Citation Nr: 18145144 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 15-46 752 DATE: October 26, 2018 ORDER The request to reopen the finally disallowed claim of entitlement to service connection for diabetes mellitus is denied. REMANDED Entitlement to an increased rating for a Baker’s cysts of left popliteal fossa, currently rated 20 percent disabling, is remanded. FINDINGS OF FACT 1. The January 2005 Board decision denying service connection for diabetes mellitus is final. 2. The additional evidence received since the January 2005 Board decision is cumulative or redundant of the evidence received at the time of the prior decision, does not relate to an unestablished fact, and does not raise a reasonable possibility of substantiating the claim of service connection for diabetes mellitus. CONCLUSIONS OF LAW 1. The Board’s decision denying service connection for diabetes mellitus is final. 38 U.S.C. §§ 511(a), 7103(a), 7104(a), 7252, 7261, 7266 (2012); 38 C.F.R § 20.1100 (2018). 2. The criteria for reopening the finally disallowed claim of service connection for diabetes mellitus are not met. 38 U.S.C. § 5108 (2012); 38 C.F.R §3.156 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from October 1986 to April 1987. This appeal to the Board of Veteran’s Appeals (Board) arose from a February 2013 rating decision by Department of Veteran Affairs (VA) Regional Office (RO), in which the RO determined that no new and material evidence has been submitted to reopen the claim of service connection for diabetes mellitus. The Veteran elected to have his case reviewed by a Decision Review Officer (DRO), and this review was conducted in October 2015. See VA Form 21-0820, Report of General Information (Election of DRO Review); Letter from Attorney Electing DRO Review. The Veteran has perfected the appeal. See February 2014 Notice of Disagreement (NOD); October 2015 Statement of the Case (SOC); December 2015 Substantive Appeal (VA Form 9). Notwithstanding the RO’s actions, the Board has the legal duty to determine whether new and material evidence has been presented to reopen the finally disallowed claim of service connection for diabetes mellitus. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). New and Material Evidence Unless the Chairman of the Board orders reconsideration (or pursuant to those exceptions identified in 38 C.F.R. §20.1100(b)), all Board decisions are final on the date stamped on the face of the decisions. 38 C.F.R. §20.1100(a); see also 38 U.S.C. §511(a), 7103(a), 7104(a), 7252, 7261, 7266 (2012). The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. §5108; 38 C.F.R. § 3.156. According to 38 C.F.R. §3.156, “new” evidence is evidence not previously submitted or considered by the agency decision makers. “Material” evidence is evidence which, either by itself or in conjunction with other previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can neither be cumulative or redundant of the evidence at the time of the last prior final denial of the claim, and must raise a reasonable possibility of substantiating a claim. 38 C.F.R. §3.156(a). For the purposes of determining whether new and material evidence has been received to reopen a prior final claim, the recently submitted evidence will be presumed credible, unless the evidence is inherently false or untrue or, if in the nature of a statement or assertion, it is beyond the scope of the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510, 513 (1992); see also Duran v. Brown, 7 Vet. App. 216 (1995). VA must review the evidence submitted since the last decision of the claim on any basis to determine whether a claim may be reopened based on new and material evidence. See Hickson v. West, 12 Vet. App. 247, 251 (1999). 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for diabetes mellitus In January 2005, the Board denied the Veteran’s claim of service connection for diabetes mellitus. The Veteran appealed the decision to the Court of Appeals for Veteran Claims (CAVC), which affirmed the Board’s decision to deny service connection for diabetes mellitus. Thus, the January 2005 decision is final. 38 C.F.R. §20.1100; 38 U.S.C. §511(a), 7103(a), 7104(a), 7252, 7261, 7266. In July 2012, the Veteran filed a request to reopen the claim of service connection claim for diabetes mellitus. In a February 2013, the RO denied the Veteran’s request to reopen the prior final disallowance of his claim of service connection for diabetes mellitus, finding that no new and material evidence has been submitted. The relevant evidence on file at the time of the January 2005 Board decision includes the service treatment records from October 1986 to April 1987; VA treatment records from 1987 to 1995; transcript of April 1993 hearing; Statement from doctor dated May 1997; transcript of August 1997 hearing; VA outpatient treatment records from 1999 to 2004; October 2001 VA examination; VA examiner’s clarification dated March 2002; Nurse’s statement from 2003; and January 2004 VA Examination. The service medical records from 1986 to 1987 showed no diagnosis of diabetes. The 1987 separation examination revealed no reports of diabetes, showing that his urinalysis was negative for sugar. Medical records show that the Veteran was diagnosed with diabetes in December 1991, four years after the Veteran’s separation from service. In June 1996, an independent medical opinion was given, stating that there was no medical evidence of a relationship between Glucose-6-phosphate dehydrogenase deficiency (G6PD) and diabetes mellitus. A statement from a private doctor dated May 1997 reflects that the Veteran should have been screened for diabetes. There is an October 1997 notation from a doctor, indicating that there is a connection between G6PD deficiency, which the Veteran was diagnosed with in-service, and diabetes mellitus. In the October 2001 VA examination, the VA examiner opined that the G6PD deficiency was not related to the diabetes mellitus. A statement from a nurse from 2003 concludes that it is more probable than not that the Veteran developed diabetes during his service, stating that the symptoms manifested in February 1987, and were ignored until December 1991. In the March 2002 VA examination addendum, the VA examiner clarified that if the Veteran’s blood sugar was found to be abnormally and persistently high during service, and the Veteran showed symptoms of weight loss, thirst, frequent urination and dizziness, then it would be the examiner’s opinion that diabetes mellitus was present during his service. Further, the examiner opined that diabetes mellitus would not have been present if the records shows that the Veteran did not show symptoms until after his discharge. Lastly, the examiner clarified that the urinalysis performed at the Veteran’s separation examination did not reveal any presence of ketones or glucose, which are common with untreated and out of control diabetes mellitus, making it more likely that the Veteran did not have diabetes at the time of his separation. In the January 2004 VA examination, the VA examiner disagreed with the nurse’s 2003 conclusion. The examiner stated that the medical probability that the Veteran’s diabetes was present during his service is very little to none, based on the medical evidence in the Veteran’s file. Further, the examiner opined that the absence of sugar in the urine is a favorable finding against being diabetic and that during service, the Veteran’s urinalysis was negative for sugar. The VA examiner also concluded that there was little to no probability of misdiagnosing G6PD deficiency since it is completely different and the tests for diabetes mellitus and G6PD deficiency are different, making it difficult for a misdiagnosis. According to the January 2005 Board decision, the Board determined that the record evidence did not support a finding that the Veteran’s diabetes mellitus was present during service or that such condition was incurred with the 1-year after service. Accordingly, the Board finds that new and material evidence would consist of evidence that establishes that the onset of the Veteran’s diabetes occurred during his service or was manifested within one year following separation from service. The evidence submitted since the Board’s decision in January 2005 is private medical records from August 2010; VAMC New Orleans treatment records from April 2010 to November 2011; VAMC Biloxi treatment records from August 2011 to April 2014; VAMC Central Alabama treatment records from March 2005; and private medical treatment records from May 2012 to April 2015. The evidence submitted since the January 2005 Board decision shows a current diagnosis and post service treatment for diabetes mellitus. The evidence does not tend to indicate an in-service onset of diabetes or that it was manifested within one year following the Veteran’s separation from service. The Board finds that the evidence submitted since the January 2005 Board decision is new because it was not submitted or considered at the time of the 2005 decision. However, the evidence is not material because it does not relate to an unestablished fact at the time of the prior denial, in this case, signs or symptoms indicating a diagnosis of diabetes while in service, or the manifestation of diabetes within one year following separation of service. Therefore, while some of the evidence submitted since the January 2005 Board decision was new, it is not material as it does not raise a reasonable possibility of substantiating a claim for service connection for diabetes mellitus. As new and material evidence has not been received, the previously denied claim of entitlement for service connection for diabetes mellitus is not reopened. The benefit sought is denied. The benefit of the doubt doctrine is not applicable in this case since the Veteran has not met the threshold burden of submitting new and material evidence necessary to reopen a claim. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). REASONS FOR REMAND 1. Entitlement to an increased rating for Baker cysts of left popliteal fossa, currently rated 20 percent disabling, is remanded. After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran’s claim of entitlement to a rating in excess of 20 percent for baker cysts of left popliteal fossa. The Veteran contends that his baker cysts of the left popliteal fossa are more severe than what is represented by the current rating. The Veteran was last afforded a VA examination in January 2013. On that examination, the Veteran reported that flare-ups impacted the function of his left knee. The VA examiner concluded that loss of function due to flare-ups cannot be determine without resorting to mere speculation. The undamaged opposite joint, right knee, was not tested for range of motion in the examination. The Court recently held in Sharp v. Shulkin, 29 Vet. App 26 (2017) that if there is evidence of flare-ups with functional loss, and the examiner concludes that an opinion regarding the estimated range of motion cannot be provided without resorting to speculation, VA may rely on that conclusion only if (1) it is clear that the examiner has considered all procurable and assembled data; and (2) the opinion must result from a limitation of the medical community at large and not a limitation based on lack of expertise, insufficient testing, or unprocured testing by the examiner. Id. at 33. The Court also held in Correia v. McDonald, 28 Vet. App. 158 (2016), that VA examinations must include joint testing for pain on both active and passive motion, in weight bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The January 2013 VA examination report requires further clarification of the findings and the conclusions contained therein. The Board will remand this claim to obtain an opinion that either attempts to estimate additional functional impairment on flare-ups or provides satisfactory rationale for why such an estimate is not possible. The examiner must include joint testing on the right knee. The matter is REMANDED for the following action: 1. The AOJ should ask the Veteran to identify the provider(s) of any and all evaluations and/or treatment he has received for the left knee and provide authorizations for VA to obtain records of any such private treatment. The AOJ should obtain for the record complete clinical records of all pertinent evaluations and/or treatment (records of which are not already association with the record) from the providers identified. If a private provider does not respond to the AOJ's request for identified records sought, the Veteran must be so notified, and reminded that ultimately it is his responsibility to ensure that private treatment records are received. 2. Obtain all VA treatment records from April 2014 to the present. If any requested outstanding records cannot be obtained, the Veteran should be notified of such. 2. After associating any outstanding records, schedule the Veteran for an appropriate VA examination or examinations to determine the current nature and severity of his service-connected left knee disability. The examiner must conduct all indicated tests and studies, to include range of motion studies, as indicated below. a) The knees must be tested in both active and passive motion, and in weight-bearing and non-weight-bearing. The examiner should identify at what point during the range of motion that pain sets in. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she must clearly explain why that is so. b) The examiner must describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. c) The examiner must also state whether the examination is taking place during a period of flare-up (e.g., on a "bad day"). If not, the examiner must ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner must provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). d) The examiner is requested to identify the presence, or absence of ankylosis of the left knee. If the presence of ankylosis is identified, this determination should be expressed in terms of whether the ankylosis is favorable or unfavorable; and, if feasible, in terms of the degrees of flexion or extension in which the right knee joint is ankylosed. e) The examiner should identify any nerves and muscle groups affected and state whether the level of impairment is characterized as slight, moderate, moderately severe, or severe. If any nerve involvement is wholly sensory, the examiner should so indicate. In answering all questions, please articulate the reasons underpinning every conclusion. That is, (1) identify what facts and information, whether found in the record or outside the record, support the conclusion, and (2) explain how that evidence justifies the conclusion. 3. Then, review the record, conduct any additional development deemed necessary, and readjudicate the claim. If any benefit sought remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC). The Veteran and his representative should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Syesa Middleton, Associate Counsel