Citation Nr: 1600170 Decision Date: 01/05/16 Archive Date: 01/12/16 DOCKET NO. 14-03 410 ) DATE ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for diabetes mellitus type II, to include as due to herbicide exposure. 2. Entitlement to service connection for diabetes mellitus type II, to include as due to herbicide exposure. 3. Entitlement to service connection for ischemic heart disease, to include as due to herbicide exposure. REPRESENTATION Veteran represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD K.C. Spragins, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from October 1966 to October 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in September 2011 and January 2013 from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In addition to declining to reopen the Veteran's service connection claim for diabetes mellitus type II, the January 2013 rating decision declined to reopen his service connection claim for posttraumatic stress disorder (PTSD). The Veteran filed a timely notice of disagreement for both issues in January 2014. In a June 2015 rating decision, the RO reopened the issue of entitlement to service connection for PTSD and granted service connection. The grant of service connection for this disability constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The record contains no indication that the Veteran has disagreed with the initial rating or effective date assigned; thus, those matters are not in appellate status. Grantham, 114 F. 3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). The Board also notes that the Veteran was previously represented by the Veterans of Foreign Wars of the United States. In November 2015, he changed his representation to the Missouri Veterans Commission. This appeal was processed using the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this case should take into consideration the existence of these records. The Board notes that an October 2015 examination for housebound status or permanent need for regular aid and attendance was not considered by the RO in the June 2015 statement of the case, and the Veteran did not provide a waiver of the RO's initial consideration of any new evidence. 38 C.F.R. § 20.1304 (2015). However, the Agency of Original Jurisdiction (AOJ) will have the opportunity to review this record upon remand. The issues of whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for hypertension,; whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for peripheral neuropathy, whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for hepatitis C, and entitlement to service connection for a psychiatric disorder, to exclude PTSD, have been raised by the record in a November 2015 statement, but have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The issues of entitlement to service connection for diabetes mellitus type II, to include as due to herbicide exposure, and entitlement to service connection for ischemic heart disease, to include as due to herbicide exposure, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. In a September 2010 rating decision, the RO denied the Veteran's claim of entitlement to service connection for diabetes mellitus type II, to include as due to herbicide exposure. The Veteran was notified of the decision and he did not appeal or submit new and material evidence within one year of the decision. 2. The evidence received since the September 2010 rating decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim for service connection for diabetes mellitus type II, to include as due to herbicide exposure. CONCLUSIONS OF LAW 1. The September 2010 rating decision that denied a claim for service connection for diabetes mellitus type II, to include as due to herbicide exposure, is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. § 20.1103 (2015). 2. The evidence received since the September 2010 rating decision is new and material, and the claim of entitlement to service connection for diabetes mellitus type II, to include as due to herbicide exposure, is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that a prior January 2008 rating decision severed service connection for diabetes mellitus type II effective April 1, 2008. In a subsequent September 2010 rating decision, the RO denied the Veteran's claim for service connection for diabetes mellitus type II, to include as due to herbicide exposure. The RO based its denial on the fact that the Veteran did not have a current diagnosis of diabetes mellitus type II. The Veteran was notified of the decision and his appellate rights in October 2010. However, the Veteran did not file a notice of disagreement. In general, rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. There was also no new and material evidence received within one year of the issuance of the decision. Therefore, the September 2010 rating decision is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103 (2015). Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108. 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. New evidence means existing evidence not previously submitted to VA. 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. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Shade, 24 Vet. App. at 117. Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. At the time of the September 2010 rating decision, the evidence of record included the Veteran's statements, his service treatment records, his military personnel records, a January 2007 Physician's Statement from Dr. Q, a May 2007 VA medical opinion, VA examinations dated in February 2007, June 2010, and September 2010, and VA treatment records dated from February 1969 to June 2010. In the January 2007 Physician's Statement, Dr. Q found diabetes mellitus that was manageable by restricted diet only. During a February 2007 VA examination for peripheral vascular disease, the Veteran reported to the VA examiner that he had been diagnosed with diabetes in May 2006, but was not receiving any form of treatment. In a May 2007 VA medical opinion, the same VA examiner stated that based on the clinical evidence of record, it was less likely than not that the Veteran had diabetes mellitus type II. In contrast, the June 2010 VA examiner stated that the Veteran did have diabetes mellitus type II that was relatively new in its onset and diet-controlled. The September 2010 VA examination report includes the VA examiner's statement that the Veteran did not meet the criteria for a formal diagnosis of diabetes mellitus type II. He opined that the label of diet-controlled diabetes mellitus was erroneously applied to the Veteran in 2006. The evidence submitted since the September 2010 rating decision includes the Veteran's statements, VA treatment records dated from February 1972 to June 2015, a September 2012 examination for housebound status or permanent need for regular aid and attendance from Dr. Q, a December 2013 Disability Benefits Questionnaire (DBQ) from Dr. Q, a January 2014 DBQ from Dr. M, a VA St. Louis Health Care System newsletter submitted by the Veteran in January 2014, a February 2014 VA examination, an April 2014 VA medical opinion, an August 2014 Verification of Disability or Handicap document from Dr. M, and an October 2015 examination for housebound status or permanent need for regular aid and attendance from Dr. M. In the September 2012 examination, Dr. Q documented that there was a diagnosis of diabetes. In the December 2013 DBQ, Dr. Q stated that the Veteran was not diagnosed with diabetes mellitus, but had impaired fasting glucose. Nevertheless, Dr. M found that a diagnosis of diabetes mellitus type II in the January 2014 DBQ. The February 2014 VA examiner also found a diagnosis of diabetes mellitus type II. A later April 2014 VA medical opinion stated that the Veteran has never had an acceptable diagnosis of diabetes mellitus type II. In August 2014, Dr. M noted that the Veteran's handicap included diabetes. However, an April 2015 VA treatment record noted that the Veteran's A1C was within the pre-diabetes range and no results were within the diabetes range. In the October 2015 examination, Dr. M also stated that the Veteran had diabetic neuropathy. The Board finds that new and material evidence has been presented to reopen the Veteran's previously denied claim of entitlement to service connection for diabetes mellitus type II, to include as due to herbicide exposure. The February 2014 VA examination constitutes new evidence, in that it was not previously considered, and the evidence is presumed credible for the purposes of reopening. This evidence also relates to the issue of whether the Veteran has a current diagnosis of diabetes mellitus type II, which was a basis of the RO's denial in September 2010. Although there is conflicting evidence as to the presence of a current disability, much like there was at the time of the prior decision, the Board finds that combined with VA assistance and the other evidence of record, it raises a reasonable possibility of substantiating the claim. See Shade, 24 Vet. App. at 117. Thus, the Board finds that the claim is reopened. However, as will be explained below, the Board finds that further development is necessary before it can address the merits of the claim. ORDER The claim of entitlement to service connection for diabetes mellitus type II, to include as due to herbicide exposure, is reopened. REMAND Remand is required regarding the claim for service connection for diabetes mellitus for an examination and comprehensive opinion. The Veteran contends that he has diabetes mellitus type II that arose as a result of his herbicide exposure while serving in the Republic of Vietnam. His military personnel records show that he served in Vietnam from April 1967 to April 1968. Veterans with Vietnam service are presumed to have been exposed to herbicides, including Agent Orange. See 38 C.F.R. § 3.307(a)(6)(iii) (2015). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2015). Diabetes mellitus type II is one of the enumerated diseases which are deemed to be associated with herbicide exposure. 38 C.F.R. § 3.309(e). However, as discussed above, the record contains conflicting medical evidence as to whether the Veteran has a current diagnosis of diabetes mellitus type II. During a February 2014 VA examination, the examiner found an official diagnosis of Diabetes Type II. An April 2014 VA medical opinion was later provided in an e-mail correspondence from an author with unknown credentials. This individual stated that despite any other opinion to the contrary, the Veteran has never had an acceptable diagnosis of diabetes mellitus type II. He explained that Dr. Q's December 2013 opinion that the Veteran had an impaired glucose tolerance was the most correct opinion of record. He also discussed the previous opinion that Dr. Q provided in September 2012. This opinion did not specifically address the positive diagnosis from the February 2014 VA examination. In addition, diabetes was still included on the Veteran's problem list in a June 2015 VA treatment record. Moreover, Dr. M stated in August 2014 that the Veteran had diabetes, and she noted in October 2015 that he had diabetic neuropathy. See August 2014 Verification of Disability or Handicap; October 2015 examination for housebound status or permanent need for regular aid and attendance. As such, the Board finds that the Veteran should be provided with another VA examination to determine whether he has a current diagnosis of diabetes mellitus type II. Regarding both claims on appeal, remand is required to obtain SSA records. Virtual VA also contains a Social Security Administration (SSA) inquiry that indicates that the Veteran receives SSA disability benefits. The claims file does not contain a copy of the decision to grant benefits or the records upon which that decision was based or an indication that attempts were made to obtain these records. VA's duty to assist specifically includes requesting information from other Federal departments or agencies. Where there has been a determination that a veteran is entitled to SSA benefits, the relevant records concerning that decision are often needed by the VA for evaluation of pending claims and must be obtained. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Therefore, the AOJ should attempt to obtain the Veteran's SSA records. The Board also notes that there may be outstanding VA treatment records from the VA St. Louis Health Care System. Updated treatment records should be obtained in light of the remand. Accordingly, the case is REMANDED for the following action: 1. Contact the SSA and obtain a copy of that agency's decision concerning the Veteran's claim for disability benefits, including any medical records used to make the decision. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 3. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 4. After completing the preceding development, schedule the Veteran for a VA examination to determine the nature and etiology of his claimed diabetes mellitus type II. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner must clearly state whether the Veteran has a current diagnosis diabetes mellitus type II. Regardless of the conclusion reached, the examiner must address each of the following in the supporting explanation: 1) the January 2007 Physician's Statement from Dr. Q; 2) the February 2007 VA examination; 3) the May 2007 VA medical opinion; 4) the June 2010 VA examination report; 5) the September 2010 VA examination report; 6) the September 2012 examination report; 7) the December 2013 DBQ;8) the January 2014 DBQ; 9) the February 2014 VA examination report; 10) the April 2014 VA medical opinion; 11) the August 2014 Dr. M statement; 12) the April 2015 VA treatment record; and 13) the October 2015 examination report. A clear explanation for the VA medical opinion is required, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 7. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. After completing the above actions and any other development as necessary, the case should be reviewed by the AOJ on the basis of the additional evidence. The Veteran 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). ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs