Citation Nr: 18142571 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-30 738 DATE: October 17, 2018 ORDER New and material evidence having been received, the claim for entitlement to service connection for diabetes mellitus is reopened. REMANDED The issue of entitlement to service connection for diabetes mellitus, to include as due to in-service herbicide agent exposure, is remanded. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. An August 2010 rating decision denied entitlement to service connection for diabetes mellitus, type II, the Veteran did not timely appeal the denial, and new and material evidence was not submitted as to the issue within the one-year appeal period following the issuance of the August 2010 rating decision. 2. Evidence received since the August 2010 rating decision is new and raises a reasonable possibility of substantiating the Veteran’s claim for entitlement to service connection for diabetes mellitus. CONCLUSIONS OF LAW 1. The August 2010 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156 (b), 20.200, 20.202, 20.302, 20.1103 (2017). 2. New and material evidence having been received; the claim for entitlement to service connection for diabetes mellitus, type II, is reopened. 38 U.S.C. §§ 1110, 5108 (2012); 38 C.F.R. §§ 3.156 (a), 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1965 to December 1968. These matters come before the Board of Veterans’ Appeals (Board) on appeal of an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran’s claims file is currently under the jurisdiction of the San Diego, California RO. New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is provided in 38 U.S.C. § 5108, which states that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The question of whether new and material evidence has been received to reopen a previously denied claim must be addressed by the Board in the first instance because the issue goes to the Board’s jurisdiction to reach and adjudicate the underlying claim on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and further analysis beyond consideration of whether the evidence received is new and material is neither required nor permitted. Barnett, 83 F.3d at 1384. New evidence is existing evidence not previously considered by VA. Material evidence is 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Analysis In this case, the RO denied service connection for diabetes mellitus, type II, in an August 2010 rating decision because there was no evidence of an in-service event, injury, or disease, to include exposure to herbicides. Thus, service connection for diabetes mellitus, type II, could not be established. The Veteran was notified of the decision in a letter dated August 13, 2010. The Veteran did not file a notice of disagreement with the August 2010 rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of issuance of notice of the rating decision. See 38 C.F.R. § 3.156 (b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the August 2010 rating decision became final based on the evidence then of record. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. § 20.1105. Evidence associated with the record since the final August 2010 rating decision includes a May 2015 correspondence from the Veteran containing maps, pictures and locations at which the Veteran reported he worked while stationed in Thailand. This evidence is new in that it was not previously considered by VA. It is also material because it provides evidence that relates to an unestablished fact necessary to substantiate the claim. As such, the correspondence raises a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the Board finds that new and material evidence has been received to reopen the Veteran’s claim for entitlement to service connection for diabetes mellitus, and the claim is reopened. 38 C.F.R. § 3.156 (a). REASONS FOR REMAND After a thorough review of the evidence of record, the Board finds that further development of the Veteran’s claims is needed. 1. Entitlement to Service Connection for Diabetes Mellitus The Veteran seeks entitlement to service connection for diabetes mellitus, to include as due to in-service exposure to herbicides. Review of the medical evidence of record reflects conflicting medical findings with regard to the precise type of diabetes the Veteran has. In that record, there is one VA treatment record noting an assessment of diabetes mellitus, type II. See VA treatment record dated June 2012. However, the majority of the medical evidence suggests a diagnosis of diabetes mellitus “without mention of complication, type II or unspecified type.” See, e.g., VA treatment record dated July 2009. This determination is critical to the Veteran’s case, as the Veteran contends that his diabetes mellitus was caused by in-service exposure to herbicides. The law and regulations which presume service connection based upon exposure to herbicide agents during military service state that the presumption is applicable to diabetes mellitus, type II. 38 U.S.C. § 1116 (2012); 38 C.F.R. § 3.309 (e) (2017). Thus, service connection for diabetes mellitus, type I, may not be presumed based solely upon in-service exposure to herbicide agents. As the record is unclear as to the type of diabetes the Veteran has, remand for an examination is required to determine the nature and etiology of the disease. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the event that the VA examiner concludes that the Veteran has diabetes mellitus, type I, and not diabetes mellitus, type II, the examiner should be asked to provide an opinion as to whether the Veteran’s diabetes mellitus, type I, is related to the Veteran’s military service, to include in-service exposure to herbicides. 2. Entitlement to a TDIU The claim for a TDIU is inextricably intertwined with the Veteran’s claim for entitlement to service connection for diabetes mellitus. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Additionally, the Board notes that the record for review may be incomplete. The most recent VA treatment records are from March 2015. VA treatment records, even if not in the claims file, are considered part of the record on appeal because they are within VA’s constructive possession. See 38 U.S.C. § 5103A (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand, updated VA treatment records must be obtained and associated with the record. The matter is REMANDED for the following action: 1. Obtain all outstanding treatment records relevant to the matters being remanded, to include from March 2015. 2. After the above development, schedule the Veteran for a VA examination to determine the nature and etiology of his diabetes. Provide a copy of this remand and the record for the examiner to review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: (a.) The examiner should provide a clear diagnosis and state whether the Veteran currently has diabetes mellitus, type I, or diabetes mellitus, type II. The examiner should provide supporting explanation and rationale for the diagnosis, particularly in light of the medical evidence reflecting assessments of diabetes mellitus, type II, and diabetes mellitus, unspecified type. If the examiner determines that the Veteran has diabetes mellitus, type I, the examiner should provide the following opinions: (b.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s diabetes mellitus, type I, is related to the Veteran’s active military service, to include exposure to herbicide agents during military service? The examination report must include a complete rationale for the opinions expressed. In rendering the requested opinions, the examiner must consider and discuss the Veteran’s lay statements. The examiner is advised that the Veteran is competent to report observable symptomatology. 3. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and readjudicate the issues on appeal, to include entitlement to a TDIU. If any benefit sought remains denied, furnish the Veteran   and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Counsel