Citation Nr: 1802312 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-13 961 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for diabetes mellitus. 3. Entitlement to service connection for erectile dysfunction secondary to diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Boal, Associate Counsel INTRODUCTION The Veteran served in the United States Air Force from February 1970 to February 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the San Diego, California, Department of Veterans Affairs (VA) Regional Office (RO), which denied the claims for service connection. The issue(s) of entitlement to service connection for diabetes mellitus and erectile dysfunction are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A June 2005 rating decision denied service connection for diabetes mellitus as the Veteran did not have service in the Republic of Vietnam and his diabetes was not otherwise related to his service. The Veteran did not file a timely appeal of this decision and it became final. 2. The evidence received since the June 2005 rating decision was not previously considered by agency decision makers; is not cumulative and redundant of evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a diabetes mellitus. CONCLUSIONS OF LAW 1. The June 2005 rating decision denying service connection for diabetes mellitus is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. The criteria for reopening the claim of entitlement to service connection for diabetes mellitus have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION New and Material Evidence Generally, a final rating decision or Board decision may not be reopened, and a claim based on the same factual analysis may not be considered. 38 U.S.C. §§ 7104, 7105. Under 38 U.S.C.A § 5108, however, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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). 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). 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 Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. However, a new theory of entitlement does not automatically reopen a previously denied claim. See Bingham v. Nicholson, 421 F.3d 1346, 1348-49 (2005); see also Boggs v. Peake, 520 F.3d 1330, 1336 (Fed. Cir. 2008) (A new theory of causation for the same disease or injury that was the subject of a previously denied claim cannot be the basis of a new claim). The RO initially denied a claim for entitlement to service connection for diabetes mellitus in a June 2005 rating decision. That decision was not appealed and became final. Evidence of record at the time of the June 2005 rating decision included the Veteran's service medical records and post-service outpatient medical records through 2004. Pertinent evidence received subsequent to the June 2005 rating decision includes outpatient medical records through 2009 as well as additional information that could support the Veteran's claim that he was exposed to herbicide agents while serving at Anderson Air Force Base in Guam. The evidence received since the June 2005 rating decision is new and material. This medical evidence is not cumulative or redundant of the evidence previously of record. Moreover, it raises a reasonable possibility of substantiating the claim. Accordingly, reopening of the claim of entitlement to service connection for diabetes mellitus is warranted. ORDER New and material evidence having been received, the reopening of the claim of entitlement to service connection for diabetes mellitus is granted. REMAND The Board finds that additional development is necessary before the Veteran's remaining claims on appeal can be decided. The Veteran is claiming service connection for diabetes mellitus due to exposure to herbicide agents while he served at Anderson Air Force Base in Guam as well as erectile dysfunction secondary to diabetes mellitus. However, there is not enough evidence in the file to confirm that he was exposed to herbicide agents during service. Therefore, the claims should be remanded to the RO for further development to confirm whether the Veteran was exposed to herbicide agents during service. Accordingly, the case is REMANDED for the following action: 1. Take all necessary actions to comply with the evidentiary development procedures required by M21-1, Part IV, Subpart ii, Chapter 1, Section H.7. Provide a detailed statement of the Veteran's claimed herbicide agent exposure in Guam during his service to the C&P Service and request a review of the DOD inventory of herbicide operations to determine whether herbicide agents were used, tested, or stored in these locations. If the exposure is not verified, a request must then be sent to the JSRRC for verification of the Veteran's possible herbicide agent exposure. If the JSRRC determines that there is insufficient information to verify the Veteran's claimed exposure, a formal finding should be made in this regard and associated with the record. 2. After completing the requested action above, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims addressed in this remand by evaluating all evidence obtained after the last supplemental statement of the case (SSOC) was issued. If any benefit sought on appeal remains denied, the RO must furnish the Veteran and his representative an appropriate SSOC and allow him a reasonable period of time to respond. 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. §§ 5109B, 7112 (2012). _________________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).