Citation Nr: 18144355 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-37 618 DATE: October 24, 2018 ORDER New and material evidence has not been received that is sufficient to reopen a claim of service connection for type II diabetes mellitus secondary to Agent Orange (herbicide agent) exposure; the claim is not reopened. FINDINGS OF FACT 1. In a rating decision issued in March 2007, the RO denied a claim for service connection for type II diabetes mellitus secondary to herbicide agent exposure on the bases that the evidence did not show service in Vietnam or Korea at the DMZ during the required time frame or that type II diabetes mellitus was otherwise related to the Veteran’s service. 2. The evidence received since the March 2007 RO decision, which denied a claim of entitlement to service connection for type II diabetes mellitus, which was not previously of record, and which is not cumulative of other evidence of record, does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The March 2007 rating decision that denied service connection for type II diabetes mellitus, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.160 (d), 20.201, 20.302, 20.1103 (2018). 2. The evidence received subsequent to the March 2007 rating decision is not new and material, and the requirements to reopen the claim of entitlement to service connection for type II diabetes mellitus have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1969 to March 1971. This matter is on appeal from an April 2014 rating decision. New and Material Evidence Claim A March 2007 rating decision denied service connection for type II diabetes mellitus secondary to herbicide agent exposure on the bases that the evidence did not show service in Vietnam or the Korea DMZ during the required time frame or that type II diabetes mellitus was otherwise related to the Veteran’s service. Although the RO declined to reopen the claim in a July 2016 Statement of the Case, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 to address whether new and material evidence has been received to reopen the claim for service connection. That matter goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.160 (d), 20.302, 20.1103 (2018). Since the Veteran did not appeal that decision or submit any additional evidence within one year of the March 2007 rating decision, that decision became final. See 38 U.S.C. §§ 7105 (c); 38 C.F.R. §§ 3.104 (a), 3.156, 20.302, 20.1103 (2018). The Veteran most recently submitted his application to have the previously denied claim reopened in December 2013. VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). New and material evidence is defined as 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 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 Shade v. Shinseki, 24 Vet. App. 100 (2010), the United States Court of Appeals for Veterans Claims (Veterans Court) held that 3.159(c)(4) does not require new and material evidence as to each previously unproven element in order for the claim to be reopened and the duty to provide an examination triggered. In a fact pattern where a prior denial was based on lack of current disability and nexus, the Veterans Court found that newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. The standard is low. However, it must be met to reopen the claim. The pertinent evidence of record at the time of the March 2007 rating decision included the Veteran’s service treatment records (STRs), service personnel records (SPRs), private treatment records, a pamphlet about Agent Orange, and documentation from the Joint Services Records Research Center (JSRRC). It is important for the Veteran to understand that the unestablished facts necessary to substantiate service connection for his type diabetes mellitus, are a nexus between his current disability and service, including a finding that he was exposed to an herbicide agent. The evidence received since the March 2007 RO decision consists of VA treatment records, additional private treatment records, additional SPRs, photographs related to the Veteran’s service, and the Veteran’s written assertions. The newly-received VA treatment records, additional private treatment records, and photographs do not support a finding that the Veteran was exposed to herbicide agents during service or that his type II diabetes mellitus is etiologically related to his service. The Board finds that, as the new evidence does not address any unestablished fact necessary to establish service connection for the claimed disability in a way that raises a reasonable possibility of substantiating the claim, but is cumulative and redundant of evidence already of record. Regarding SPRs received after the March 2007 rating decision, the Board notes that VA regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the requirement that new and material evidence must first be received. 38 C.F.R. § 3.156 (c). In this regard, the SPRs do not contain any information or evidence relevant to, or which would substantiate, the diabetes mellitus claim (i.e., they do not show that the Veteran was exposed to an herbicide agent during service). Therefore, the SPRs are not deemed relevant to the claim on appeal and 38 C.F.R. § 3.156 (c) are not applicable to this claim. Regarding the Veteran’s newly-submitted lay statements, the Veteran’s written assertion merely demonstrate the Veteran’s continued assertions that the claimed type II diabetes mellitus is related to service and alleged herbicide agent exposure during service in Korea. The Board finds that, as the new evidence does not address any unestablished fact necessary to establish service connection for the claimed disability in a way that raises a reasonable possibility of substantiating any claim, but is cumulative and redundant of evidence already of record, the additional evidence is not new or material. The Veteran is simply stating his claim once again without providing new and material evidence. In any event, even if the Board did reopen the claim, it is important for the Veteran to understand that a great deal of the evidence he has recently submitted would provide highly probative factual evidence against his claim. Newly received evidence indicates ongoing treatment for type II diabetes mellitus, but does not indicate any etiologically relationship between the current diabetes mellitus and his service or support a finding of herbicide agent exposure during service in Korea. In this regard, the evidence would only provide highly probative evidence against the claim on the merits. As a result, the Board finds that the newly received evidence does not relate to an unestablished fact necessary to substantiate the claim on appeal, thus is not new and material and this claim is not reopened. 38 C.F.R. § 3.156 (a). The Board notes that the Veteran has been notified in writing of the reasons for the denial of service connection and for the reasons of the denial of his application to reopen. He has offered no additional information regarding the claim that would provide a reasonable basis for further development. Under these circumstances, the Board must conclude that new and material evidence to reopen the claim of entitlement to service connection for type II diabetes mellitus has not been received. As such, the RO’s March 2007 decision remains final, and the appeal must be denied. As the Veteran has not fulfilled the threshold burden of submitting new and material evidence to reopen the finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993).] (Continued on the next page)   (Continued on next page) KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Adams, Counsel