Citation Nr: 1819264 Decision Date: 03/30/18 Archive Date: 04/05/18 DOCKET NO. 14-22 772 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Whether new and material evidence has been submitted to reopen the claim for service connection for type II diabetes mellitus. REPRESENTATION Veteran represented by: Matthew T. Stillman, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. A. Ong, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1965 to September 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in November 2014. A transcript of the hearing is associated with the electronic claims file. In August 2016, the Board remanded this matter for further evidentiary development. The directives have been substantially complied with and the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). With regard to the Veteran's application to reopen his claim for service connection for type II diabetes mellitus, regardless of the decision of the RO as to whether to reopen a previously denied claim, a finding by the Board of new and material evidence is required in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. FINDINGS OF FACT 1. Service connection for type II diabetes mellitus was denied in an October 2009 rating decision. The Veteran did not appeal or submit new and material evidence within one year of the decision. 2. Evidence submitted since October 2009 rating decision is cumulative or redundant of the evidence of record at the time of the prior final denial of the claim for type II diabetes mellitus. CONCLUSIONS OF LAW 1. The October 2009 rating decision denying service connection for type II diabetes mellitus is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. Since the October 2009 rating decision, new and material evidence has not been received, and the claim of entitlement to service connection for type II 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 I. Duty to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). VA's duty to notify was satisfied by a letter to the Veteran in September 2009. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). VA's Office of General Counsel (OGC) has concluded that the plain language of 38 U.S.C. § 5103(a)(1) does not require VA, upon receipt of a petition to reopen a previously denied claim, to provide notice of the information and evidence necessary to substantiate the element or elements found insufficient in the prior denial of the claim. See VAOPGCPREC 6-2014 (November 21, 2014). Thus, the requirements of Kent v. Nicholson, 20 Vet. App. 1 (2006) are no longer controlling insofar as it construed the former § 5103(a) to require that VA provide case-specific notice to a claimant in a claim to reopen. Id. That said, the OGC opinion did conclude that VA was required to provide notice "to explain what 'new and material evidence' means." Id. (quoting Akers v. Shinseki, 673 F.3d 1352, 1358 (Fed. Cir. 2012)). The June 2012 letter to the Veteran included the necessary information. As noted above, the Veteran also was afforded a hearing before the undersigned Veterans Law Judge (VLJ) during which he presented oral argument in support of his claim. Here, the undersigned clarified the issue on appeal and made inquiry as to the existence of outstanding evidence. The VLJ specifically discussed potential evidence. The actions of the VLJ supplement the VCAA and comply with 38 C.F.R. § 3.103 (2017). In addition, neither the Veteran nor his representative has identified any shortcomings in fulfilling VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. II. Application to Reopen The Veteran contends he is entitled to service connection for type II diabetes mellitus, to include as due to herbicide exposure. The Veteran has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c) (2012); 38 C.F.R. §§ 3.160(d), 20.201, and 20.302(a) (2017). The Veteran was denied entitlement to service connection for type II diabetes mellitus in February 2002 rating decision. The Veteran did not appeal the denial or submit new and material evidence within one year of the determination. The denial of his diabetes mellitus claim consequently became final. See 38 C.F.R. §§ 20.302, 20.1103 (2017). Thereafter, in August 2009, the Veteran applied to reopen his claim of entitlement to service connection for type II diabetes mellitus. As with the February 2002 rating decision, the Veteran was denied in an October 2009 rating decision. The Veteran did not file a timely NOD to the October 2009 rating decision, or submit new and material evidence within one year of the determination. The denial of his claim consequently became final. As a result, the claim of entitlement to service connection for diabetes mellitus may now be considered if new and material evidence has been received since the time of the last final adjudication. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not of record at the time of the last final disallowance of the claim. 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. The United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." See id. In the February 2002 rating decision, the RO denied service connection for type II diabetes mellitus on a herbicide presumptive basis, because the required service in Vietnam was not shown; on a presumptive basis because the available medical evidence did not demonstrate that the disease was manifest to a compensable level within one year of separation from active service; and on a direct basis because the evidence did not establish that the diabetes mellitus was incurred in or aggravated by service. Thereafter, the RO denied service connection for type II diabetes mellitus, to include as due to herbicide exposure, in an October 2009 rating decision based on a finding that there was no evidence of record showing that the Veteran served in-country in the Republic of Vietnam. The RO reported that the evidence only indicated that the Veteran served in the waters surrounding Vietnam with no service on land. In essence, at the time of the prior final decision there was no evidence of diabetes mellitus in service or within one year of separation. There was no evidence linking diabetes mellitus to service and no accepted evidence of Agent Orange exposure. There was remote post service evidence of diabetes mellitus with medication for same. At the time of the prior final rating decision in October 2009, the record included the Veteran's service personnel records, post-service treatment records showing a diagnosis of diabetes mellitus, and statements from the Veteran. In his Application for Compensation or Pension (VA Form 21-526) dated May 2001, he contended that his diabetes mellitus was due to herbicide exposure during service in Vietnam. In May 2012, the Veteran applied to reopen his claim of entitlement to service connection for type II diabetes mellitus, to include as due to herbicide exposure. In order to reopen the previously denied claim, the evidence submitted since the last final denial must be new and material. After a review of the record, the Board concludes that new and material evidence sufficient to reopen the claim of entitlement to service connection for diabetes mellitus has not been submitted. The added evidence, in pertinent part, consists of service treatment records, post-service VA and private treatment records, a November 2012 VA examination, a May 2009 U.S. Army and Joint Services and Records Research Center (JSRRC) memorandum received in November 2012, and statements from the Veteran and his representative noting he was exposed to herbicides during service aboard the U.S.S. St. Paul. The record further contains an April 2013 letter from Military-Veterans Advocacy, Inc. asserting that Blue Water Navy veterans should be entitled to the presumption of service connection for certain disorders based on herbicide agent exposure. The Veteran's service treatment records do not contain a diagnosis of or manifestations of diabetes mellitus. A September 1969 clinical evaluation identified marks and scars, but was otherwise normal. The record also contains a May 1984 re-enlistment examination that was also normal as to pertinent issues. Post-service VA outpatient treatment records contain evidence of a remote onset of diabetes mellitus in April 1999. VA outpatient treatment records associated with the claims file in November 2017 and the November 2012 VA examination are cumulative of the medical evidence of record at the time of the October 2009 rating decision, particularly that the Veteran has a post service diagnosis of diabetes mellitus, which was reflected in VA outpatient treatment records associated with the claims file in July 2001. The fact that the Veteran had diabetes had been established. Evidence confirming a known fact is cumulative. At the time of the prior denial, there was no evidence of diabetes during service or within one year of separation. Nothing material has changed. Therefore, such evidence is not new and material. There is no competent evidence which has been added to the record subsequent to the October 2009 RO rating decision which suggests that the Veteran's diabetes mellitus was incurred in service or manifested within one year of discharge from service. The Board notes the Veteran's statements in May 2012, July 2012, and February 2013 concerning herbicide exposure during service while aboard the U.S.S. St. Paul. At the November 2014 hearing, the Veteran raised the April 2013 letter regarding Blue Water Navy Veterans that was associated with the claims file in November 2014. The Veteran further testified that he was exposed to herbicides by coming into contact with service members who came aboard the ship by helicopter. He stated that the helicopters came from mainland Vietnam, and that the ship was stopped in the general area of Da Nang Harbor where herbicides were used or by monsoon rain. The Board finds that the Veteran's statements regarding in-service herbicide exposure in Vietnam are not new and material evidence. Since prior to the October 2009 rating decision, the Veteran has maintained that he was exposed by service members who came aboard the U.S.S. St. Paul from mainland Vietnam. The statements of in-service herbicide exposure are cumulative and redundant of evidence previously of record. The Board notes that the JSRRC reported in its May 2009 memorandum that it can provide no evidence to support a veteran's claim of exposure to tactical herbicide agents while serving aboard a Navy or Coast Guard ship during the Vietnam Era. Therefore, the record continues to contain no competent evidence of in-service herbicide exposure. Regarding the April 2013 letter raised at the hearing, the Board notes that this report is of a general nature and does not contain any information or analysis specific to the Veteran's case. Additionally, the Court has held that evidence which is speculative, general, or inconclusive in nature cannot support a claim. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). The Board finds that there is no objective indication that could reasonably substantiate that he was exposed to herbicides while aboard the U.S.S. St. Paul. Furthermore, an argument that the presumption should attach to the blue water navy is not evidence. It is an argument that a regulation should be changed. In November 2014, the Veteran's representative submitted a prior Board decision that granted another veteran's claims for service connection for neuropathy and diabetes mellitus. The decisions are based on different facts and evidence than in the present case. Moreover, Board decisions are nonprecedential in nature. See 38 C.F.R. § 20.1303. In conclusion, the evidence associated with the record subsequent to October 2009, is cumulative. At the time of the prior final RO rating decision, there was evidence of a remote onset of diabetes mellitus and an assertion of in-service herbicide exposure. At the time of the October 2009 rating decision, there was no indication of in-service herbicide exposure and there continues to be no competent evidence of exposure. New and material evidence has not been submitted and the claim is not reopened. ORDER The application to reopen the claim for service connection for type II diabetes mellitus is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs