Citation Nr: 18150778 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 17-09 794 DATE: November 15, 2018 ORDER New and material evidence has been received to reopen a previously denied claim of service connection for diabetes mellitus, and the application to reopen is allowed; to this extent only, the claim is granted. REMANDED Entitlement to service connection for diabetes mellitus, claimed as due to exposure to toxic chemicals and/or as a result of experimental immunization received during service, is remanded. Entitlement to service connection for kidney failure, to include as secondary to diabetes mellitus, is remanded. FINDINGS OF FACT 1. In an unappealed April 2007 rating decision, the RO denied the Veteran’s original claim for service connection for diabetes mellitus. 2. Evidence received since the final April 2007 rating decision is new and material, and raises a reasonable possibility of substantiating the claim of service connection for diabetes mellitus. CONCLUSIONS OF LAW 1. The April 2007 rating decision denying service connection for diabetes mellitus is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.105(a), 20.302, 20.1103 (2017). 2. The additional evidence received since the April 2007 rating decision is new and material, and the claim of service connection for diabetes mellitus is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1969 to February 1970. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence 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). The claimant has one year from notification of a RO decision to initiate an appeal by filing a NOD with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302 (2017). If the Board issues a decision on appeal, confirming the RO’s decision, then the Board’s decision subsumes the RO’s decision on the same issue at hand. 38 C.F.R. § 20.1104. Moreover, if the Board’s decision is not timely appealed, then it, too, is final and binding based on the evidence then of record. 38 C.F.R. § 20.1100. An exception to the finality rule is found in 38 U.S.C. § 5108, which provides that, if new and material evidence is received with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 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. Anglin v. West, 203 F.3d 1343, 1347 (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.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Here, the RO denied the Veteran’s service connection claim for diabetes mellitus in an April 2007 rating decision, finding that the Veteran’s theory that his diabetes was caused by overdose of Prednisone was not supported by the evidence of record, and there was no nexus between his diabetes and his active duty service. The evidence considered at the time included the Veteran’s original application for compensation, his service treatment records, and private treatment records. The Veteran did not appeal the decision, and new and material evidence was not received within one year of the decision. Thus, the April 2007 rating decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Relevant evidence received since the April 2007 denial of the claim, includes the Veteran’s petition to reopen his claim for diabetes, additional private treatment records, medical literature, and argument made by the Veteran’s attorney regarding possible outstanding medical treatment records and the nature and etiology of his diabetes. The Board finds that the Veteran has offered multiple new theories of entitlement; namely, that his diabetes was caused by exposure to toxic chemicals and or as a result of experimental anti-viral immunization he received during service. The Court has held that a new etiological theory does not constitute a new claim. Velez v. Shinseki, 23 Vet. App. 199 (2009); Ashford v. Brown, 10 Vet. App. 120, 123 (1997); Roebuck v. Nicholson, 20 Vet. App. 307 (2006). However, while a new theory of entitlement cannot be the basis to reopen a claim under 38 U.S.C. 7104(b), if the evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim under section 5108. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). Here, the Board resolves all doubt in the Veteran’s favor in finding that the new theories of entitlement is sufficient evidence, which raises a reasonable possibility of substantiating the claim of service connection for diabetes mellitus. The Veteran’s October 2013 statement, outlining his symptoms after immunizations shots during service constitute new and material evidence. The additional evidence received since the April 2007 final denial is therefore new and material, and the criteria for reopening the claim for service connection for diabetes mellitus are therefore met. REASONS FOR REMAND The Board finds that a remand is necessary to attempt to obtain possibly outstanding service treatment records and to provide the Veteran with VA examinations to determine the nature and etiology of his diabetes mellitus and kidney failure. Here, the Veteran raised multiple theories of entitlement. Initially, he stated that despite not being treated for diabetes in-service, he fell from a ladder after passing out from the fumes of an unknown chemical spill, leading to hospitalization and treatment with high dosages of Prednisone, which he believed cause his diabetes. He later stated that the dizziness leading to him passing out was due to fumes and due to a diagnosis of fluids in his lungs he was treated with large doses of Prednisone. Thereafter, he indicated that he received a “viral shot” that caused him to pass out, and he later found this was part of experimental drug, which caused him to have flu like symptoms since service and was the beginning of his diabetes. Lastly, the Veteran’s attorney also raised the possibility that he was exposed to toxic chemicals during service. The Board notes that the Veteran’s service treatment records indicate that he participated in Medical Research Project Number MF 022.03.07-4018, Antiviral Drugs in the Prevention of Respiratory Disease in Naval Recruits. Although the record states that no physical or psychological reactions were noted, it is reasonable to assume that records of the Veteran’s psychological condition prior to and following the experiment may have been recorded. The record notes that permanent records of the study were to be retained. As such, an attempt is to be made to obtain the records. Regarding his claim for kidney failure, it appears that the Veteran claims the same theory of entitlement, although in one statement he indicated that he suffered from diabetes which resulted in his kidney failure. As such, the Board finds that entitlement on secondary basis was reasonably raised by the record. Notably, the Veteran was not provided with VA examinations for his claims. Given the evidence of a current disability and his competent reports of exposure to toxic chemicals and his documented participation experimental immunization during service, the Board finds that a VA examination is necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following actions: 1. Contact all pertinent records repositories to determine whether any additional military personnel and service treatment records are available. Specifically, records related to his participation in Medical Research Project Number MF 022.03.07-4018, Antiviral Drugs in the Prevention of Respiratory Disease in Naval Recruits. Please note, currently, there are no military personnel records on file. 2. Contact all pertinent records repositories to determine whether any documentation is available regarding the chemicals present abroad the USS independence at the time of the Veteran’s service. 3. Ensure that all outstanding VA treatment records since March 2017 are associated with the claims file. 4. Then, regardless if new evidence is received, provide the Veteran with a VA examination by an appropriate examiner to determine the nature and etiology of his diabetes mellitus and kidney failure. The claims file and a copy of this Remand must be made available to the examiner, and the examiner shall indicate in the examination report that the claims file was reviewed. The examiner should address the following: (a) To the extent possible, determine the date of onset of the Veteran’s diabetes mellitus and kidney failure. In doing so, please review his service treatment records, July 1981 VA examination, private medical treatment records associated with the claims file beginning in May 2006, and VA treatment records. (b) Provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s diabetes or kidney failure had its onset during his period of active duty service, including his reports of exposure to chemicals and receiving treatment with Prednisone. (c) If it is determined that the Veteran’s diabetes is related to his active duty service, provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that his kidney failure was caused by or aggravated by his diabetes. In doing so, please address medical literature provided by the Veteran, entries dated on: (i) 06/23/1981, titled “STR – Medical” p.16, discussing study MF 022.03.07-4018 (ii) 02/22/2006, titled “Web/HTML Documents,” regarding the relationship between Prednisone and diabetes; (iii) 04/03/2007, titled “Medical Treatment Records – Non-Government Facility” showing family history of diabetes; (iv) 02/17/2017, titled “Correspondence,” discussing numerous medical conditions related to certain chemicals during the Vietnam War; (v) 04/11/2017, titled “CAPRI” some which show family history of diabetes and some that indicate the Veteran was the only family member with diabetes. The examiner should provide a complete rationale for all opinions, on direct, causation, AND aggravation. 5. Thereafter, readjudicate the claims on appeal. ROMINA CASADEI Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel