Citation Nr: 18146372 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-36 095 DATE: October 31, 2018 ORDER New and material evidence has not been submitted and the claim to reopen service connection for type 1 diabetes mellitus (type 1 diabetes) is denied. REMANDED The increased compensable rating for bilateral hearing loss is remanded. FINDING OF FACT No new and material evidence has been submitted since the last, final November 2011 rating decision that denied service connection for type 1 diabetes. CONCLUSION OF LAW The criteria to reopen service connection for type 1 diabetes have not been met. 38 U.S.C. §§ 5108, 7105 (West 2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1975 to October 1978. This appeal comes before the Board of Veterans’ Appeals (Board) from March 2015 and October 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. New and Material Evidence to Reopen Type 1 Diabetes Claim VA may reopen and review 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 (West 2012); 38 C.F.R. § 3.156(a) (2017); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is new. New evidence is that which was not of record at the time of the last final disallowance on any basis of the claim, and is not merely cumulative of other evidence that was then of record. 38 C.F.R. § 3.156(a). That analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The Board must review all evidence submitted by or on behalf of a claimant since the last, final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 510 – 513 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Veteran’s service connection claim for type 1 diabetes was last denied in a November 2011 rating decision because the RO determined that the Veteran did not have a diagnosis of diabetes and there was no evidence of treatment, complaints or a diagnosis of diabetes mellitus in service. Following the decision, the Veteran did not perfect an appeal or otherwise submit new and material evidence. As such, the November 2011 decision became final. 38 U.S.C. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). Evidence received since the November 2011 rating decision, includes medical evidence of a current diagnosis of type 1 diabetes, and lay assertions from the Veteran that his type 1 diabetes is due to contaminated drinking water at Camp Lejeune. While these additional pieces of evidence are “new”, they are not material evidence because they do not present proof of an unestablished fact from the November 2011 rating decision, namely, evidence of treatment, complaints or a diagnosis of diabetes mellitus in service or an indication that the disability is related to service. Diabetes is not a disease that is presumed to be associated with contaminated drinking water at Camp Lejeune. Thus, the evidence does not trigger VA’s duties to assist the Veteran in further substantiating the claim and the claim to reopen must be denied. REASONS FOR REMAND The Board regrets further delay but finds that additional developments are necessary before a decision may be rendered on the remaining issue on appeal. Bilateral Hearing Loss Increased Compensable Rating Claim The Veteran suggests that his hearing loss has deteriorated and that the current symptoms of hearing loss present a greater degree of impairment than currently reflected. However, the Board is unable to determine the current severity of his bilateral hearing loss because there are no recent medical records for his hearing loss. Specifically, he has not undergone a VA examination for hearing loss in 6 years (April 2012), and the most recent treatment record that has been associated with his claims files is from June 22, 2016. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994) (finding that the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); VAOPGCPREC 11-95 (1995). Therefore, a remand is required for the RO to obtain and associate his most recent treatment records with the claims file, and to schedule the Veteran for a contemporaneous VA examination on the current severity of his hearing loss. The matter is REMANDED for the following action: 1. Obtain the requisite authorization and release from the Veteran and obtain all outstanding private and VA treatment records and associate them with the claims file, especially VA treatment records from June 23, 2016 to current. (Continued on the next page)   2. After obtaining all private and VA treatment records and associating them with the claims file, schedule the Veteran for a VA examination with an audiologist to determine the current severity of the Veteran’s bilateral hearing loss. Matthew Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD V-N. Pratt, Associate Counsel