Citation Nr: 20021602 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 14-17 956 DATE: March 26, 2020 ORDER As new and material evidence has not been received, the petition to reopen the claim of service connection for diabetes mellitus, type II is denied. Entitlement to service connection for peripheral neuropathy bilateral upper extremities is denied. Entitlement to service connection for peripheral neuropathy bilateral lower extremities is denied. Entitlement to service connection for erectile dysfunction is denied. FINDINGS OF FACT 1. A September 2006 rating decision denied service connection for diabetes mellitus. The Veteran received notice of this decision and did not appeal or file new and material evidence within one year. 2. The evidence received since the September 2006 rating decision is not new and material and does not related to an unestablished fact necessary to substantiate the Veteran's claim of service connection for diabetes mellitus. 3. The Veteran's peripheral neuropathy of the bilateral upper extremities is not due to service or secondary to a service-connected disorder. 4. The Veteran’s peripheral neuropathy bilateral of the lower extremities is not due to service or secondary to a service-connected disorder. 5. The Veteran’s erectile dysfunction is not due to service or secondary to a service-connected disorder. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the finally denied claim of entitlement to service connection for diabetes mellitus and the petition to reopen is denied. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2019). 2. The criteria for entitlement to service connection for peripheral neuropathy of the bilateral upper extremities have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310 (2019). 3. The criteria for entitlement to service connection for peripheral neuropathy of the bilateral lower extremities have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310 (2019). 4. The criteria for entitlement to service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran service on active duty in the United States Army from May 1966 to March 1968. New and Material Evidence Claims A final rating decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. §§ 5108, 7105. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). 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, 117 (2010). Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). Finally, for the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). A rating decision in September 2006 denied service connection for diabetes mellitus. Service connection for diabetes may be established based on a relationship to herbicide exposure only if the evidence shows the Veteran either served in Vietnam during the Vietnam era or was exposed to herbicides through some other military experience. The Veteran contended that he was exposed to herbicides based on service along the Demilitarized Zone (DMZ) in Korea. However, exposure to herbicides in Korea is conceded only if a veteran had service along the DMZ in one of the DOD identified units between April 1968 and July 1969. The Veteran’s records show he was discharged in March 1968, prior to the specified period. The Veteran has submitted no additional evidence of exposure to herbicides during his service. As there was no evidence of an injury or diagnosis in service and the Veteran did not serve along the DMZ in Korea during the presumptive period for service connection, his claim was denied. The Veteran filed a petition to reopen his claim in August 2012. Since the September 2006 rating decision, the new evidence consists of updated treatment records and an October 2016 VA examination report. However, the Veteran has not submitted any evidence in support of a nexus between his diabetes mellitus and service and an October 2016 VA examiner opined that his disorder was “most likely (greater that 50% probability) hyperglycemia due to morbid obesity and hypothyroid state due to Graves’ Disease of recent onset.” Therefore, the Board finds it is not material to the Veteran's claim and it does not raise a reasonable possibility of substantiating the claim of service connection for diabetes mellitus and his petition to reopen a claim of service connection is denied. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board’s adjudication will consider only entitlement to secondary service connection. 1. Entitlement to service connection for peripheral neuropathy bilateral upper extremities 2. Entitlement to service connection for peripheral neuropathy bilateral lower extremities 3. Entitlement to service connection for erectile dysfunction As the Veteran is not in receipt of service connection for diabetes, the Veteran's claims of secondary service connection cannot be granted. Additionally, the Board notes that the October 2016 VA examiner founds that his peripheral neuropathies and erectile dysfunction were more likely due to a diagnosis of Graves’ disease in 2014. This pathology is not service connected either. As the preponderance of the evidence is against the Veteran's claims of service connection, his claims are denied. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shana Z. Siesser, 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.