Citation Nr: 20007902 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 16-39 533 DATE: January 30, 2020 ORDER As new and material evidence has been received, the previously denied claim of entitlement to service connection for diabetes mellitus, type II, is reopened. As new and material evidence has been received, the previously denied claim of entitlement to service connection for cerebrovascular accident with right hemiplegia (CVA), is reopened. REMANDED Entitlement to service connection for diabetes mellitus, type II, is remanded. Entitlement to service connection for CVA is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. A March 2003 rating decision denied entitlement to service connection for diabetes mellitus, type II, and CVA; the Veteran failed to file a notice of disagreement to initiate an appeal of these issues and new and material evidence was not received within one year. 2. Additional evidence received since the March 2003 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for diabetes mellitus, type II, and raises a reasonable possibility of substantiating the claim. 3. Additional evidence received since the March 2003 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for CVA, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The March 2003 rating decision that denied claims for service connection for diabetes mellitus, type II, and CVA is final. 38 U.S.C. § 7105(c); 38. C.F.R. §§ 3.104, 20.302, 20.1103. 2. The additional evidence received since the March 2003 rating decision is new and material, and the claim for service connection for diabetes mellitus, type II, is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The additional evidence received since the March 2003 rating decision is new and material, and the claim for service connection for CVA is reopened. 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 September 1966 to September 1968. In December 2019, the Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record New and Material Evidence Whether new and material evidence has been received to reopen the claims for service connection for diabetes mellitus, type II, and CVA The Veteran is seeking to reopen his claims for service connection for diabetes mellitus, type II, and CVA. Service connection was initially denied in a March 2003 rating decision. The Veteran did not initiate an appeal from this determination and new and material evidence was not received within one year. Importantly, the Veteran did not notify VA that additional VA treatment records were in existence. See Turner v. Shulkin, 29 Vet. App. 207 (2018). Under these circumstances, the Board must find that the March 2003 rating decision became final with respect to these issues. 38 U.S.C. § 7105(c); 38. C.F.R. 3.104, 20.302, 20.1103. At the outset, the Board notes that additional service personnel and treatment records associated with the claims file following the last final March 2003 rating decision are duplicative and/or not relevant. Accordingly, 38 C.F.R. § 3.156 (c) is not for application. The VA must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement 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); 38 C.F.R. § § 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). If new and material evidence is received during an applicable appellate period following a RO decision (1 year for a rating decision and 60 days for a statement of the case) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Thus, under 38 C.F.R. § 3.156(b), “VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim.” Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). “[N]ew and material evidence” under 38 C.F.R. § § 3.156(b) has the same meaning as “new and material evidence” as defined in 38 C.F.R. § 3.156(a). See Young v. Shinseki, 22 Vet. App. 461, 468 (2011). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7104 (b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence 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 last final decision, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110 (2010), 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, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” 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.” The Court further held it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would “force the Veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA.” For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the March 2003 rating decision, the issue of service connection for diabetes mellitus, type II, was denied because there was no evidence of exposure to herbicides during service. Likewise, there was no evidence of diabetes in service or within one year of service. Moreover, service connection for CVA was denied on a secondary basis as diabetes mellitus was not related to service. There was also no evidence showing that CVA was incurred in or aggravated in service or within the one-year presumptive period. Since the March 2003 rating decision, additional evidence has been associated with the record, including VA clinical records, statements from the Veteran and his hearing testimony. Importantly, in his statements and at the hearing, the Veteran has asserted that he was exposed to herbicide agents while on active duty. Specifically, while stationed at Fort Hood, he repaired radar equipment returning from Vietnam that had been contaminated with herbicides. He reported that the equipment was wrapped in plastic and marked contaminated. He has asserted that his diabetes mellitus was caused by such exposure. Moreover, he has continued to assert that his CVA is secondary to his diabetes mellitus type II. VA clinical records continue to show diagnoses of both disorders. Accordingly, the evidence received since the March 2003 rating decision is new and material as it is not redundant of evidence already of record in March 2003, and relates to the unestablished fact of whether the Veteran’s currently diagnosed diabetes mellitus, type II, and CVA may be related to service, to include exposure to herbicides. See 38 C.F.R. § 3.156(a). As such, the issues of entitlement to service connection for diabetes mellitus, type II, and CVA are reopened. REASONS FOR REMAND Entitlement to service connection for diabetes mellitus, type II, CVA and hypertension are remanded. In light of reopening the claims for service connection for diabetes mellitus, type II and CVA, the Board finds that further development is necessary. The record indicates that the Veteran has been receiving disability benefits from the Social Security Administration (SSA). However, SSA records have not been associated with the file and it does not appear that VA has attempted to obtain the SSA records. A remand is required to allow VA to request these records. It appears that the Veteran has received continuing treatment at the VA. However, VA clinical records dated from approximately January 2003 to September 2013 have not been associated with the record. As these records are constructively of record, they should be obtained. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Additional VA clinical records dated from July 2016 to the present should also be obtained. Moreover, as discussed above, the Veteran asserts that his diabetes mellitus, type II, is due to exposure to herbicide agents while in service. However, it does not appear that the steps outlined in the Veterans Benefits Administration (VBA) Adjudication Procedure Manual were followed. The manual directs that, for claims based on exposure to herbicide agents in locations other than Vietnam, Korean DMZ, or Thailand, the AOJ is to send an e-mail with the dates, location, and circumstances of claimed herbicide exposure to Compensation Service and request a review of the Department of Defense’s inventory of herbicide operations to determine whether herbicides were used as claimed. See VBA Manual, IV.ii.1.H.7.a. If the Compensation Service is unable to confirm that the herbicides were so used, then the information is to be submitted to the (JSRRC) to determine whether such exposure can be verified. If the JSRRC is unable to verify the exposure, the case must be referred to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist. It does not appear that any request was sent to Compensation Service and in turn, to the JSRRC. In sum, to date, there has been no effort to determine whether the Veteran was exposed to herbicide agents while he was stationed at Fort Hood. As such, on remand, the AOJ must undertake this development. As the Veteran contends that his CVA and hypertension are secondary to his diabetes mellitus, type II, these issues are inextricably intertwined with the claim for service connection for diabetes mellitus. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Furthermore, the Board notes that the Veteran’s service treatment records appear to document elevated blood pressure readings. There were also reports of dizziness and a diagnosis of orthostatic hypotension. As such, the Board finds that a VA examination is necessary to determine the etiology of the Veteran’s hypertension. The matters are REMANDED for the following action: 1. Follow the guidance provided in the VBA Manual, IV.ii.1.H.7.a, in order to ascertain whether the Veteran was exposed to herbicide agents while stationed at Fort Hood. All requests and responses received should be associated with the record. 2. Obtain the Veteran’s records from SSA. Document all requests for information as well as all responses in the claims file. 3. Obtain the Veteran’s VA treatment records for the periods from January 2003 to September 2013 and from July 2016 to the present. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of hypertension. The examiner must opine whether it at least as likely as not (1) began during active service, (2) manifested within one after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) whether it is at least as likely as not related to an in-service injury, event, or disease, including the documented elevated blood pressure readings. If and only if exposure to herbicide agents is verified, the examiner should offer an opinion on whether it is at least as likely as not related to in-service herbicide agent exposure. If and only if service connection is awarded for diabetes mellitus, the examiner should offer an opinion on whether it is at least as likely as not that CVA and hypertension are proximately due to or aggravated by diabetes mellitus, type II. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.N. Moats 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.