Citation Nr: 1751357 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 13-33 913 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for diabetes mellitus, to include the question of whether new and material evidence has been received to reopen the claim. REPRESENTATION Veteran represented by: Iowa Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Dean, Counsel INTRODUCTION The Veteran had active service from November 1966 to November 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In May 2016, a Board videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the record. FINDINGS OF FACT 1. A June 2003 decision denied service connection for diabetes mellitus, type II, based on a finding that the Veteran did not have the requisite diagnosis. 2. Evidence received since the June 2003 rating decision includes a medical letter stating the Veteran's type of diabetes could not be determined; this evidence is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim. 3. The Veteran has diabetes mellitus related to an event, injury, or disease in service. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for diabetes mellitus may be reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156, 20.1100 (2017). 2. Service connection for diabetes mellitus is warranted. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Given the favorable action taken herein, no further discussion of the VCAA is required. The Veteran's claim of entitlement to service connection for diabetes mellitus was denied in June 2003 on the basis that the Veteran had diabetes mellitus, type I, rather than diabetes mellitus, type II. The decision became final because the Veteran did not initiate an appeal or submit new and material evidence within one year of the determination. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.1103 (2017). Prior unappealed decisions of the Board and the RO are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 20.200 20.1100, 20.1103, 20.1104 (2017). However, a final decision shall be reopened if new and material evidence is presented. 38 U.S.C. § 5108 (2012). 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) (2017). The standard of whether new and material evidence raises a reasonable possibility of substantiating a claim is a low threshold. Shade v. Shinseki, 24 Vet. App. 110 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110 (2010). Since the December 2011 claim to reopen the claim for service connection for diabetes mellitus, the Veteran has submitted a letter dated May 2016 from a private pediatric endocrinologist, stating that there is no way to determine which type of diabetes the Veteran has. As this evidence was submitted after the final June 2003 rating decision and relates to the lacking element of a diagnosis, it is new and material. Accordingly, new and material evidence having been received, the Board finds that the claim for service connection for diabetes mellitus is reopened. Moreover, after this review of the evidence, resolving all reasonable doubt in the Veteran's favor, the Board grants service connection for diabetes mellitus. In summary, giving the Veteran the benefit of the doubt, he has a diagnosis of diabetes mellitus, type II. His exposure to herbicides has previously been conceded; therefore, presumptive service connection is applicable. See 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307, 3.309(e). As such, the Board grants service connection for diabetes mellitus, type II. ORDER New and material evidence has been received to reopen the claim for service connection for diabetes mellitus. Entitlement to service connection for diabetes mellitus is granted. ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs