Citation Nr: 20042301 Decision Date: 06/22/20 Archive Date: 06/22/20 DOCKET NO. 19-16 126 DATE: June 22, 2020 ORDER The application to reopen the claim for service connection for residuals of heat stroke to include as secondary to service-connected anhidrosis is granted. REMANDED Entitlement to service connection for residuals of heat stroke to include as secondary to service-connected disease or injury is remanded. Entitlement to service connection for type 2 diabetes mellitus to include as secondary to service-connected disease or injury is remanded. FINDINGS OF FACT 1. In a June 2014 rating decision, the RO denied the Veteran’s claim of entitlement tot service connection for residuals of heat stroke to include as secondary to service-connected anhidrosis; the Veteran did not appeal this decision by submission of a timely substantive appeal following the issuance of an October 2015 statement of the case (SOC). 2. The evidence received since the June 2014 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for residuals of heat stroke. CONCLUSIONS OF LAW 1. The June 2014 rating decision denying service connection for residuals of heat stroke to include as secondary to anhidrosis is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2019). 2. Since the June 2014 rating decision, new and material evidence has been received with respect to the Veteran’s claim of entitlement to service connection for residuals of heat stroke; therefore, the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1962 to June 1965. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Application to reopen residuals of heat stroke In general, rating decisions that are not timely appealed are final. See 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 20.1100, 20.1103 (2019). Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. “New” evidence means evidence not previously submitted to the agency decision-maker. “Material” evidence means 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. See 38 C.F.R. § 3.156(a) (2019). The threshold for determining if there is new and material evidence is low. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In the determination of whether new and material evidence has been received, the credibility of the evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The VA is not, however, bound to consider credible that which is the patently incredible. See Duran v. Brown, 7 Vet. App. 216 (1994). The RO denied service connection for residuals of heat stroke to include as secondary to service-connected anhidrosis in a June 2014 rating decision. In essence, there was no evidence of an in-service heat stroke and no evidence linking the disorder to the anhidrosis. Although the Veteran filed a timely notice of disagreement to the June 2014 rating decision, he did not complete his appeal with the filing of a timely substantive appeal following the issuance of an October 2015 statement of the case. The June 2014 rating decision therefore became final. At the time of the prior final rating decision in June 2014, the record in pertinent part included the Veteran’s service treatment records as well as a September 2014 private treatment record from P.M., M.D. who reported that the Veteran cannot tolerate heat due to his anhidrosis. The Veteran’s service treatment records were absent complaints of or treatment for a heat stroke or residuals thereof. The record also included a medical article regarding anhidrosis. Further, the record included statements from multiple individuals detailing the Veteran’s inability to sweat. As the June 2014 rating decision is final, new and material evidence is therefore required to reopen the claim. In reviewing the evidence added to the claims folder since the June 2014 denial, the Board finds that additional evidence has been submitted which is sufficient to reopen the Veteran’s claim. Specifically, an August 2016 private treatment record from V.F., M.D. documents the Veteran’s treatment for anhidrosis and heat stroke as well as her opinion that it is possible that the heat stroke residuals could be neurological given the progression of the anhidrosis. As indicated above, the Veteran’s previous claim was denied because there was no evidence of residuals of heat stroke related to service or the service-connected anhidrosis. As the new evidence potentially indicates a relationship between the Veteran’s residuals of heat stroke and anhidrosis, the Board finds that the new evidence relates to an unestablished fact necessary to substantiate the claim. As new and material evidence has been received, the claim for service connection for residuals of heat stroke is reopened. REASONS FOR REMAND Service connection for residuals of heat stroke and type 2 diabetes mellitus The Veteran contends he has type 2 diabetes mellitus and residuals of heat stroke that are related to service or are alternatively secondary to his service-connected anhidrosis. The Board notes that the Veteran’s service treatment records are absent complaints of or treatment for type 2 diabetes mellitus and a heat stroke. However, there is no medical opinion of record as to a relationship between the Veteran’s diabetes mellitus and the anhidrosis. Moreover, although Dr. V.F. opined in a private August 2016 evaluation that it is possible that the Veteran’s heat stroke residuals are neurological given the progression of the anhidrosis, there is no other medical opinion of record as to a relationship whether the Veteran has residuals of heat stroke related to the anhidrosis. As the Veteran currently evidences diabetes mellitus and possible residuals of a heat stroke and has submitted medical articles linking these disabilities to anhidrosis, the Board finds that medical opinions as to whether these disabilities are caused or aggravated by the service-connected anhidrosis should be obtained on remand. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriately qualified examiner to determine the likely etiology of his type 2 diabetes mellitus and residuals of heat stroke, if any. Based on the review and the examination, the examiner should render an opinion as to the following: a. The examiner should confirm the presence of diabetes mellitus. b. Assuming he has diabetes mellitus, whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran has type 2 diabetes mellitus that is caused or aggravated by his service-connected anhidrosis. If the examiner finds that the type 2 diabetes mellitus is aggravated by the service-connected anhidrosis, then he/she should quantify the degree of aggravation, if possible. c. Determine whether there are any residuals of heat stroke. If there are residuals of heat stroke, whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran has residuals of heat stroke that are caused or aggravated by his service-connected anhidrosis. If the examiner finds that the residuals of heat stroke are aggravated by the service-connected anhidrosis, then he/she should quantify the degree of aggravation, if possible. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. 2. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his attorney with the requisite period of time to respond. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Arif Syed, 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.