Citation Nr: 18141336 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 18-25 722 DATE: October 10, 2018 ORDER The petition to reopen the previously denied claim of entitlement to service connection for diabetes is granted (to this extent only). REMANDED Entitlement to service connection for diabetes is remanded. Entitlement to service connection for diabetic peripheral neuropathy of the left lower extremity (LLE) is remanded. Entitlement to service connection for diabetic peripheral neuropathy of the right lower extremity (RLE) is remanded. FINDING OF FACT An unappealed May 2013 rating decision denied service connection for diabetes; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim.   CONCLUSION OF LAW The May 2013 rating decision denying the claim for service connection for diabetes is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from November 1971 to November 1973 and from January 2009 to February 2010. New and material evidence has been received to reopen the claim for service connection for diabetes Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104, 7105. Similarly, a decision by the Board is final unless the Chairman of the Board orders reconsideration of the decision. See 38 U.S.C. § 7103(a); 38 C.F.R. § 20.1100(a). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, 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). Entitlement to service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In a May 2013 rating decision, the Regional Office (RO) denied service connection for diabetes. The RO determined that the evidence of record did not show an event, disease or injury in service. Additionally, the RO determined that the evidence of record did not show that the Veteran’s diabetes developed to a compensable degree within the specified time period after release from service to qualify for the presumption of service connection. VA received no appeal of this decision and no new and material evidence was received prior to expiration of the appeal period. Therefore, the May 2013 rating decision became final. The Board acknowledges the October 2013 written statement requesting service connection for diabetes, which was sent within a year of the May 2013 rating decision. However, as this statement does not express disagreement with the May 2013 rating decision, it may not be construed as a notice of disagreement. See 38 C.F.R. §§ 20.302, 20.1103. In September 2014, the Veteran submitted another written statement requesting service connection for diabetes. As the Veteran was previously denied service connection for diabetes in a final decision, the Board must consider whether new and material evidence has been received. Since the prior final decision, the Veteran underwent a VA diabetes examination in September 2015. The VA examiner opined that the Veteran’s diabetes is less likely than not due to his service. Essentially, the VA examiner reasoned that the Veteran’s diabetes was not diagnosed until 2011 as lab work conducted prior to 2011 was not conducted while the Veteran was in fasting. The opinion is considered new evidence as it was not previously of record or considered by a VA decision maker. Nor is the evidence cumulative or redundant of any evidence already of record. While the VA examiner provided a negative opinion, the rationale addresses a medical link between the Veteran’s diabetes and his service. As such, the evidence speaks to an unestablished fact in the Veteran’s claim for service connection for diabetes. Additionally, as will be discussed, the rationale requires further clarification and as such has a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection diabetes. Hence, the low threshold for reopening has been met. Shade v. Shinseki, 24 Vet. App. 110, 117-118 (2010). Accordingly, the claim of entitlement to service connection for diabetes is reopened. 38 C.F.R. § 3.156(a). REASONS FOR REMAND The Veteran served on active duty from November 1971 to November 1973, and from January 2009 to February 2010. The Veteran contends that his diabetes manifested days after his discharge from service (within the applicable presumptive period for service connection). See VA Form 21-4138 (October 2013). 1. Entitlement to service connection for diabetes is remanded. To ensure that VA has met its duty to assist, remand is necessary. Although a VA obtained a September 2015 medical opinion, the opinion is inadequate as explained below. The September 2015 VA medical opinion raises the question of whether the Veteran had preexisted diabetes aggravated during active duty. In the September 2015 VA medical opinion, the examiner stated that the Veteran was not diagnosed with diabetes until 2011 (date of sustained blood sugar elevations over the 126 MG/ML range in fasting). However, the VA examiner noted that the Veteran also had impaired fasting glucose before 2006. As impaired fasting glucose is an indicator of prediabetes and the condition existed prior to a period of service (service beginning in 2009), the VA examiner’s rationale raises the issue of whether the Veteran had a pre-existing condition. The Board notes that impaired glucose is not listed on any entrance examination for the Veteran. As such, he is presumed sound. To rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must demonstrate by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Further, to satisfy the second requirement for rebutting the presumption of soundness, VA must rebut a statutory presumption of aggravation by showing by clear and unmistakable evidence either that: (1) there was no increase in disability during service, or (2) any increase in disability was “due to the natural progression” of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). The clear and unmistakable evidentiary standard applies to the burden to rebut the presumption, but this standard does not require the absence of conflicting evidence. Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004). If the presumption of soundness is not rebutted, the claim is one for service connection rather than compensation based on aggravation. Wagner v. Principi. Accordingly, the matter is remanded for a clarifying medical opinion addressing whether there is clear and unmistakable evidence that diabetes existed prior to active duty beginning in January 2009 and, if so, whether there is clear and unmistakable evidence that the disease was not aggravated beyond its natural progression. 2. Entitlement to service connection for RLE diabetic peripheral neuropathy is remanded. 3. Entitlement to service connection for LLE diabetic peripheral neuropathy is remanded. Issues 2-3. The claims for service connection for peripheral neuropathy of the RLE and LLE are inextricably intertwined with the outcome of the claim for service connection for diabetes. Therefore, the Board defers consideration. Harris v. Derwinski, 1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). The matters are REMANDED for the following action: 1. Obtain a clarifying medical opinion from an appropriate clinician on the question whether there is clear and unmistakable evidence that the Veteran’s diabetes existed prior to active duty beginning in January 2009 and, if so, whether there is clear and unmistakable evidence that the disease was not aggravated beyond its natural progression during active duty from January to 2009 to February 2010. If diabetes did not clearly and unmistakably preexist the Veteran’s active duty beginning in January 2009, is it at least as likely as not that it (1) began during active service between January 2009 and February 2010, or (2) manifested within one year after his discharge from service in February 2010. The examiner should note that “clear and unmistakable evidence” means that the evidence cannot be misinterpreted and misunderstood, i.e. is undebatable. A complete rationale for the medical opinion is required. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. 3. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Smith, Associate Counsel