Citation Nr: 1806363 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 12-23 374 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a skin rash. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus, type II and, if so, whether service connection is warranted. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J. George, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to January 1970. This matter comes to the Board of Veterans' Appeals (Board) from the following procedure. In May 2006, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for diabetes mellitus, type II. In November 2006, the Veteran asked VA to reconsider the denial, and VA continued the denial of the claim in an April 2009 rating decision. The Veteran again asked for reconsideration of the claim in May 2009. Thereafter, in a February 2010 rating decision, the RO denied reopening of the diabetes claim and denied service connection for a skin rash. The Veteran was afforded a video conference hearing before the undersigned Veterans Law Judge in October 2017, at which the record was held open 60 days. Since then VA has received private treatment records from Emory University Hospital Midtown, Atlanta Gastroenterology Associates, DeKalb Medical, and Atlanta Medical Center. Though new evidence has been received, and assuming without so stating that such evidence is relevant to the claims before the Board, the Board may proceed with adjudicating these claims as it is reopening the claim of service connection for diabetes mellitus, type II and remanding the merits of both service connection claims to the RO for further development. Under these circumstances, there is no prejudice to the Veteran. The issues of entitlement to service connection for a skin rash and diabetes mellitus, type II are addressed in the REMAND portion of the decision below and are REMANDED to the RO. REASONS AND BASES FOR FINDING AND CONCLUSION The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). New and Material Evidence In May 2006, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for diabetes mellitus, type II. In November 2006, the Veteran asked VA to reconsider the denial. No new, relevant evidence was submitted to VA within a year of the May 2006 denial. Thus, the denial became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Thereafter, the Veteran requested reconsideration of, but did not note disagreement with May 2006 rating decision. Pursuant to this request, the RO readjudicated the claim in April 2009. In May 2009, the Veteran again requested reconsideration of, but did not note disagreement with the April 2009 rating decision. Thereafter, a new rating decision was issued in February 2010 in which the RO declined to reopen the claim. In March 2010, the Veteran noted disagreement with the rating decision "dated February 22, 2010." Considering the Veteran limited his disagreement to the February 2010 rating decision, the Board finds that the April 2009 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. At the Board hearing in October 2017, the Veteran stated that his diabetes was caused by his work aboard the USS American. From the Veteran's testimony, he is describing a process apart from possible exposure to herbicides and claiming that chemicals on the ship and "pretty much everything on the ship" caused his diabetes. (Transcript p.8). In this posture, the Board may not judge the credibility or assign weight to such statement. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Therefore, the Board finds that this statement is enough to reopen the claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The appeal is granted to this extent only. ORDER New and material evidence having been received, a claim for service connection for diabetes mellitus, type II is reopened; the appeal is granted to this extent only. REMAND With respect to diabetes, the Veteran a current diagnosis and has indicated that "pretty much everything on the ship" caused his diabetes. (Hearing Transcript p. 8). With respect to the skin rash, there is no formal current diagnosis, but the Veteran has noted a rash that comes and goes as well as periodic treatment with a topical cream. These symptoms indicate a current disorder. Moreover, the Veteran has noted that this condition began in service and has occurred periodically since service. The Veteran has not been afforded VA examination for either claimed condition. Thus, a remand for such examinations is necessary. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Further, the Board notes that the most recent VA medical records in the claims file are dated from 2009. More recent records likely exist and should be requested on remand. Finally, it is not clear to the Board that VA has requested records pertaining to diabetes from all providers identified in the Veteran's March 2006 VA 21-526 Application for Compensation or Pension have been requested. On remand, the RO should ensure that all treatment records are in the claims file and, after obtaining authorization from the Veteran, obtain any records that are not. If the Veteran has any treatment records not already submitted to VA pertaining to these claims in his possession, he may submit them. Accordingly, these issues are REMANDED for the following actions: 1. Obtain updated VA treatment records. 2. To the extent records identified in the Veteran's VA-526 received in March 2006 have not been associated with the claims file, and, after receiving any necessary authorization, obtain such records. Please also inform the Veteran that he may submit relevant private treatment which he has not yet submitted. 3. After completing the above, schedule the Veteran for examination(s) of his skin rash and diabetes mellitus, type II by the medical appropriate clinician(s). After a review of the entire claims file, the examiner(s) should opine as to the following: (A) For any diagnosed disorder manifested by the claimed skin rash, whether it is at least as likely as not (50 percent or greater probability) that such disorder had its onset during, or is otherwise related to service. (B) Whether the Veteran's diabetes mellitus, type II is at least as likely as not (50 percent or greater probability) related to service, to include as due to exposure to chemicals or other materials aboard the USS American. Consider this inquiry on a non-presumptive basis. A complete rationale for any opinion rendered should be provided. The examiner is directed to consider all relevant lay statements of record. 4. Finally, readjudicate the issues remaining on appeal, including the reopened diabetes mellitus claim on the merits. If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. ______________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs