Citation Nr: 1801644 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-12 354 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Bayles, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1988 to May 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decisions by the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO). A videoconference hearing was scheduled in September 2017; the hearing request was withdrawn in writing in August 2017. FINDINGS OF FACT 1. An unappealed December 2009 rating decision denied the Veteran service connection for diabetes mellitus based essentially on a finding that such disease was unrelated to her service. 2. Evidence received since the December 2009 rating decision is cumulative or does not tend to relate the Veteran's diabetes mellitus to her service; does not relate to an unestablished fact necessary to substantiate the claim of service connection for diabetes; and does not raise a reasonable possibility of substantiating such claim. CONCLUSION OF LAW New and material evidence has not been received, and the claim of service connection for diabetes mellitus may not be reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a)(2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act (VCAA) The 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). By correspondence dated in December 2011, VA notified the Veteran of the information needed to substantiate and complete her claim, to include notice of the information that she was responsible for providing, the evidence VA would attempt to obtain, and how VA assigns disability ratings and effective dates of awards. The letter also complied with the requirements set forth in Kent v. Nicholson, 20 Vet. App. 1 (2006) regarding notice in a claim to reopen. It is not alleged that notice was less than adequate. The Veteran's service treatment records (STRs) and pertinent VA and private medical records have been secured. In a claim to reopen, the duty to assist by arranging for a VA examination/obtaining a medical opinion does not attach unless/until the claim is, in fact, reopened. 38 C.F.R. § 3.159(c)(4)(iii). Here, the claim to reopen is denied. The Veteran has not identified any evidence pertinent in this matter that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence.) Hence, the Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. "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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disease first diagnosed after discharge may be service connected if all the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). The U.S. Court of Appeals for Veterans Claims (CAVC) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. CAVC interpreted the language of 38 C.F.R. § 3.156(a) and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding opening". See Shade v. Shinseki, 24 Vet. App. 110 (2010). Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; however, if the evidence is in support of the claim, or is in equal balance, the claim is allowed. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A December 2009 rating decision continued a denial of the Veteran's claim of service connection for diabetes mellitus, essentially on the basis that the disease was not shown to be related to her service. She was informed of, and did not appeal, that decision, or submit new and material evidence within the following year, and it became final (and is the last prior final decision in the matter). 38 U.S.C.§ 7105. [Previous rating decisions in July 1997, June 2004, and September 2005 had also denied service connection for diabetes mellitus on the basis that it was not shown to be related to her service. None was appealed, and they each, in turn, became final]. Pertinent evidence of record at the time of the December 2009 rating decision included the Veteran's STRs, her statements, VA examinations, and private and VA records. A February 1992 service separation report of medical history includes the notation "? [a question of-or questionable] Adult onset DM, diet controlled." The February 1992 service separation report of medical examination lists a fasting blood sugar of 102 and does not note any diabetic issues. Urinalysis was negative for albumin and sugar. A November 1996 VA treatment record notes the first confirmed diagnosis of diabetes mellitus. The December 2009 rating decision notes that on September 2009 VA Examination, the examiner opined "there is documentation of diabetes in service records; therefore it is at least as likely as not that diabetes is due to time in the military." The RO found that nonetheless there was no diagnosis or treatment of diabetes in service noted in the Veteran's STRs. She did not appeal that decision, and it became final. Evidence received since the December 2009 rating decision includes VA and private treatment records and statements by the Veteran. A May 2011 VA outpatient treatment record shows treatment for diabetes mellitus. February 2014 to October 2015 private treatment records note ophthalmologic treatment for complications of diabetes mellitus. The records do not relate the Veteran's diabetes mellitus to her military service. As the claim of service connection for diabetes mellitus was previously denied on the basis that the disease was not shown to be related to the Veteran's service, for evidence to be new and material (and reopen the claim), it would have to tend to show that the Veteran's diabetes is etiologically related to her service. In a December 2011 statement, the Veteran reasserted that her diabetes mellitus was diagnosed in service. To the extent that she may be referring to the notation in a 1992 report of Medical History of "? Adult Onset DM", such evidence is not new. It was in the record at the time of the December 2009 rating decision (but the AOJ apparently found that notation of a possible or questionable history did not establish a diagnosis of diabetes in service in the absence of any findings supporting such diagnosis). No evidence received since the December 2009 rating decision is new evidence that tends to show that the Veteran's diabetes is etiologically related to her service. Thus, nothing added to the record since the December 2009 rating decision relates to the unestablished fact necessary to substantiate the claim. VA and private outpatient treatment records show ongoing treatment for diabetes; they do not relate it to her service. It was previously shown, and is not in dispute, that she has diabetes mellitus. The record remains devoid of any evidence linking the claimed diabetes etiologically to the Veteran's service. Accordingly, the Board finds that new and material evidence has not been received, and that the claim of service connection for diabetes mellitus may not be reopened. ORDER The appeal to reopen a claim of service connection for diabetes mellitus is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs