Citation Nr: 18149943 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 15-00 755 DATE: November 14, 2018 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for diabetes mellitus, type II. REMANDED Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for diabetic retinopathy is remanded. Entitlement to service connection for peripheral neuropathy is remanded. FINDINGS OF FACT 1. A March 2005 rating decision denied the Veteran’s entitlement to service connection for diabetes mellitus. He did not perfect an appeal by filling a substantive appeal in response to the June 2006 Statement of the Case. Therefore, the March 2005 rating decision is final. 2. Evidence received subsequent to the March 2005 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim. CONCLUSION OF LAW New and material evidence has been presented to reopen the claim of entitlement to service connection for diabetes mellitus. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from May 1969 to February 1973. 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for diabetes mellitus. Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (2012). “New” evidence is defined as existing evidence not previously submitted to agency decision-makers. “Material” evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a) (2018). The threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran’s claim for diabetes mellitus in last denied in a March 2005 rating decision, on the basis that his diabetes mellitus was not incurred during or otherwise related to active service. The Veteran submitted a notice of disagreement in May 2005. While a statement of the case was issued in June 2006, the Veteran did not perfect his appeal by filling a substantive appeal. Accordingly, March 2005 rating decision is final. 38 C.F.R. § 20.302 (2018). In March 2013, the Veteran filed a petition to reopen his claim of entitlement to service connection for diabetes mellitus. The evidence received since the March 2005 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156 (2018). For example, the Veteran submitted lay statements regarding his in-service herbicide agent exposure as well as documents regarding the presence of herbicides and other toxic chemicals in Guam. This new evidence addresses the reason for the previous denial; that is, an in-service event, injury, or disease, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus is remanded. 2. Entitlement to service connection for diabetic retinopathy is remanded. 3. Entitlement to service connection for peripheral neuropathy is remanded. The evidence indicates there may be outstanding relevant VA treatment records. A VA treatment record from May 5, 2014 indicates that the Veteran was to return for follow up appointment in August 2014. VA treatment records subsequent to May 20, 2014 have not been associated with the claims file. A remand to obtain updated records is required. Having reopened the Veteran’s diabetes claim, the Board finds that additional development is required. The Veteran asserts that his diabetes mellitus, diabetic retinopathy, and peripheral neuropathy are related to his in-service exposure to herbicide agents and other toxic chemicals. Specifically, the Veteran stated that his exposure occurred while he was stationed at the Naval Communications Station Guam (NCS) from June 1970 to December 1971. He submitted various documents in support of his contention that the water was contaminated with toxic chemicals. He also asserted that he was exposed to such chemicals while visiting Andersen Air Force Base in Guam. He explained that NCS was a small base without a commissary and that he visited the adjacent Andersen Air Force Base for all his shopping and entertainment needs. The Veteran also submitted documents indicating that the two military bases shared an aquifer, which resulted in contaminated water supply. While the record contains a February 2014 Joint Services Records Research Center (JSRRC) response regarding the Veteran’s reported exposure at NCS, it does not appear that the AOJ attempted to verify the Veteran’s reported exposure at Andersen Air Force Base (AFB). Accordingly, a remand is required to verify the Veteran’s reported exposure. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain updated VA treatment records dated since May 20, 2014. If any requested records are unavailable, the Veteran should be notified of such. 2. Attempt to verify the Veteran’s asserted in-service exposure to herbicide agents while visiting Anderson AFB. If more details are needed, contact the Veteran to request the information. If there is still insufficient information to verify exposure to herbicide agents, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA's inability to verify the in-service herbicide agent exposure. 3. Forward the claims file to a VA clinician to obtain an addendum opinion regarding the Veteran’s diabetes, peripheral neuropathy, and diabetic retinopathy. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the clinician should opine whether it is at least as likely as not (50 percent probability or greater) that his diabetes mellitus, peripheral neuropathy, or diabetic retinopathy had its onset during service or is otherwise related to service, including his reported exposure to toxic chemical (other than herbicide agents such as Agent Orange) at NCS and Andersen AFB. In so opining, the clinician should address the treatise evidence of record regarding chemical contamination at NCS and Andersen AFB. A complete rationale should be provided for all opinions and conclusions expressed. J. A. Anderson Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. N. Nolley, Associate Counsel