Citation Nr: 18145297 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 14-40 669 DATE: October 26, 2018 ORDER As new and material evidence has not been received, the Veteran’s petition to reopen his service connection claim for diabetes mellitus is denied. REMANDED The claim for entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. In a final decision dated in November 2011, the RO denied the Veteran’s claim of entitlement to service connection for diabetes mellitus. The Veteran did not perfect a timely appeal of that rating decision, so it became a final and binding determination based on the evidence then of record. 2. The Veteran attempted to reopen the claim for entitlement to service connection for diabetes mellitus and was most recently denied in a final September 2012 rating decision. 3. The evidence received since that September 2012 rating decision does not relate to an unestablished fact necessary to substantiate the service connection claim and/or is cumulative or redundant of evidence previously of record; therefore, it is not new and material. CONCLUSION OF LAW As new and material evidence has not been received, the criteria have not been met to reopen the claim of entitlement to service connection for diabetes mellitus. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.104, 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1971 to November 1991. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a hearing at the RO in October 2016. A transcript of the hearing is included in the claims file, so is of record. 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for diabetes mellitus. The Veteran contends that the record contains new and material evidence sufficient to reopen a previously denied claim of entitlement to service connection for diabetes mellitus. In a rating decision issued in November 2011, the agency of original jurisdiction (AOJ) denied the Veteran’s claim of entitlement to service connection for diabetes mellitus. Review of this rating decision indicates that the AOJ denied the Veteran’s claim based on the lack of a “nexus” between the claimed diabetes and his service. The AOJ specifically noted the finding of elevated blood sugar levels during active duty, but also observed that a diagnosis of diabetes mellitus was ruled out at that time. The AOJ also denied the claim for service connection on a direct and presumptive basis as the evidence did not establish the Veteran’s service in the Republic of Vietnam and exposure to herbicide agents. The Veteran was notified of this denial and of his appellate rights, but did not appeal the November 2011 decision, or submit new and material evidence within one year of the denial; thus, this rating decision became final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 20.302, 20.1103. Generally, an unappealed decision by the AOJ is final. See 38 C.F.R. § 20.1103. However, a veteran may request that VA reopen a claim upon the receipt of “new and material” evidence. 38 U.S.C. § 5108. If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. Id. New evidence is defined as existing evidence that was not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the prior final denial, and it must raise a reasonable possibility of substantiating the claim. Id. 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 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purposes of reopening a claim, the evidence is presumed credible unless it is inherently false, or if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). After the November 2011 rating decision, the Veteran attempted to reopen his claim for entitlement to service connection for diabetes mellitus and was denied in a final September 2012 rating decision. In that decision, the AOJ confirmed and continued the previous denial of the claim on the basis that the evidence did not establish the Veteran’s exposure to herbicide agents. The AOJ specifically noted that the evidence did not establish that the Veteran served on naval vessels that were docked in Vietnam, travelled into the inland waterways, or that the Veteran went ashore to Vietnam. Again, the Veteran did not appeal the denial of his claim or submit new and material evidence within one year of the denial. The evidence received since the September 2012 rating decision includes medical treatment records from the VA Medical Center (VAMC), and lay statements and testimony from the Veteran. This evidence is new as it was not of record at the time of September 2012 rating decision, but it is not material as it does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of establishing the claim. The new medical treatment records document the Veteran’s ongoing treatment for diabetes mellitus, but do not contain any evidence of a link between the Veteran’s disability and active service, to include on the basis of exposure to an herbicide agent. Turning to the Veteran’s new lay statements, including correspondence from the Veteran in November 2013, his April 2014 notice of disagreement, and October 2016 hearing testimony, the Board finds that this evidence is cumulative or redundant of the evidence previously of record. The Veteran contends that service connection is warranted for diabetes mellitus as it is related to his exposure to herbicide agents during active duty service. The Veteran specifically contends that he was exposed to herbicide agents while serving aboard the USS HANCOCK and USS CORAL SEA in a deep-water harbor of Vietnam. The Veteran testified in October 2016 that he was exposed to herbicide agents through the supplies brought aboard ship from Vietnam, to include food, water, and ammunition. These contentions are duplicative of those made by the Veteran in support of his previously denied claims for service connection for diabetes mellitus. For example, in an October 2011 statement, the Veteran reported that his belief that he was exposed to herbicide agents while serving on the USS HANCOCK and USS CORAL SEA off the coast of Vietnam due to food, people, and equipment that was brought aboard from the mainland. Therefore, his current contentions are duplicative of arguments made in support of the previously denied claims. The Board has carefully and specifically considered the implications of Shade, but none of the evidence added to the record raises a reasonable possibility of substantiating the claim or would at least trigger the VA’s duty to assist by providing a medical opinion. The competent evidence does not indicate that the Veteran’s diabetes mellitus is etiologically related to active service, to include on the basis of exposure to herbicide agents. And, as noted above, the Veteran’s statements are cumulative and redundant of evidence previously of record. Thus, the Board finds that new and material evidence has not been submitted to allow for reopening of the claim. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. The Veteran contends that entitlement to a TDIU is warranted as he is unable to maintain substantially gainful employment due to his service-connected low back disability and associated radiculopathy of the right lower extremity. The Veteran testified in October 2016 that he resigned from his position as a supervisor in the admissions office of a community college soon after he was diagnosed with diabetes mellitus in January 2011. However, he also testified that he is unable to work due to pain and functional impairment related to his service-connected low back disability. He further testified that his lumbar spine condition worsened in severity since it was last examined by VA in February 2015. Although the Veteran does not meet currently meet the schedular criteria for an award of TDIU under 38 C.F.R. § 4.16(a), the claims file contains competent evidence indicating that he may be unable to follow a substantially gainful occupation due to service-connected disability. Specifically, in January 2015, a VA Vocational Rehabilitation and Employment (VR&E) counselor concluded that the Veteran’s service-connected disabilities substantially contributed to his vocational impairment and the Veteran would not benefit from VA VR&E programs. The record also contains the Veteran’s competent statements detailing the functional impairment associated with his service-connected disabilities. Therefore, the claim must be referred to the Director of Compensation and Pension in accordance with 38 C.F.R. § 4.16(b) to determine whether TDIU based on extraschedular consideration is appropriate. The Board itself may not assign an extraschedular rating in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (recognizing that “the [Board] is not authorized to assign an extraschedular rating in the first instance under 38 C.F.R. § 3.321(b)” or § 4.16(b)); accord Smallwood v. Brown, 10 Vet. App. 93, 98 (1997); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996). The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine disability and radiculopathy. The examiner should provide a full description of the disability and report all signs and symptoms. To the extent possible, the examiner should identify any symptoms and functional impairments due to the lumbar spine disability and radiculopathy and discuss the effect of these disabilities on any occupational functioning and activities of daily living. (Continued on the next page)   2. Then, refer the Veteran’s claim for TDIU to the Director of Compensation and Pension Service pursuant to the provisions of 38 C.F.R. § 4.16(b) for consideration of whether TDIU is warranted on an extraschedular basis. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Riley, Counsel