Citation Nr: 18146623 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 14-38 805A DATE: October 31, 2018 ORDER New and material evidence having not been presented, the application to reopen the previously denied claim of entitlement to service connection for diabetes mellitus, type 2, to include as due to herbicide exposure, is denied. FINDINGS OF FACT 1. In an August 2011 rating decision, the RO denied the claim of service connection for diabetes mellitus, type 2, to include as due to herbicide exposure. The Veteran did not timely appeal this decision nor did he submit new and material evidence within the one-year appeal period. 2. The evidence added to the record since the August 2011 rating decision does not relate to an unestablished fact that is necessary to substantiate the claim of service connection for diabetes mellitus, type 2, to include as due to herbicide exposure. CONCLUSIONS OF LAW 1. The August 2011 rating decision that denied the Veteran’s claim for entitlement to service connection for diabetes mellitus, type 2, to include as due to herbicide exposure, is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. As the evidence received subsequent to the August 2011 rating decision is neither new nor material, the requirements to reopen the claim for entitlement to service connection for diabetes mellitus, type 2, to include as due to herbicide exposure, have not been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.102, 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army on active duty from October 1965 to April 1968, including a tour of duty in Korea. New and Material Evidence In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulation, “new” evidence is defined as 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. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). 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). However, for the purpose of establishing whether new and material evidence has been received, the credibility of such evidence is to be presumed unless “patently incredible.” See Duran v. Brown, 7 Vet. App. 216 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). After a review of the evidence submitted since the August 2011 rating decision became final, the Board determines that reopening the claim for service connection for diabetes mellitus, type 2, to include as due to herbicide exposure, is not warranted. In this case, the Veteran is claiming entitlement to service connection for diabetes mellitus, type 2, to include as due to herbicide exposure. The Veteran’s service claim was previously denied by the RO in August 2011 on the basis that it was not caused by or incurred in service, that there was no evidence that it was diagnosed within one year of separation from active duty, and that there was no evidence of herbicide exposure. The Veteran did not appeal this decision, nor did he submit any new and material evidence within a year of receiving it. See Buie v. Shinseki, 24 Vet. App. 242 (2011). This represents the last final denial of this claim. Under 38 C.F.R. § 3.156 (c), if at any time after VA issues a decision on a claim, 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, then VA will reconsider the claim, notwithstanding the provisions of 38 C.F.R. § 3156 (a). The Board acknowledges that additional evidence has been associated with the claims file since the August 2011 rating decision, including VA treatment records received in September 2016, military personnel records received in October 2013, and a report of accidental injury form received in April 2014. However, the Board has reviewed these records and finds that they are not relevant and/or are duplicative or cumulative of the evidence of record. Specifically, the Veteran’s VA treatment records were duplicative of the diabetes treatment of record, the military personnel records were irrelevant information regarding the Veteran’s discharge from the Army Reserve, and the report of accidental injury form was irrelevant information regarding an automobile accident in which the Veteran was involved. Thus, these records do not constitute new nor material evidence Further, the Appellate Brief submitted by the Veteran’s Service Organization representative is also duplicative of the evidence of record. The Brief specifically states that it was feasible for the Veteran to leave Korea and be discharged in the United States all on the same date, April 3, 1968, due to the crossing of the international date line. The Brief intends to clarify that the Veteran was in fact in Korea on April 3, 1968, which is three days within the window for potential herbicide exposure. 38 C.F.R. § 3.307(a)(6)(iv). The Brief also stated that the Veteran’s unit is one acknowledged by the VA as serving in the DMZ. However, in the August 2011 rating decision, the RO conceded that the Veteran was indeed in Korea during the applicable herbicide exposure window. The basis for the denial of service connection was not based on if the Veteran was in Korea within the herbicide agent window. Rather, the claim was denied because the Veteran’s unit is in fact not one acknowledged by the VA to have presumed herbicide exposure. Further, the Veteran’s service records showed that he was stationed at Camp Casey, which was thirteen miles behind the DMZ, and the Veteran did not make any statements claiming that his service actually took him to the DMZ. Therefore, the evidence submitted in the Appellate Brief is merely recitations of evidence already in the record and does not constitute new nor material evidence. See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992).   Therefore, as evidence that is both “new” and “material” has not been submitted, there is no basis to reopen the previously denied claim for diabetes mellitus, type 2, to include as due to herbicide exposure. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Page-Nelson, Associate Counsel