Citation Nr: 1807853 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 14-17 769 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Whether new and material evidence has been received to reopen the claim of entitlement to service connection for diabetes mellitus, and if so whether service connection is warranted. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. F. Brandau, Associate Counsel INTRODUCTION The Veteran has active duty service in the United States Navy from May 1965 to April 1967, with additional time served in a naval reserve unit. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the RO reopened the claim of entitlement to service connection for diabetes. The Board finds that this determination is not binding. The requirement for the submission of new and material evidence is a jurisdictional prerequisite in order for a claimant to obtain review of a previously denied and final decision. 38 U.S.C. §§ 5108, 7104(b) (2012). Therefore, the Board is under the statutory obligation to conduct a de novo review of the new and material evidence issue. Butler v. Brown, 9 Vet. App. 167, 171 (1996). FINDINGS OF FACT 1. The Veteran was denied entitlement to service connection for diabetes mellitus in a May 1998 rating decision. He did not appeal this decision or submit new evidence within the requisite time period, and the rating decision became final. 2. Evidence received since the May 1998 rating decision is cumulative and redundant of the evidence of record at the time of the last prior final denial of the claim of entitlement to service connection for diabetes mellitus, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The May 1998 rating decision which denied the Veteran's claim for entitlement to service connection for diabetes mellitus is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1998); currently 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. Evidence received since the May 1998 rating decision is not new and material and, therefore, the claim for entitlement to service connection for diabetes mellitus is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist In a November 2017 brief, the Veteran's representative generally argues that the VA examinations "failed to provide a reliable etiology, albeit warranting service connection." Further explanation was not provided to indicate why the representative thought the examinations and opinions were not adequate. Initially, it is noted that VA does not have a duty to provide an examination or obtain a medical opinion for a previously denied service connection claim until new and material evidence is received and the claim for service connection reopened. The Board finds the opinions in this case are based upon consideration of the Veteran's prior medical history, including his lay statements, and also describe the disability in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one. The examiners supported the conclusions such that the Board can consider and weigh the findings. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). There is also nothing in the record to suggest that the Veteran raised any issues with the duty to notify or duty to assist. New and Material Evidence Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). 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). For purposes of determining whether to reopen a claim, the credibility of the recently submitted evidence will be presumed. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam). In determining whether new and material evidence has been received to reopen a claim, there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination. Id. at 118. The RO denied the Veteran's claim of entitlement to service connection for diabetes in a May 1998 decision, finding that there was no in service event or injury. This rating decision took into account that the Veteran had light sugar in the urine and that his two-hour glucose testing read at 94 percent at discharge. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new evidence within the requisite time period. Therefore, the May 1998 rating decision is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1998); currently 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). In December 2012 the Veteran instituted the present claim, and the RO denied the case on the basis that no new and material evidence had been submitted to reopen the claim. The Veteran submitted a timely notice of disagreement in June 2013, and VA and private treatment notes were submitted showing that the Veteran was receiving ongoing treatment and medication management for diabetes. These treatment notes established that there was a current disability but did not provide evidence of an in-service event or injury of diabetes. Therefore, the RO found the evidence submitted did not relate to an unestablished fact necessary to substantiate the claim and did not raise a reasonable possibility of substantiating the claim. In March 2015 the Veteran's file was reviewed in connection with another claim, and at the time the VA examiner noted the Veteran's glucosuria at discharge but found it was not likely an early onset of diabetes and that glucosuria had other factors to include pregnancy, diet, gastrectomy, hyperthyroid, and liver disease. It was maintained throughout the VA examination that the first evidence of diabetes was in the 1990s, many years after separation from service. As noted, the requirement for the submission of new and material evidence is a jurisdictional prerequisite in order for a claimant to obtain review of a previously denied and final decision. 38 U.S.C. §§ 5108, 7104(b). Therefore, the Board will conduct a de novo review of the new and material evidence issue. Butler, 9 Vet. App. at 171. The new evidence received after the May 1998 rating decision includes, in relevant part, VA treatment records and private treatment records showing treatment for diabetes mellitus to include medication management. There was also the March 2015 VA examination for another claim that made the comment pertaining to diabetes. Although the above cited evidence is new, in that it was not of record as of the time of the May 1998 rating decision, the Board finds that it is cumulative and redundant, as the evidence merely documented treatment for a current diabetes mellitus disability rather than providing an in service event or nexus between active duty service and a current disability. At the time of the May 1998 rating decision, there was already evidence of a current disability for service connection purposes. Moreover, the Board finds that the evidence is not material because it does not raise a reasonable possibility of substantiating the claims. As noted, the evidence does not suggest that the Veteran had a diagnosis of diabetes mellitus during service or within one year of separation from service. The Veteran maintains that he had a high level of blood glucose when he was separating in 1967, and that he signed a waiver noting that the military was not liable for his condition at separation, both of which suggested to him that he had diabetes at separation. Unfortunately, although glucose was found in the urine at discharge this was already considered by the RO during the May 1998 rating decision, and the RO determined that this was not indicative of diabetes mellitus. The evidence in the record presently as well as the evidence in the record in May 1998 shows that the Veteran has had a persistent diabetes disability but that it was not diagnosed until 1994. There has been no evidence added to the record to suggest that the Veteran's diabetes disability began during active duty service or within one year of separation from service. The Veteran has not asserted that he sought treatment for high blood sugar or for any other diabetes symptom during active duty service; he has only stated that he had glucose in the urine at separation which has already been considered. In sum, even when considering the newly submitted evidence together with the previous evidence of record, the evidence does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for diabetes mellitus. Accordingly, new and material evidence has not been received sufficient to reopen the previously denied claim, and the Veteran's petition to reopen such claim is denied. ORDER New and material evidence has not been received to reopen the claim of entitlement to service connection for diabetes mellitus and therefore the claim is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs