Citation Nr: 18154998 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-53 845 DATE: December 4, 2018 ORDER Whether new and material evidence has been received to reopen the claim of entitlement to service connection for diabetes mellitus, to include as a result of exposure to herbicides, is denied. REMANDED Entitlement to a disability rating greater than 10 percent for service-connected healed triquetrum fracture of the right wrist is remanded. Entitlement to a disability rating greater than 30 percent for service-connected posttraumatic headaches with dizziness is remanded. FINDINGS OF FACT 1. By rating action dated in January 2011, the RO denied service connection for diabetes mellitus; the Veteran did not timely appeal the decision and new and material evidence was not received within the applicable appeal period. 2. Evidence received since the January 2011 rating decision does not relate to unestablished facts necessary to substantiate the claim of service connection for diabetes mellitus, and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The unappealed January 2011 rating decision that denied service connection for diabetes mellitus is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence not having been received, the claim of entitlement to service connection for diabetes mellitus is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1971 to July 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Albuquerque, New Mexico. In the October 2016 Appeal To Board Of Veterans’ Appeals (VA Form 9) the Veteran indicated that he wished to be scheduled for a Board hearing in Washington, DC. In December 2016, he withdrew his request for a hearing. 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for diabetes mellitus, to include as a result of exposure to herbicides 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. § 1110; 38 C.F.R. § 3.303. Certain chronic diseases, to include 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; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iii). If a Veteran was exposed to an herbicide agent during active service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307 (d) are also satisfied. See 38 C.F.R. § 3.309 (e). Diseases presumptively associated with such exposure include Type II diabetes mellitus or adult-onset diabetes. 38 C.F.R. § 3.309 (e). Such disease shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307 (a)(6)(ii). In addition, a Veteran may establish service connection based on exposure to an herbicide agent with proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997). Although a decision is final, a claim will be reopened if new and material evidence is received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New and material evidence can be neither cumulative, nor redundant, of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. “New” evidence means existing evidence not previously submitted to VA. “Material” evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an un-established fact necessary to substantiate the claim. See 38 C.F.R. § 3.156 (a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). If the claim is reopened, it will be reviewed on a de novo basis. 38 U.S.C. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 273, 282-83 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). The Veteran asserts that he has developed diabetes mellitus as a result of exposure to herbicides during his period of active service while stationed at Fort Polk, Louisiana. By rating action dated in January 2011, the RO, in pertinent part, denied service connection for diabetes mellitus. The Veteran did not timely perfect an appeal of that decision and new and material evidence was not received within one year of issuance. Thus, the January 2011 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. The Veteran filed a new claim for service connection in October 2014, and by rating action dated in February 2015, the RO determined that new and material evidence had not been received to reopen the previously denied claim. The evidence of record at the time of the January 2011 rating decision included the Veteran’s service treatment records that did not show any diagnosis of or symptoms associated with diabetes mellitus. A statement from the Veteran received in September 2010 asserted that he had been exposed to herbicides during service at Fort Polk, Louisiana. He explained that he had been a part of several duty details that loaded barrels that were leaking onto a truck. He described the barrels as green with orange stripes, not gasoline barrels, and not labeled flammable. He added that he was exposed to sticky greasy film on his hands, and then developed a rash on his hands which medics attributed to exposure to poison oak. VA outpatient treatment records dated from December 2002 to November 2010 showed intermittent treatment for symptoms associated with diabetes mellitus. There was no opinion linking the Veteran’s diabetes mellitus to active service. A VA examination report dated in November 2010 showed that the Veteran was taking medication for diabetes mellitus, but there was no opinion relating the diabetes mellitus to active service. As there was no evidence of diabetes mellitus in the Veteran’s service treatment records, and as there was no link of the current diabetes mellitus to active service, the RO denied service connection in the January 2011 decision. Subsequent to the January 2011 rating decision, the evidence of record has included additional VA outpatient treatment records that show ongoing intermittent treatment for symptoms associated with diabetes mellitus. There is no additional opinion of record attributing the diabetes mellitus to active service. There is no additional evidence of record showing that the diabetes mellitus had become manifested to a compensable degree within one year following separation from active service. There is also no additional evidence to establish that the Veteran was exposed to tactical herbicide agents during his period of active service. The Board finds that the additional evidence added to the record does not constitute new and material evidence. While it is new, as it was not previously of record when the prior decision was made, it does not establish that the Veteran’s diagnosed diabetes mellitus was the result of active service. As such, the additional evidence is not material as it does not by itself, or when considered with previous evidence of record, relate to an un-established fact necessary to substantiate the claim. Therefore, the issue of service connection for diabetes mellitus may not be reopened, and the claim must be denied. REASONS FOR REMAND 2. The issues of entitlement to increased disability ratings for service-connected healed triquetrum fracture of the right wrist and for service-connected posttraumatic headaches with dizziness are remanded. The Veteran’s most recent VA examination of his service-connected right wrist and headache disabilities was conducted in February 2015. In the February 2016 notice of disagreement, the Veteran asserted that his right wrist disability was now manifested by rheumatoid arthritis, and that his headache disability had worsened. This was reiterated in his October 2016 VA Form 9, and also by the Veteran’s representative in the July 2018 Appellant’s Brief. In light of the Veteran’s contentions of an increase in disability since the most recent VA examinations, the Board finds that new examinations are required in order to assess the current degrees of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Allday v. Brown, 7 Vet. App. 517, 526 (1995). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination of the current severity of his service-connected right wrist disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the right wrist alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Schedule the Veteran for an examination of the current severity of his service-connected headache disability. The examiner must comment on the nature, frequency, and severity of the Veteran’s headaches, and specifically address the frequency, severity, and duration of any prostrating attacks. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the headaches alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. (Continued on the next page)   If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel