Citation Nr: 18158886 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-63 422 DATE: December 18, 2018 ORDER New and material evidence not having been received, the claim for entitlement to service connection for diabetes mellitus, type II, is not reopened. FINDINGS OF FACT 1. A March 2012 rating decision denied entitlement to service connection for diabetes mellitus, type II; the Veteran did not timely appeal the denial; and new and material evidence was not submitted as to the issue within the one-year appeal period following the issuance of the March 2012 rating decision. 2. Evidence received since the March 2012 rating decision related to the issue of entitlement to service connection for diabetes mellitus is not new, or is new but is not material, and does not raise a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The March 2012 rating decision denial of entitlement to service connection for diabetes mellitus, type II, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156 (b), 20.200, 20.202, 20.302, 20.1103 (2017). 2. New and material evidence has not been received to reopen the claim for entitlement to service connection for diabetes mellitus, type II; therefore, the claim is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1966 to March 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a November 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In this regard, a notice of disagreement received in April 2016 was timely, and a substantive appeal was received within 90 days of issuance of the statement of the case so as to be timely for the November 2015 rating decision. 1. Whether New and Material Evidence Has Been Received to Reopen a Claim of Entitlement to Service Connection for Diabetes Mellitus, Type II Legal Criteria In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is provided in 38 U.S.C. § 5108, which states that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The question of whether new and material evidence has been received to reopen a previously denied claim must be addressed by the Board in the first instance because the issue goes to the Board’s jurisdiction to reach and adjudicate the underlying claim on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and further analysis beyond consideration of whether the evidence received is new and material is neither required nor permitted. Barnett, 83 F.3d at 1384. New evidence is existing evidence not previously considered by VA. Material evidence is 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Analysis In this case, the RO denied service connection for diabetes mellitus, type II, in a March 2012 rating decision because it was not shown to have been incurred in service, and there was no evidence that the Veteran was assigned to the perimeter of a Royal Thai Air Force Base so as to warrant service connection on a presumptive basis due to herbicide exposure. The Veteran was notified of the decision in a letter dated March 7, 2012. The Veteran did not file a notice of disagreement with the March 2012 rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of issuance of notice of the rating decision. See 38 C.F.R. § 3.156 (b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the March 2012 rating decision became final based on the evidence then of record. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. § 20.1105. Evidence received since the final March 2012 rating decision that is relevant to the claim for entitlement to service connection for diabetes mellitus, type II, includes VA treatment records and additional copies of the Veteran’s service treatment records and military personnel records. The VA treatment records continue to show that the Veteran has a current diagnosis of diabetes mellitus, type II. They do not contain any medical statements linking his diabetes mellitus, type II, to the Veteran’s active service. Accordingly, the medical treatment records are new in the sense that they have not yet been reviewed by VA, but they are merely cumulative of previously considered records. Namely, they merely confirm facts previously established and do not raise a reasonable possibility of substantiating the claim. Therefore, the medical treatment records are not considered new and material evidence as to the claim for entitlement to service connection for diabetes mellitus, type II. The service treatment records and military personnel records reflect that the Veteran was stationed in Thailand and that a relay station was built on the perimeter of Korat Royal Thai Air Force Base and Camp Friendship. The Veteran’s service treatment records and military personnel records, including evidence that a relay station was built on the perimeter of Korat Royal Thai Air Force Base, were of record and were considered at the time of the previous final decision on this issue. Therefore, the service treatment records and military personnel records themselves are not new evidence. Accordingly, the evidence is redundant of previous evidence that was considered as part of the prior final denial. The Veteran’s service treatment records and military personnel records are not new and material evidence sufficient to reopen the previously denied claim. They do not tend to establish a previously unestablished fact that the Veteran’s assigned duties placed him on the perimeter of Korat Royal Thai Air Force Base. In summary, the Veteran was denied entitlement to service connection for diabetes mellitus, type II, in the final March 2012 rating decision. Evidence received since the March 2012 rating decision is cumulative of evidence already considered by VA, does not relate to an unestablished fact necessary to substantiate the previously denied claim, and/or does not raise a reasonable possibility of substantiating the previously denied claim. 38 C.F.R. § 3.156. Accordingly, new and material evidence to reopen the finally denied claim for entitlement to service connection for diabetes mellitus, type II, has not been received, the benefit-of-the-doubt doctrine is not for application, and the claim for entitlement to service connection for diabetes mellitus, type II, is not reopened. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. VA’s Duty to Notify and Assist With respect to the Veteran’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 (2012); 38 C.F.R. §§ 3.102, 3.156 (a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Counsel