Citation Nr: 1828087	
Decision Date: 05/07/18    Archive Date: 05/18/18

DOCKET NO.  15-02 841	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Whether new and material evidence has been received to reopen the previously-denied claim of entitlement to service connection for diabetes mellitus type II.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

R. Behlen, Associate Counsel



INTRODUCTION

The appellant served on active duty in the Air Force from February 1966 to September 1969.  He is the recipient of the Air Force Good Conduct Medal.

This matter comes before the Board of Veterans' Appeals (Board) from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  The appellant filed a timely Notice of Disagreement (NOD), received in December 2013.  A Statement of the Case (SOC) was issued in November 2014.  A timely substantive appeal was received in January 2015.

The appellant withdrew his request for a Board hearing per a February 2016 Report of General Information.  38 C.F.R. § 20.704(e).


FINDINGS OF FACT

1.  A May 2012 rating decision denied service connection for diabetes mellitus type II.  The appellant was duly notified of the RO's determination and his appellate rights but did not appeal within the applicable time period, nor was new and material evidence received in the year following notification of the decision.

2.  Evidence received since the final May 2012 rating decision denying service connection for diabetes mellitus type II is cumulative, does not relate to an unestablished fact necessary to substantiate the claimed, and does not raise a reasonable possibility of substantiating the claim.


CONCLUSIONS OF LAW

1.  The May 2012 rating decision denying service connection for diabetes mellitus type II is final.  38 U.S.C. § 7105(c) (2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2011).

2.  New and material evidence has not been received to warrant reopening of the claim of service connection for diabetes mellitus type II.  38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Veterans Claims Assistance Act of 2000 (VCAA)

Neither the appellant nor his representative has raised any 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).

II.  Applicable Law

In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final.  See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103.  Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim.  

For claims such as this one, filed on or after August 29, 2001, 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.

To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance.  See Evans v. Brown, 9 Vet. App. 273, 285 (1996).  For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness).

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low.  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  Furthermore, 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 ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist.  Id. at 118; but see Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to a claimant is not new and material).

The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b).  Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  "It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran."  See Gilbert, 1 Vet. App. at 54.

III.  Finality of May 2012 Rating Decision

In a May 2012 rating decision, the RO denied service connection for diabetes mellitus type II because there was no evidence of a diagnosis or treatment for diabetes mellitus type II while in service or within the presumptive period, and because there was no link between his active service and his currently-diagnosed diabetes mellitus type II.  It was also noted that he was not exposed to herbicide agents while on active duty.  The appellant was duly informed of this decision in a May 2012 letter, but did not perfect an appeal within the applicable time period, nor was new and material evidence received within one year of the letter.  Thus, the determination is final.  

The appellant contends that he filed a timely NOD with regard to the May 2012 rating decision.  An August 2013 Report of General Information notes that the appellant reported sending a letter in July 2012 in order to appeal the denial of service connection for diabetes mellitus type II.  He was informed that such had not been received.  A letter from the appellant expressing his desire to appeal the May 2012 rating decision, dated July 26, 2012, was received on August 22, 2013.  There is no indication that a copy of such was received by the AOJ before this date.

There is a well-established presumption of regularity under which it is presumed that government officials "have properly discharged their official duties."  United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926).  Therefore, it must be presumed that the Secretary properly discharged his official duties by properly handling claims submitted by the appellant, including properly date-stamping and filing correspondence received.  It must also be presumed that the United States Postal Service properly discharged its official duties by properly delivering correspondence sent by the appellant to the addresses provided.  Mere lay statements are not the type of clear evidence to the contrary which would be sufficient to rebut the presumption of regularity.  Jones v. West, 12 Vet. App. 90 (1999), Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994); Ashley v. Brown, 2 Vet. App. 62, 64 (1992).

IV.  Whether New and Material Evidence Has Been Received

In order to determine whether new and material evidence has been received, the Board has reviewed the entire record, with particular attention to the additional evidence received since the last final decision in May 2012.  After reviewing the record, the Board finds that the additional evidence received is not new and material within the meaning of 38 C.F.R. § 3.156.

The additional evidence received since the final May 2012 rating decision includes the appellant's statements and additional private medical records.  The Board finds that such evidence is cumulative of the evidence of record at the time of the prior final denial of the claim.  Thus, the Board concludes that this evidence is not new and material.  38 C.F.R. § 3.156.  

The evidence of record at the time of the May 2012 rating decision included the appellant's contentions that he was exposed to herbicides while serving in Thailand because herbicides were used around the perimeter of Nakhon Phanom (NKP) Royal Thailand Air Force Base and his top-secret duties took him to the perimeter of NKP base.  See e.g. statement received in May 2011.  Nonetheless, the RO denied service connection for diabetes mellitus type II because he did not serve in a location where exposure to herbicide agents was presumed, actual exposure was not established, his diabetes mellitus type II did not manifest in service or within the presumptive period, and there was no evidence that his diabetes mellitus type II was otherwise causally related to his active service. 

Like the appellant's statements regarding exposure to herbicides, the clinical evidence received since the prior final denial of the claim is cumulative of that previously considered by the RO.  The additional private clinical evidence received notes currently-diagnosed diabetes mellitus and treatment for such.  A current diagnosis of diabetes mellitus was of record at the time of the prior final denial.  The additional clinical evidence, however, continues to lack any indication of any causal connection between the appellant's active service and his diabetes mellitus type II, to include exposure to herbicide agents.  

For these reasons, the Board finds that the additional evidence received since the final May 2012 rating decision is not new and material under the meaning of 38 C.F.R. § 3.156(a).  Consequently, the Board finds that new and material has not been received and the claim of service connection for diabetes mellitus type II is not reopened.  In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application.  38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

New and material evidence having not been received, the application to reopen the previously denied claim of entitlement to service connection for diabetes mellitus type II is denied.




______________________________________________
DAVID GRATZ
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs