Citation Nr: 18150508 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 15-12 157 DATE: November 15, 2018 ORDER New and material evidence sufficient to reopen the claim of entitlement to service connection for a back injury has not been received; the claim to reopen is denied. New and material evidence sufficient to reopen the claim of entitlement to service connection for bilateral pes planus has not been received; the claim to reopen is denied. New and material evidence sufficient to reopen the claim of entitlement to service connection for frostbite to hands and feet has not been received; the claim to reopen is denied. New and material evidence sufficient to reopen the claim of entitlement to service connection for schizophrenia has not been received; the claim to reopen is denied. New and material evidence sufficient to reopen the claim of entitlement to service connection for diabetes mellitus has been received. Entitlement to service connection for diabetes mellitus is denied. FINDINGS OF FACT 1. An unappealed March 2009 rating decision denied entitlement to service connection for diabetes and frostbite, and declined to reopen the issues of entitlement to for residuals of a back injury, pes planus, and paranoid schizophrenia. 2. Evidence submitted since the final March 2009 rating decision does not raise a reasonable possibility of substantiating the appellant’s claims of entitlement to service connection for frostbite, residuals of a back injury, pes planus and paranoid schizophrenia. 3. Evidence submitted since the final March 2009 rating decision raises a reasonable possibility of substantiating the appellant’s claim of entitlement to service connection for diabetes mellitus. 4. Diabetes mellitus was not demonstrated inservice, it was not compensably disabling within a year of separation from active duty, and it is not otherwise related to the appellant’s active duty service. CONCLUSIONS OF LAW 1. The March 2009 rating decision is final; new and material evidence has not been received to reopen the claims of entitlement to service connection for frostbite, residuals of a back injury, pes planus, and paranoid schizophrenia. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156 (a). 2. The March 2009 rating decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection for diabetes. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156 (a). 3. Diabetes mellitus was not incurred or aggravated inservice, and it may not be presumed to have been so incurred. 38 U.S.C. §§ 1131, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served from March 1 to April 21, 1977. This case is before the Board of Veterans’ Appeals (Board) from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In March 2018, the appellant testified before the undersigned at a videoconference hearing. With respect to the appellant’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. New and Material Evidence In a March 2009 rating decision VA denied entitlement to service connection for diabetes and frostbite, and declined to reopen the issues of entitlement to service connection for residuals of a back injury, pes planus, and paranoid schizophrenia. The claimant was informed of that decision, and while he filed a timely notice of disagreement, the appellant did not file a timely substantive appeal. As such, the March 2009 rating decision is final. 38 U.S.C. § 7105. Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104 (a). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. Under applicable regulations, 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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). Pes planus, frostbite, paranoid schizophrenia, residuals of a back injury, diabetes In a March 2009 rating decision VA denied entitlement to service connection for diabetes and frostbite, and declined to reopen the issues of entitlement to for residuals of a back injury, pes planus, and paranoid schizophrenia. VA found that pes planus existed prior to service and was not aggravated therein, that neither schizophrenia nor a back disorder were demonstrated inservice, and that the appellant did not have either diabetes or frostbite of the hands and feet. The evidence available in March 2009 included the appellant’s service treatment records which showed no complaints, findings or diagnoses of either frostbite, paranoid schizophrenia, residuals of a back injury, or diabetes. The service treatment records did show that the appellant suffered from pes planus, however, a medical board specifically found that the appellant’s feet did not meet the medical fitness requirements for service, that pes planus existed prior to service, and that pes planus was not aggravated inservice. Also available in March 2009 was a June 1980 VA compensation examination report. That study revealed a normal lumbar spine, and first-degree pes planus. The examination did not reveal evidence of a diagnosed back disorder, diabetes, frostbite or schizophrenia. Finally, the record in March 2009 included voluminous VA treatment records which showed that the appellant had low back pain, pes planus, paranoid type schizophrenia, a schizoaffective disorder, a passive-aggressive personality disorder, as well as cocaine, alcohol and cannabis dependence. There was no competent evidence that the appellant suffered from diabetes or residuals of frostbite. Most notably, none of the competent evidence available in March 2009 included a medical opinion linking any claimed disorder to service. Since March 2009, the appellant has submitted additional VA treatment records which show that the he suffers from pes planus, chronic low back pain, and schizophrenia. There remains no evidence that the appellant suffers from residuals of frostbite. There is new and material evidence showing that the appellant suffers from diabetes. As such, that claim is reopened. 38 C.F.R. § 3.156. There is, however, no competent medical evidence that any claimed disorder is related to service. Given these facts, the Board finds that while the claim of entitlement to service connection for diabetes must be reopened, that new and material evidence has not been submitted to reopen any other claim. The Board considered the appellant’s testimony but the claimant’s is not material to the bases which formed the prior denials. Although his statements are new, they are not material in that they do not raise a reasonable possibility of substantiating the appellant’s claim for service connection. Accordingly, the additional evidence received since March 1980 rating decision is not new and material and the claim may not be reopened. Until the appellant meets his threshold burden of submitting new and material evidence sufficient to reopen his claim, the benefit of the doubt doctrine does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Diabetes mellitus As noted above, the claim of entitlement to service connection for diabetes mellitus has been reopened. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Certain chronic diseases, including diabetes mellitus, will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). Although the appellant has submitted new evidence of a current disability leading to his claim being reopened, there remains is no competent evidence that the appellant suffered from diabetes mellitus while in service, or competent evidence showing that diabetes mellitus was compensably disabling within a year following separation from active duty. Moreover, the appellant has not submitted any competent medical opinion evidence linking diabetes to military service performed for about two months more than 40 years ago. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board acknowledges the appellant’s contentions that he his diabetes was caused by a starch heavy diet provided during his almost short term of service, but as a layperson untrained in the field of medicine he is not competent to diagnose the specific etiology of his diabetes. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). There is no other competent or credible evidence linking diabetes to the appellant’s period of service. The claim must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joseph Montanye, Associate Counsel