Citation Nr: 20021874 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 14-32 987 DATE: March 27, 2020 ORDER New and material evidence has been presented, and the claim of entitlement to service connection for allergies is reopened; the appeal is granted to this extent only. New and material evidence has been presented, and the claim of entitlement to service connection for diabetes mellitus, type 2, is reopened; the appeal is granted to this extent only. New and material evidence has been presented, and the claim of entitlement to service connection for hypertension is reopened; the appeal is granted to this extent only. REMANDED Entitlement to service connection for allergies, described as a skin rash, is remanded. Entitlement to service connection for diabetes mellitus, type 2, to include as due to exposure to herbicides, is remanded. Entitlement to service connection for hypertension, to include as due to exposure to herbicides and/or as secondary to diabetes mellitus, type 2, is remanded. Entitlement to service connection for ischemic heart disease, to include as due to exposure to herbicides and/or as secondary to diabetes mellitus, type 2, is remanded. Entitlement to service connection for bilateral diabetic retinopathy, as secondary to diabetes mellitus, type 2, is remanded. Entitlement to service connection for erectile dysfunction, as secondary to diabetes mellitus, type 2, is remanded. Entitlement to service connection for a bilateral kidney disorder, as secondary to diabetes mellitus, type 2, is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, to include as due to exposure to herbicides and/or as secondary to diabetes mellitus, type 2, is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as due to exposure to herbicides and/or as secondary to diabetes mellitus, type 2, is remanded. FINDINGS OF FACT 1. Entitlement to service connection for allergies, diabetes mellitus, type 2, and hypertension were denied by the RO in a February 2003 rating decision; the Veteran did not appeal or submit new and material evidence within one year of the decision. 2. Some of the evidence received since the February 2003 rating decision was not previously submitted, relates to an unestablished fact necessary to substantiate the claims, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claims for service connection for allergies, diabetes mellitus, type 2, and hypertension. CONCLUSIONS OF LAW 1. The February 2003 rating decision that denied entitlement to service connection for allergies, diabetes mellitus, type 2, and hypertension is final. 38 U.S.C. §§ 5109A, 7105; 38 C.F.R. §§ 3.105 (a), 3.156, 20.1103. 2. The evidence received since the February 2003 rating decision is new and material, and the Veteran’s claims for service connection for allergies, diabetes mellitus, type 2, and hypertension, are reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1972 to June 1975. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from August 2012, November 2013, and January 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in November 2019 by the undersigned Veterans Law Judge. A transcript is associated with the record. Petitions to Reopen 1. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for allergies. 2. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for diabetes mellitus, type 2. 3. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for hypertension. The Veteran seeks to reopen his previously denied claims for entitlement to service connection for allergies, diabetes mellitus, type 2, and hypertension. Notwithstanding determinations by the RO that new and material evidence has or has not been received to reopen the Veteran’s claims, the Board is required to determine whether new and material evidence has been presented. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (holding that the Board has a legal duty under 38 U.S.C. §§ 5108 and 7104, to address the question of whether new and material evidence has been presented to reopen a previously denied claim); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). 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, 283 (1996). 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). The record with respect to the claims for entitlement to service connection for allergies, diabetes mellitus, type 2, and hypertension reflect that they were last denied in a rating decision of February 2003. The RO noted that there was no evidence the Veteran’s allergies, hypertension or diabetes mellitus, type 2, were causally or etiologically due to service and the RO was unable to confirm exposure to herbicides. The Veteran did not express timely disagreement, new and material evidence was not associated with the file within one year, and subsequently the rating decision became final. Evans v. Brown, 9 Vet. App. 273, 285 (1996). As such, the Veteran’s claims for service connection may only be reopened if new and material evidence is submitted. In this instance, since the February 2003 rating decision denied the claims on the basis that there was no evidence that the disorders had an onset during service or were causally or etiologically due to service, and that exposure to herbicides could not be conceded, the Board finds that new and material evidence would consist of evidence that the disorders had an onset during service, were causally or etiologically due to service, or that the Veteran was exposed to herbicides during service. The evidence received since the February 2003 rating decision consists of numerous records and documents. First, the Veteran clarified during testimony in November 2019 that his allergy symptoms during service consisted of a type of skin rash. The Board notes that service treatment records document skin rashes. Regarding diabetes mellitus, type 2, and hypertension, the Board notes that the Veteran provided testimony in November 2019 describing his location and duties during service where he believes he was exposed to herbicides. As a result, the Board finds that this additional evidence is neither cumulative nor redundant, and it is material since the evidence raises the possibility of substantiating the claims of service connection. The Board determines that the claims are reopened. REASONS FOR REMAND The Veteran seeks entitlement to service connection for allergies, diabetes mellitus, type 2, hypertension, a heart disorder, bilateral diabetic retinopathy, erectile dysfunction, a bilateral kidney disorder, and peripheral neuropathy of the bilateral upper and lower extremities. Evidence in the claims file indicates the Veteran receives Social Security disability. These records should be obtained and associated with the claims file. See Murincsak v. Derwinski, 2 Vet. App. 363 (1993). Additionally, the Veteran testified that he receives treatment from Dr. A., Dr. H., and Dr. A. See November 2019 BVA Hearing Transcript, pages 7, 13. He also testified in November 2019 that he continues to receive treatment at VA Medical Center; however, the most recent treatment record associated with the claims file is from 2017. On remand, these records should be obtained and associated with the claims file. 4. Entitlement to service connection for allergies, described as a skin rash, is remanded. The Veteran asserts he began experiencing allergy symptoms during service, in the form of a skin rash, described as welts. Service treatment records document several instances of rashes. In September 1973, the Veteran sought treatment for a rash on his back. In May 1977, the Veteran complained of a rash on his arms and trunk, with pruritis worse at night. The impression was rule out mite bites. The Veteran testified in November 2019 that he continues to experience rashes. To date, the Veteran has not yet been afforded a VA examination. On remand, the Veteran should be afforded a VA examination and a medical opinion should be obtained. 5. Entitlement to service connection for diabetes mellitus, type 2, to include as due to exposure to herbicides, is remanded. 6. Entitlement to service connection for hypertension, to include as due to exposure to herbicides and/or as secondary to diabetes mellitus, type 2, is remanded. 7. Entitlement to service connection for a heart disorder, to include as due to exposure to herbicides and/or as secondary to diabetes mellitus, type 2, is remanded. 8. Entitlement to service connection for bilateral diabetic retinopathy, as secondary to diabetes mellitus, type 2, is remanded. 9. Entitlement to service connection for erectile dysfunction, as secondary to diabetes mellitus, type 2, is remanded. 10. Entitlement to service connection for a bilateral kidney disorder, as secondary to diabetes mellitus, type 2, is remanded. 11. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, to include as due to exposure to herbicides and/or as secondary to diabetes mellitus, type 2, is remanded. 12. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as due to exposure to herbicides and/or as secondary to diabetes mellitus, type 2, is remanded. The Veteran asserts he was exposed to herbicides while serving on the U.S.S. Impervious. Personnel records indicate he served aboard the ship from October 1972 to November 1973. Effective January 1, 2020, the Blue Water Navy Vietnam Veterans Act of 2019, implemented in 38 U.S.C. § 1116A, extends the presumption of herbicide exposure to service within the offshore waters of the Republic of Vietnam. On remand, the Veteran’s claims should be developed according to the new law. The Board notes that the Veteran asserts his hypertension, bilateral diabetic retinopathy, erectile dysfunction, bilateral kidney disorder, and peripheral neuropathy of the bilateral upper and lower extremities are secondary to his diabetes mellitus, type 2, and as such, these issues are inextricably intertwined with his claim for diabetes mellitus, type 2, and are deferred pending development on remand. The matters are REMANDED for the following action: 1. Contact the Social Security Administration and obtain any administrative decisions and all medical records used in adjudicating the Veteran’s claim for disability benefits. If these records are unobtainable, a negative reply must be noted in writing and associated with the claims file. 2. Obtain and associate with the claims file all updated VA (since 2017) and private treatment records, to include, but not limited to, treatment records from private physician Dr. A., Dr. H., and Dr. A. (all referred to during the November 2019 BVA Hearing). 3. Afford the Veteran a VA examination for his claimed allergies, described as a skin rash. The claims folder must be provided to the examiner for review. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should opine as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s allergies, described as a skin rash, had an onset during service, or is causally or etiologically due to service, to include the documented in-service skin rashes in September 1973 and May 1977. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Develop the Veteran’s claims as appropriate according to 38 U.S.C. § 1116A and the Blue Water Navy Vietnam Veterans Act of 2019 to determine whether the Veteran was within 12 nautical miles of Vietnam while serving aboard the U.S.S. Impervious from October 1972 to November 1973. 5. If exposure to herbicides is conceded, obtain VA medical opinions as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s claimed hypertension, erectile dysfunction, bilateral kidney disorder, and peripheral neuropathy of the bilateral upper and lower extremities are proximately due to or aggravated (beyond a natural progression) by his diabetes mellitus, type 2. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Andersen, 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.