Citation Nr: 20005804 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 16-38 954 DATE: January 23, 2020 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for diabetes mellitus, type II; the appeal is granted to this extent only. REMANDED Service connection for diabetes mellitus type II is remanded. Service connection for peripheral neuropathy is remanded. Service connection for a skin disorder is remanded. Service connection for benign paroxysmal vertigo/Meniere’s disease is remanded. Service connection for a psychiatric disorder, to include sleep disturbance is remanded. Service connection for an adrenal gland disorder is remanded. FINDINGS OF FACT 1. By rating decision dated in June 2010, service connection for diabetes mellitus was denied; the Veteran did not appeal, and the determination became final. 2. Newly-received evidence associated with the claims file since the RO’s June 2010 denial of service connection for diabetes mellitus, type II, relates to an unestablished fact and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The June 2010 rating decision denying service connection for diabetes mellitus is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria for reopening the previously denied claim of service connection for diabetes have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 through December 1969. The case is on appeal from a rating decision issued in December 2015, which denied service connection for an adrenal gland disorder, benign paroxysmal vertigo, skin disorder(s), sleep disturbance, and peripheral neuropathy; and service connection for diabetes mellitus on the grounds of no new and material evidence. The Board notes that in a June 2015 notice of disagreement, the Veteran also referred to the issue of service connection for hypercholesterolemia, but that issue was not adjudicated until the aforesaid December 2015 rating decision. The Veteran did not file a notice of disagreement regarding the issue of service connection for hypercholesterolemia after the December 2015 rating decision. In August 2019, the Veteran testified at a videoconference Board Hearing. During the hearing the Veteran requested a 30-day extension of time to submit more evidence, which was granted. In September 2019, the Veteran’s representative submitted numerous VA examination reports dated in September 2019, along with a waiver of review by the agency of original jurisdiction of that evidence. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion 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). 1. Reopening of a claim of service connection for diabetes In a June 2010 rating decision, the RO denied service connection for diabetes mellitus on the grounds that the Veteran’s Fasting Blood Glucose tests were negative for diabetes mellitus. Relevant evidence was not received within a year of the determination and the Veteran did not appeal that decision. Thus, it became final. In August 2014, the Veteran filed a new claim for service connection for diabetes mellitus, and in a December 2015 rating decision the RO denied the claim on the grounds of no new and material evidence. The Veteran appealed. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 C.F.R. § 3.156(a). If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review the claim on the merits. 38 U.S.C. § 5108. 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). 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 (2010). On review of the record the Board finds that new and material evidence has been submitted since the RO’s June 2010 decision. See private medical record dated February 25, 2019, which refers a diagnosis of “type 2 dm w/ diabetic neuropathy.” See also photocopy of pharmaceutical dispensation of Glipizide dated October 26, 2018. The previously denied claim of service connection for diabetes mellitus is therefore reopened and is addressed in the Remand portion of this decision. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Service connection for diabetes mellitus type II. 2. Service connection for peripheral neuropathy. In August 2019, the Veteran’s representative submitted private medical records which indicate that the Veteran has recently been diagnosed with and prescribed oral medication for diabetes mellitus type II; however, the diagnostic report was not provided. September 2019 reports note the absence of diabetes mellitus. A remand for a VA examination to confirm the presence or absence of diabetes mellitus type II is warranted. The claim for peripheral neuropathy, which is intertwined with the claim for diabetes mellitus type II, is also remanded. 3. Service connection for a skin disorder. Medical records chronicle treatment for numerous skin disorders, including actinic keratosis, rosacea, seborrheic dermatitis, and squamous cell carcinoma. See, e.g., VA medical records dated in October 2015. See also private medical record dated February 25, 2019. In February 2015, the Veteran was afforded a VA examination. The diagnosis was lipomas, which the examiner said was not related to service because “he does not have “chloracne” which is the presumptive condition associated to agent orange.” However, the examiner did not opine as to whether the Veteran’s lipomas are nonetheless related to service; or opine as to whether the Veteran’s actinic keratosis and squamous cell carcinoma are related to service. In September 2019, a VA DBQ skin diseases examiner indicated (by checking a box) that the Veteran’s multiple actinic keratosis and squamous cell carcinoma was not related to Agent Orange exposure; but provided no rationale and did not opine as to whether the skin disorders are otherwise related to service. Remand for an adequate VA medical opinion is warranted. 4. Service connection for benign paroxysmal vertigo/Meniere’s disease. Medical records document complaints of vertigo and nausea. See, e.g., VA medical records dated in June 2007. In September 2019, the Veteran underwent a VA DBQ ear diseases examination. The examiner noted that the Veteran has inner ear/vestibular symptoms (vertigo) of Meniere’s Syndrome. However, the examiner did not provide a nexus opinion. Thus, a remand for a new VA examination is warranted. 5. Service connection for a psychiatric disorder, to include sleep disturbance. The Veteran also seeks service connection for a psychiatric disorder, claimed as sleep disturbance; which he posits may be related to his service-connected ischemic heart disease disability. In November 2015, the Veteran was afforded a VA Mental Disorders examination. The diagnosis was “no mental disorder diagnosis.” However, the examiner did not address the Veteran’s assertion of sleep disturbance. There is no mention of any sleep issues in the 2015 examination report. The record also contains a VA DBQ report that was submitted by the Veteran’s representative in September 2019, but there, again, is no mention of the Veteran’s sleep complaints, and that document is undated and unsigned. Remand for a new VA examination is warranted. 6. Service connection for an adrenal gland disorder. In addition to the foregoing, on review of the record the Board observes that the Veteran was receiving Social Security (SSA) disability benefits during the appeal period. Before a decision on the claim for service connection for an adrenal gland disorder (or any of the other claimed disorders) can be issued, the Veteran’s SSA disability records should be obtained and associated with the claims file. Finally, the Board notes that in August 2014, the Veteran requested a copy of his STRs (see Veteran’s August 15, 2014 VA 70-3288 Request for and Consent to Release of Information from Individual’s Record); however, there is no record of any responsive action. On remand the Veteran should be sent a copy of his STRs. The matters are REMANDED for the following action: 1. Request the Veteran’s SSA disability records and associate them with the claims file. 2. Take appropriate action regarding the Veteran’s August 2014 request for records. Document the claims file accordingly. 3. After completion of step 1, schedule the Veteran for a new VA examination regarding the issues of service connection for diabetes mellitus and peripheral neuropathy. The claims file must be reviewed, and the Veteran must be physically examined. The examiner must also discuss the Veteran’s military experiences and symptoms, and current complaints and symptoms, with the Veteran and document the Veteran’s assertions in the examination report. Additionally, after conducting any testing deemed appropriate (including laboratory and neurological testing), the examiner must determine the following: (a.) whether the Veteran has diabetes mellitus type II; and (b.) whether the Veteran has diabetic peripheral neuropathy. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. 4. After completion of step 1, schedule the Veteran for a new VA skin disorders examination. The claims file must be reviewed, and the Veteran must be physically examined. The examiner must also discuss the Veteran’s military experiences and symptoms, and current complaints and symptoms, with the Veteran and document the Veteran’s assertions in the examination report. The examiner is then requested to opine, for each skin disorder found on examination and in post-service treatment records, as to whether it is at least as likely as not (50 percent or greater probability) that the disorder. (a.) began during active duty service, or (b.) is related to any incident/event of active duty service. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. 5. After completion of step 1, schedule the Veteran for a new VA ear disorders examination. The claims file must be reviewed, and the Veteran must be physically examined. The examiner must also discuss the Veteran’s military experiences and symptoms, and current complaints and symptoms, with the Veteran and document the Veteran’s assertions in the examination report. The examiner is then requested to opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s vestibular disorder/vertigo (a.) began during active duty service, or (b.) is related to any incident/event of active duty service. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. 6. After completion of step 1, schedule the Veteran for a new VA examination regarding the claim of service connection for a psychiatric disorder, to include sleep impairment. The examiner should review the file and discuss the Veteran’s military experiences and current complaints and symptoms with the Veteran and document the Veteran’s assertions in the examination report. After conducting any psychological testing deemed appropriate, the examiner should address the following: (a.) Identify all current psychiatric disorder(s) present, and (b.) specifically state whether the Veteran’s complaints of sleep impairment support a separate and distinct diagnosis or is part and parcel of any psychiatric diagnosis. (c.) The examiner is then requested to opine, for each psychiatric disorder found on examination and in post-service treatment records, as to whether it is at least as likely as not (50 percent or greater probability) that the disorder (i) began during active duty service, (ii) is related to any incident/event of the Veteran’s active duty service, or (iii) is secondary to (caused by, or aggravated by) the Veteran’s service-connected ischemic heart disease. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Childers, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.