Citation Nr: 18145272 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 16-08 389 DATE: October 26, 2018 ORDER The petition to reopen service connection for diabetes mellitus is granted. REMANDED Entitlement to service connection for diabetes mellitus, to include as due to herbicide agent exposure. Entitlement to service connection for a skin disability, to include as due to herbicide agent exposure. FINDING OF FACT 1. In an unappealed April 2004 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for diabetes mellitus. 2. Additional evidence received since the April 2004 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and relates to an unestablished fact that raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW 1. The April 2004 rating decision, which denied entitlement to service connection for diabetes mellitus, is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1103 (2017). 2. The evidence received subsequent to the April 2004 rating decision is new and material to reopen service connection for diabetes mellitus. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156 (a), 3.303, 20.1105 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service with the United States Army from April 1968 to March 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which, in pertinent part, denied reopening service connection for diabetes mellitus and denied service connection for a skin condition. Reopening entitlement to service connection for diabetes mellitus The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means 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) (2017). 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). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence must be both new and material; if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If the Board determines that the evidence submitted is new and material, it must reopen the case and evaluate the veteran’s claim in light of all the evidence. Justus, 3 Vet. App. at 512. The RO previously denied service connection for diabetes mellitus in an April 2004 rating decision, finding that the evidence failed to establish that diagnosed diabetes mellitus was incurred in or caused by service. The Veteran did not submit a notice of disagreement to the April 2004 rating decision, and the decision became final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). In rendering the above rating decision, the RO considered the service treatment records, VA treatment records dated June 1998 to March 2004 and private treatment records dated from February 2000 to October 2003. Therefore, the Board finds that new and material evidence must tend to establish a nexus between currently diagnosed diabetes mellitus and service. Evidence received since the April 2004 rating decision includes a December 2016 statement from the Veteran contending his diabetes mellitus was due to Agent Orange exposure, and a January 2018 statement from the Veteran that he served in Vietnam for a temporary duty assignment (TDY) in November 1969. Because the Veteran has submitted evidence that tends to show a nexus between currently diagnosed diabetes mellitus and service, the Board finds that the low threshold for reopening service connection has been met. Shade, 24 Vet. App. at 11. For these reasons, the Board finds that new and material evidence sufficient to reopen service connection for diabetes mellitus has been received, and the claim is reopened. 38 C.F.R. § 3.156 (2017). The Board finds, however, that a remand for additional development is necessary to address service connection for diabetes mellitus prior to rendering a decision on the appeal. REASONS FOR REMAND Entitlement to service connection for diabetes mellitus and a skin disability, to include as due to exposure to herbicide agents. Within a December 2016 statement, the Veteran contended that his current diagnosis of diabetes mellitus and a skin disability are related to his exposure to Agent Orange during active service. The Veteran additionally submitted a January 2018 statement indicating that he had been in Vietnam for TDY in November 1969. Upon further review of the record, the Board finds that after the January 2016 statement of the case, and after Veteran’s claims file was transferred to the Board, the RO conducted further development on the appeal. Specifically, the RO requested a search from the Joint Services Records Research Center (JSSRC) to verify the Veteran’s claimed service in Vietnam. The RO submitted a formal finding in February 2018 and a memorandum in April 2018 indicating that exposure to herbicide agents was not verified, to include service in the Republic of Vietnam. Since these documents were associated with the Veteran’s claims file, a supplemental statement of the case has not been issued. The Board notes that the appellate scheme set forth in 38 U.S.C. § 7104(a) contemplates that all evidence will first be reviewed by the Agency of Original Jurisdiction (AOJ) so as not to deprive the claimant of an opportunity to prevail on his claims at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). When the AOJ receives pertinent evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case or a supplemental statement of the case, it must prepare an SSOC addressing that evidence. 38 C.F.R. § 19.31(b)(1) (2017). Therefore, in light of pertinent evidence submitted after the January 2016 statement of the case which has not yet been addressed or considered by the AOJ, the claims must be returned to the AOJ for full consideration of the evidence of record and for the issuance of a supplemental statement of the case. 38 C.F.R. § 19.31(b) (2017). The matter is REMANDED for the following action: Readjudicate the issues on appeal, to include consideration of relevant evidence received following the January 2016 statement of the case. If any benefits sought are not granted, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. (Continued on the next page)   K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. R. Woodarek, Associate Counsel