claim for service connection for diabetes mellitus. 


REMAND

At the outset, the Board notes that the appellant's Form DD214 shows that he was ordered to active duty under the provisions of 10 U.S.C.A. § 12302 from August 13, 2004, to October 5, 2004.  Thus, because he was ordered into Federal service by the President, he was serving on active duty during this period of time and is therefore potentially eligible for VA benefits based on a disability resulting from disease or injury incurred in or aggravated by active service.  Moreover, the presumption of soundness attaches.  38 U.S.C.A. § 1111.
 
However, the Board notes that the record does not show that the appellant had continuous active service for a period of 90 days.  In this case, he is not entitled to the presumptions relating to certain chronic diseases, to include diabetes mellitus.  See 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309.

The Veteran contends that his diabetes mellitus had its onset in active service, or is the result of aggravation of a pre-existing disease or disability in active service.  

Here, diabetes mellitus, pre-existing, was noted on a pre-deployment health assessment during active service in September 2004.  As noted above, the appellant was found non-deployable and released from active service in October 2004.

Post-service records show treatment with diet and medications for diabetes mellitus in 2007 and in 2009.

Under these circumstances, the Board finds that an informed medical opinion is necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4) (2014).

Accordingly, the case is REMANDED for the following action:

1.  Obtain the appellant's outstanding VA treatment records dated from January 2008; and associate them with the appellant's claims file (physical or electronic).

2.   Afford the appellant a VA examination to identify all current disability underlying the appellant's current complaints of diabetes mellitus, and the likely etiology of the disease.  The examiner is requested to address:

(a)  Whether it is clear and unmistakable (obvious, manifest, and undebatable) that diabetes mellitus pre-existed active service in August 2004; 

(b)  If so, whether it is clear and unmistakable (obvious, manifest, and undebatable) that any preexisting diabetes mellitus WAS NOT aggravated (i.e., permanently worsened) during active service from August 2004 to October 2004; or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to the natural progress).

(c)  If a response to (a) or (b) is negative, please opine whether it is at least as likely as not (50 percent probability or more) that any currently diagnosed diabetes mellitus either had its onset during active service, or is the result of disease or injury incurred during active service.    

The appellant's claims file must be available to the examiner designated to examine the appellant, and the examination report should note review of the file.

A complete explanation should be provided for each opinion.  

3.  After ensuring that the requested actions are completed, the RO or VA's Appeals Management Center (AMC) should re-adjudicate the claim on appeal.  If the benefits sought are not fully granted, the RO or AMC must furnish a SSOC, before the claims file is returned to the Board, if otherwise in order.

No action is required of the appellant and his representative until they are notified by the RO or AMC; however, the appellant is advised that failure to report for any scheduled examination may result in the denial of his claim.  38 C.F.R. § 3.655 (2014).  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 2014).




______________________________________________
S. S. TOTH 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs