Citation Nr: 18155932 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 17-35 362 DATE: December 6, 2018 ORDER New and material evidence not having been submitted, the claim of entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for diabetes mellitus is denied. REMANDED Entitlement to a compensable rating for a right shoulder disability is remanded. FINDINGS OF FACT 1. The RO denied the Veteran’s claim of entitlement to service connection for right ear hearing loss in an October 2003 rating decision. The Veteran was notified of the decision but he did not file an appeal, and the claims are final. 2. Evidence added to the record since the October 2003 rating decision is either cumulative or redundant of evidence previously considered, or does not relate to an unestablished fact necessary to substantiate the claim for service connection for right ear hearing loss. 3. The preponderance of the evidence is against finding that the Veteran has diabetes mellitus due to a disease or injury in service, to include a specific in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The October 2003 rating decision which denied entitlement to service connection for right ear hearing loss is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. New and material evidence has not been received in order to reopen the claim of entitlement to service connection for right ear hearing loss. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for service connection for diabetes mellitus are not met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1977 to August 1978 and from April 1996 to July 2003. New and Material Evidence 1. Right ear hearing loss The Veteran’s claim of entitlement to service connection for right ear hearing loss was previously denied in an October 2003 rating decision. The Veteran did not appeal this rating decision. As such, the October 2003 decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The 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, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing 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. 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. 38 C.F.R. § 3.156(a). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran filed a petition to reopen this claim in August 2014. The August 2015 rating decision currently on appeal continued the denial of this claim. In previously denying the Veteran’s claim for service connection for right ear hearing loss in the October 2003 rating decision, the evidence of record included the Veteran’s service treatment records that showed right ear hearing loss for VA purposes at entrance; a May 2003 VA audiological examination; and, the Veteran’s statements in support of this claim stating his right ear hearing loss worsened as a result of his service. The RO denied the claim on the basis there was no evidence showing the Veteran’s military service aggravated his right ear hearing loss. The evidence received since the last prior final denial of the claim in October 2003 relevant to this claim includes VA and private treatment records, a May 2015 VA audiological examination, and additional statements by the Veteran in support of his claim. The treatment records do not contain any etiological opinions that show the Veteran’s right ear hearing loss was aggravated by his military service. Additionally, the May 2015 VA examination also failed to show the Veteran’s right ear hearing loss was aggravated beyond its normal progression during his miliary service. Consequently, there is no evidence of record indicating the Veteran’s military service resulted in an increase in disability/worsening aside from the arguments previously considered in the October 2003 rating decision. As there are no new contentions or evidence to support this claim, the evidence added to the record is either cumulative, or unrelated to the claim. As new and material evidence has not been submitted, the claim is not reopened, and the appeal as to this issue is denied. Service Connection 2. Diabetes mellitus To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The Veteran contends that he suffers from diabetes mellitus as a result of his military service and, as such, he is entitled to service connection for this disorder. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Here, the Board concludes that, while the Veteran has a current diagnosis of diabetes mellitus, (see August 2014 VA treatment record), the preponderance of the evidence weighs against finding that the Veteran’s diabetes mellitus began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a), (d). The Veteran’s service treatment records do not show that he was diagnosed with diabetes mellitus during service. Further, these records do not show the Veteran was treated for or complained of symptoms commonly associated with diabetes mellitus. Additionally, the claims file does not contain any medical records or etiological opinions linking the Veteran’s disorder to his active service. In sum, there is no evidence, medical or otherwise, to support the Veteran’s assertions. While the Veteran believes his diabetes mellitus is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires knowledge and interpretation of complicated diagnostic medical and laboratory testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the lack of medical evidence of record attributing the Veteran’s diabetes mellitus to his military service. The Board also notes that the Veteran has not been afforded a VA examination addressing his claim, but the Board finds that an examination is not required. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary’s obligation under 38 U.S.C. § 5103A (d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, the evidence does not indicate the diagnosed diabetes mellitus is due to or aggravated by the Veteran’s military service. The Veteran has not offered any competent and credible medical records to suggest otherwise. These facts are insufficient to trigger VA’s duty to provide an examination. See Waters, 601 F.3d 1274. Accordingly, service connection is not warranted because the Veteran has not satisfied the nexus requirement of attributing his diabetes mellitus to his active service. See 38 C.F.R. § 3.303 (2017). In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine does not apply. 38 U.S.C. § 5107(b) (2012). The claim of entitlement to service connection for diabetes mellitus is denied. REASONS FOR REMAND 1. Right shoulder disability As an initial matter, the Board notes that the latest VA treatment records in the claims file are from 2014. The RO should attempt to obtain any outstanding records, VA or private from 2014 to the present. Additionally, the Board notes the previous May 2015 VA examination for the right shoulder does not comply with the holding in Correia v. McDonald, 28 Vet. App. 158 (2016). In Correia, the Court held that “to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of” 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). The referenced portion of 38 C.F.R. § 4.59 (2017) states that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” As the prior examination is not in compliance, a remand is required so that the Veteran may be afforded a new VA examination for his right shoulder disability that contains adequate information pursuant to Correia. The matter is REMANDED for the following action: 1. Obtain and associate with the claims file all of the Veteran’s outstanding VA and private treatment records from 2014 to the present. All actions to obtain the requested records should be documented fully in the claims file. 2. Once any outstanding records have been obtained and associated with the claims file, schedule the Veteran for a VA examination to determine the current severity of his service-connected right shoulder disability. The examiner must review the claims file and note that review in the examination report. The examiner must provide the rationale for all opinions expressed. If the examiner is unable to provide the required opinion, the examiner should explain why that is. The examiner should provide opinions on the following: (a.) Please identify all right shoulder orthopedic pathology found to be present. Conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, express any functional loss in terms of additional degrees of limited motion of the Veteran’s back, i.e., the extent of the Veteran’s pain-free motion. (b.) Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), please record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a joint cannot be tested on “weight-bearing,” please specifically indicate why that testing cannot be done. (c.) Please ascertain whether the pain the Veteran experiences due to his disability significantly limits his functional ability during flare-ups or when an affected muscle group is used repeatedly over a period of time (these determinations should also, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups). (d.) Any additional impairment on use or in connection with flare-ups should be described in terms of the degree of additional range of motion loss. The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, such flare-ups affect functional impairment. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 3. The Veteran should be informed that failure to appear for these examinations, without good cause, may cause his claim to be denied. See 38 C.F.R. § 3.655. All efforts to schedule the examination should be documented in the file. 4. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berry, Counsel