Citation Nr: 1749558 Decision Date: 11/02/17 Archive Date: 11/13/17 DOCKET NO. 11-13 457 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been submitted sufficient to reopen the claim for entitlement to service connection for diabetes mellitus type II. 2. Entitlement to service connection for an eye disorder as secondary to diabetes mellitus. 3. Entitlement to an increased rating in excess of 20 percent for service-connected residuals of a left shoulder dislocation. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. J. Cho, Associate Counsel INTRODUCTION The Veteran honorably served on active duty in the United States Air Force from January 1979 to July 1983. The matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated March 2010 (continuing the 20 percent evaluation of the left shoulder disability), May 2010 (declining to reopen final denial of diabetes mellitus type 2 service connection claim), and August 2010 (denying service connection claim for eye disorder as secondary to diabetes mellitus) by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The issue of entitlement to an increased rating in excess of 20 percent for service-connected residuals of a left shoulder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACTS 1. In June 1997, the Board decision denied the claim for entitlement to service connection for diabetes mellitus type II due to a finding of no evidence showing that the diabetes mellitus was incurred or aggravated in service, or incurred within 1 year of active duty discharge, or otherwise related to the Veteran's active duty service. The Veteran was notified of his rights, but did not appeal or submit new and material evidence during the applicable one-year appellate period. 2. Evidence received since the June 1997 Board decision does not relate to a previously unestablished fact necessary to substantiate the claim for entitlement to service connection for diabetes mellitus type 2. 3. The Veteran has not been service-connected for diabetes mellitus type 2. CONCLUSIONS OF LAW 1. The June 1997 Board decision is final. 38 U.S.C.A. §§ 4004, 4005 (West 1997) [currently codified at 38 U.S.C.A. §§ 7104, 7105 (West 2014)]. 2. Evidence received since the June 1997 Board decision is neither new nor material and the claim to reopen the claim for entitlement to service connection for diabetes mellitus type 2 is denied. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2016). 3. The criteria for service connection for an eye disability as secondary to a service-connected disability have not been met. 38 U.S.C.A. § 1131, 5107 (West 2014); 38 C.F.R. § 3.102, 3.303, 3.304, 3.310 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Whether new and material evidence has been submitted sufficient to reopen the claim for service connection for diabetes mellitus type 2. The Veteran's application to reopen the claim of entitlement to service connection for diabetes mellitus type 2 is denied. Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New and material evidence is defined as evidence not previously submitted to agency decision makers that bear directly and substantially upon the specific matter under consideration; such new and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board will generally presume the credibility of the evidence in determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Significantly, however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Here, the Board denied the claim for entitlement to service connection for diabetes mellitus type 2 in June 1997. In its June 1997 decision, the Board denied the claim due to finding no evidence showing that the diabetes mellitus type 2 was incurred or aggravated in service, or incurred within 1 year of active duty discharge, or otherwise related to the Veteran's active duty service. See June 1997 Board decision. In March 2010, the Veteran sought to reopen his claim for entitlement to service connection for diabetes mellitus type 2. The relevant evidence received since the final June 1997 Board decision include Columbus VA medical records dated October 1998 through April 2017, Cleveland VA medical records dated August 2011 through August 2016, Dayton VA medical records dated April 2001 through November 2007, and multiple statements from the Veteran reporting that he has a strong family history for diabetes, that he had weight control issues prior to his Air Force career, that he was enrolled in a weight control program during basic training, and that he believes that during basic training, his diabetes type 2 was initially triggered but not diagnosed. See, e.g., April 2010 Veteran's Statement; May 2011 Form 9; September 2011 Veteran's Statement. The Board has reviewed all of the evidence that has been associated with the claims file since June 1997, and finds no new and material evidence indicating that the Veteran's diabetes mellitus type 2 was incurred or aggravated in service, or incurred within 1 year of active duty discharge, or otherwise related to the Veteran's active duty service. The Board finds that the Columbus VA medical records dated October 1998 through April 2017, Cleveland VA medical records dated August 2011 through August 2016, and Dayton VA medical records dated April 2001 through November 2007 are "new" because they were not previously before the Board at the time it rendered the June 1997 denial. However, the Board does not find these records "material" because they do not address a reason for the Board's June 1997 denial. More specifically, these VA medical records do not show that the Veteran's diabetes mellitus type 2 was incurred or aggravated in service, or incurred within 1 year of active duty discharge, or otherwise related to the Veteran's active duty service. Instead, they show that the Veteran was diagnosed with diabetes mellitus type 2 in September 1995, more than 12 years after he separated from active duty service. Moreover, the Board does not find the information provided by the Veteran in multiple statements dated April 2010, May 2011 and September 2011 "new and material" for purposes of reopening his claim. In these statements, the Veteran reports that he has a strong family history for diabetes, that he had weight control issues prior to his Air Force career, that he was enrolled in a weight control program during basic training, and that he believes that during basic training, his diabetes was initially triggered but failed to have been diagnosed. See, e.g., April 2010 Veteran's Statement; May 2011 Form 9; September 2011 Veteran's Statement. While these statements were submitted after the June 1997 Board denial, the Board cannot consider them "new and material" because the information in these statements was already considered by the Board at the time it rendered the June 1997 denial. The Board explicitly noted in the June 1997 denial that it had reviewed and considered the Veteran's August 1996 RO hearing testimony in rendering the June 1997 denial. A review of the Veteran's August 1996 RO hearing testimony transcript shows that the Veteran had reported at the RO hearing that he has a strong family history for diabetes, that he had weight control issues prior to his Air Force career, that he was enrolled in a weight control program during basic training, and that he believes that during basic training, his diabetes was initially triggered but not diagnosed. See August 1996 RO Hearing Testimony; June 1997 Board Denial. Therefore, the multiple statements, even though they were submitted after the June 1997 Board denial, cannot be considered "new and material" because the information they provide are cumulative. See Anglin v. West, 203 F.3d 1343, 1347 (2000) (evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board). In sum, there has been no probative evidence submitted after June 1997 that proves any previously unestablished fact - that the diabetes mellitus type 2 was incurred or aggravated in service, or incurred within 1 year of active duty discharge, or otherwise related to the Veteran's active duty service. Although the threshold to reopen a claim is low, such threshold has not been met in this case. Shade, 24 Vet. App. at 118. The Veteran's application to reopen the previously denied claim for diabetes mellitus type 2 must therefore be denied. 2. Entitlement to service connection for an eye disorder as secondary to diabetes mellitus. The Veteran contends that his eye disorder is secondary to his diabetes mellitus. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); 38 C.F.R. § 3.310 (2016). Here, however, the Veteran has not been service-connected for diabetes mellitus (either type 1 or type 2). See also id. Therefore, the claim for entitlement to service connection for an eye disorder as secondary to diabetes mellitus is denied. ORDER New and material evidence has not been received, the application to reopen the claim of entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for an eye disability as secondary to diabetes mellitus is denied. REMAND 3. Entitlement to an increased rating in excess of 20 percent for service-connected residuals of a left shoulder dislocation. The Veteran last underwent a VA examination for his service-connected residuals of a left shoulder dislocation in August 2013. The Veteran has reported that since that time, the severity of his disability has increased, and has requested the Board for a re-evaluation of his disability. See, e.g., September 2017 Appellant's Brief; see also Snuffer v. Gober, 10 Vet. App. 400 (1997). Moreover, since the Veteran's August 2013 VA shoulder and arm disability examination, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the case of Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016), which affects the Veteran's case. In Correia, the Court determined that additional requirements must be met prior to finding that a VA examination is adequate. See id. Although the Board sincerely regrets the delay, it is necessary to ensure that the Veteran's VA examination complies with the requirements of the holding in Correia. Therefore, in light of the above, the Board finds that a VA examination is necessary to ascertain the current severity of his back disability. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of his service-connected residuals of a left shoulder dislocation. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is instructed to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has 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 should report all signs and symptoms necessary for evaluating the Veteran's service-connected residuals of a left shoulder dislocation under the rating criteria. In particular, the examiner should provide the range of motion in degrees of the left shoulder. In so doing, the examiner should test the Veteran's range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use of the right shoulder. In this regard, the examiner must indicate whether, and to what extent, the Veteran's range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. The examiner must also report whether the Veteran has in his left (minor) arm/shoulder unfavorable ankylosis of scapulohumeral articulation with abduction limited to 25 degrees from the side or intermediate ankylosis of scapulohumeral articulation between favorable and unfavorable. The examiner must report whether the Veteran has other impairment of the humerus, including a loss of the head, nonunion or fibrous union. The examiner shall inquire as to periods of flare-up, and note the frequency and duration of any such flare-ups. ANY ADDITIONAL IMPAIRMENT ON USE OR IN CONNECTION WITH FLARE-UPS SHOULD BE DESCRIBED IN TERMS OF THE DEGREE OF ADDITIONAL RANGE OF MOTION LOSS. THE EXAMINER SHOULD SPECIFICALLY DESCRIBE THE SEVERITY, FREQUENCY, AND DURATION OF FLARE-UPS; NAME THE PRECIPITATING AND ALLEVIATING FACTORS; AND ESTIMATE, PER THE VETERAN, TO WHAT EXTENT, IF ANY, SUCH FLARE-UPS AFFECT FUNCTIONAL IMPAIRMENT. IF THE EXAMINER IS UNABLE TO CONDUCT THE REQUIRED TESTING OR CONCLUDES THAT THE REQUIRED TESTING IS NOT NECESSARY IN THIS CASE, HE OR SHE SHOULD CLEARLY EXPLAIN WHY THAT IS SO. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" (38 C.F.R. § 4.1), copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 2. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). ______________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs