Citation Nr: 20046831 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 00-15 961 DATE: July 13, 2020 ORDER The appeal to reopen service connection for diabetes mellitus based on the receipt of new and material evidence is denied. The appeal to reopen service connection for a left leg disability based on the receipt of new and material evidence is granted. REMANDED Entitlement to special monthly compensation based on the need for aid and attendance or at the housebound rate is remanded. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for diabetes mellitus is remanded. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for bilateral foot disability is remanded. Entitlement to service connection for a left leg disability is remanded. FINDINGS OF FACT 1. An August 2005 Board decision denied service connection for diabetes mellitus; the portion of the decision related to service connection for diabetes mellitus, as opposed to entitlement to compensation under 38 U.S.C. § 1151 for diabetes mellitus, was not appealed or the subject of a motion for reconsideration of the Board’s decision. 2. Evidence received since the August 2005 Board denial is cumulative and redundant of the evidence of record at the time of the prior final decision, and therefore does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for diabetes mellitus. 3. In an April 1985 rating decision, the regional office (RO) denied service connection for left knee condition; the Veteran did not timely appeal that decision, and no new and material evidence was received within the appeal period. 4. Evidence received since the April 1985 rating decision is new, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a left leg disability, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. An August 2005 Board decision, which denied service connection for diabetes mellitus, is final. 38 U.S.C. § 7104(b); 38 C.F.R. § 20.1100. 2. New and material evidence has not been received to reopen a claim of entitlement to service connection for diabetes mellitus. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a), 20.1105. 3. An April 1985 rating decision, which denied service connection for a left knee condition, is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. 4. Evidence added to the record since the April 1985 denial is new and material, and the claim for entitlement to service connection for a left leg disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1974 to February 1975 with additional Reserve service. Unfortunately, the Veteran passed away in January 2016. The Appellant is the Veteran’s surviving spouse. Her request for substitution was accepted in October 2019 correspondence. These matters come before the Board of Veterans’ Appeals (Board) on appeal from April 2000 (compensation under the provisions of 38 U.S.C. § 1151 for diabetes mellitus), April 2009 (compensation under the provisions of 38 U.S.C. § 1151 for a bilateral foot disability), April 2011 (left leg and service connection for diabetes mellitus), and October 2014 (special monthly compensation) rating decisions. The issue of entitlement to compensation under the provisions of 38 U.S.C. § 1151 for diabetes mellitus was remanded several times before being denied by an August 2005 Board decision. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In July 2007, the Court issued a memorandum decision. While the July 2007 memorandum decision did not specifically enumerate which portions of the Board’s August 2005 decision had been vacated, the text of the memorandum notes that the issue on appeal was entitlement to compensation for diabetes mellitus under 38 U.S.C. § 1151. This issue, as well as the issue of entitlement to compensation under the provisions of 38 U.S.C. § 1151 for a bilateral foot disability, the appeal to reopen service connection for a left leg disability, and the appeal to reopen service connection for diabetes mellitus, were remanded most recently in January 2015 to schedule a hearing. This request for a hearing was withdrawn by March 2015 and November 2019 correspondence. Claims to Reopen A claimant has one year from notification of a 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(c); 38 C.F.R. §§ 3.156(b), 3.160, 20.201, 20.302. A claim that is the subject of a prior denial may be reopened if new and material evidence is received with respect to that claim. 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 evidence that is considered to determine whether new and material evidence has been received is the evidence received since the last final disallowance of the appellant’s claim on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). This evidence is presumed credible for the purposes of reopening an appellant’s claim, unless it is inherently false or untrue, or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). In determining whether new and material evidence has been received to reopen a claim, the Court has indicated that there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA’s duty to obtain a VA examination. Id. at 118. Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. at 120 (noting the assistance of 38 C.F.R. § 3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant to submit medical nexus evidence when he has provided new and material evidence as to another missing element). Once a claim is reopened, the adjudicator must review it on a de novo basis, with consideration given to all the evidence of record. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273 (1996). To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 1. The appeal to reopen service connection for diabetes mellitus based on the receipt of new and material evidence. VA has not received new and material evidence sufficient to reopen a claim of service connection for diabetes mellitus. Service connection for diabetes mellitus was initially denied by an August 2005 Board denial on the grounds that there is no competent evidence linking diabetes to a disease or injury in service. Although the Board decision was appealed to the CAVC, the CAVC’s July 2007 memorandum decision only discussed entitlement to compensation under the provisions of 38 U.S.C. § 1151 for diabetes mellitus. As such, the decision regarding entitlement to service connection for diabetes mellitus remains undisturbed and final. 38 U.S.C. § 7104(b); 38 C.F.R. § 20.1100. Since the August 2005 final denial, VA has received VA treatment records indicating ongoing treatment for diabetes mellitus. These records do not contain evidence that the Veteran’s diabetes mellitus was incurred in or is otherwise related to service. Therefore, this additional evidence is cumulative and redundant of evidence already in the record. Thus, the evidence added to the record since the August 2005 final denial does not relate to an unestablished fact necessary to substantiate the claim of service connection for diabetes mellitus and does not raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Accordingly, the claim of service connection for diabetes mellitus is not reopened. As new and material evidence to reopen the finally disallowed claim of entitlement to service connection for diabetes mellitus has not been received, the benefit of the doubt doctrine is not applicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). 2. The appeal to reopen service connection for a left leg disability based on the receipt of new and material evidence. VA has received evidence sufficient to reopen service connection for a left leg disability. Service connection for a left knee condition was denied by the RO in an April 1985 rating decision on the grounds that the Veteran’s service treatment records (STRs) were negative for a left knee condition. No appeal was taken from this rating decision, and new and material evidence was not received within the one-year appeal period. As such, the decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. Since the last final denial in April 1985, VA has received June 1995 treatment records in which the Veteran reported a long history of left knee pain secondary to an old injury in service, and in which the Veteran reported that his left knee problem began when he fell off of a tank in 1973. This evidence is relevant to an in-service event that the Veteran believes caused his left leg disability. Although the Veteran’s left leg disability during the period currently on appeal was identified in treatment records as hyperalgesia in the left lower extremity and deep vein thrombosis, rather than a knee disability, the Board notes that the Veteran, as a lay person without medical training, is not expected to be able to diagnose his particular condition. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the Board will resolve doubt in the Veteran’s favor and consider evidence regarding left knee pain as evidence regarding a left leg disability. The evidence thus relates to an unestablished fact necessary to substantiate the Veteran’s claim and raises a reasonable possibility of establishing the claim. See 38 C.F.R. § 3.156. Therefore, the evidence is new and material. Such new and material evidence having been received, the claim of entitlement to service connection for a left leg disability is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for diabetes mellitus is remanded. Although the Board sincerely regrets the delay, additional remand is required. In July 2007 the CAVC instructed to the Board to address the memorandum or opinion created by a medical expert in connection with the claim the Veteran brought under the Federal Tort Claims Act (FTCA) and ultimately settled with VA. In September 2013, the Board noted that although an October 2008 email indicated that a Senior Claims Examiner had “made several attempts” to complete the remand order instructing the AOJ to obtain this opinion, there is no detailed explanation as to what attempts were made, and there does not appear to be any response to the October 2008 e-mail requesting further assistance. The September 2013 Board remand instructed the AOJ to make additional attempts to locate the expert medical opinion. The remand instruction specifically stated that all attempts to obtain the opinion must be documented, and if the AOJ determines that the record does not exist or that further efforts to obtain it would be futile, the AOJ must document that determination. Unfortunately, there has not been substantial compliance with this remand instruction, and there is no indication in the record that additional attempts were made to obtain this medical opinion. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). A December 2008 VA medical opinion found that, in reviewing the blood sugar sugar record, it is likely that the Veteran was early type 2 diabetic as early as 1996, and that the Veteran’s blood sugars between 1989 and 1993 were higher than theoretically normal, but would not have been considered significant at the time. The examiner opined that while it is now clear that tight blood sugar control is necessary in order to minimize risk of complications, evidence to that effect was not available at the time of the event. The March 2014 VA medical opinion found that a March 1998 letter from a private physician stating that one isolated incidence of a high blood sugar can lead to complications and possibly death is overstated, and that it is more likely that the Veteran’s complications of diabetes are due to a prolonged condition of an elevated blood glucose and not to a single incidence. The March 2014 medical opinion thus raises a new issue, which is whether the prolonged period of elevated blood glucose between 1989 and 1993 that indicated a diagnosis of diabtes mellitus two years before he was ever diagnosed, as noted by the December 2008 examiner, caused any additional disability with respect to the Veteran’s diabetes mellitus. Moreover, the March 1998 letter contradicts the December 2008 VA clinician’s indication that in 1998, it was not known that tight blood sugar control is necessary to minimize risk of diabetic complications. Upon remand, an addendum opinion should be obtained that considers whether the long period of high blood sugar readings that did not result in a diagnosis of or treatment for diabetes mellitus by VA caused any additional disability. 2. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for bilateral foot disability is remanded. The VA medical opinions of record address bilateral foot disability as a residual or complication of the Veteran’s diabetes mellitus. However, a September 2014 statement from the Veteran’s representative stated that the Veteran’s foot pain was not treated properly by VA in March 2005 and resulted in additional pain and suffering, including a surgery from a private physician who removed a tumor from each foot. The medical records indicate that the “tumor” referred to by the Veteran and his representative is likely a reference to an excision of neuroma found in the Veteran’s bilateral feet in March 2005. The Board notes multiple VA treatment records from 2004 and early 2005 in which the Veteran sought treatment for foot pain and was told by VA that his pain was neuropathic. An August 2004 VA treatment note stated that the Veteran was advised that his foot pain was not related to a foot problem per se. A December 2004 VA treatment note indicates that the physician again attributed the Veteran’s foot pain to neuropathy, and could see no need to repeatedly re-evaluate this patient. Although a January 2005 VA treatment note indicated metatarsalgia, the treating physician again opined that there was a neuropathic component and did not reference neuroma. The VA treatment records do not diagnose the Veteran with the bilateral neuromas that were removed by the private physician in March 2005. Upon remand, a medical opinion should be obtained that considers whether VA’s failure to diagnose the Veteran’s foot pain as a neuroma in 2005, as opposed to diabetic neuropathy, was caused additional disability, and if so, whether that additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical treatment or due to an event not reasonably foreseeable. 3. Entitlement to service connection for a left leg disability is remanded. The Board cannot make a fully-informed decision on the issue of service connection for a left leg disability because no VA clinician has opined whether the Veteran had a left leg disability that was related to the in-service fall resulting in a head injury. A remand to obtain an opinion is required. Entitlement to special monthly compensation based on the need for aid and attendance or at the housebound rate is remanded. Finally, because a decision on the issues remanded above could significantly impact a decision on the issue of entitlement to special monthly compensation, the issues are inextricably intertwined. A remand of the claim for special monthly compensation is required. The matters are REMANDED for the following action: 1. Make additional attempts to locate the expert medical opinion obtained by VA related to the Veteran’s claim under the Federal Tort Claims Act (FTCA), as identified in the May 1999 correspondence. All attempts to obtain the opinion must be documented. If the AOJ determines that the record does not exist or that further efforts to obtain it would be futile, the AOJ must document that determination. 2. The AOJ should obtain an addendum opinion as to whether the delay in diagnosing and treating the Veteran’s diabetes mellitus caused additional disability. The clinician should provide the following opinions: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran sustained additional disability of diabetes mellitus as the result of VA medical treatment, to include failure to diagnose and treat diabetes mellitus in spite of elevated glucose readings beginning in 1989, which the December 2008 VA clinician found indicated that the Veteran was early type 2 diabetic as early as 1996; and failure to treat the Veteran when he presented with high glucose readings in January 1998? The clinician is asked to consider whether the long period of elevated glucose readings noted by the December 2008 VA clinician represents a prolonged condition of elevated blood glucose that is more likely to cause diabetic complications than a single incident, as referenced by the March 2014 VA clinician. (b.) If additional disability is found, is it at least as likely as not (50 percent or greater probability) that any such additional disability is the result of carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA in furnishing medical treatment, OR due to an event not reasonably foreseeable? Each opinion offered must be supported by a complete rationale. The clinician must reconcile his or her findings with (1) the December 2008 VA examiner’s finding that the Veteran’s glucose readings indicate that he was early type 2 diabetic as early as 1996, two years before he was diagnosed by a private physician; (2) the March 1998 private opinion which may indicate an awareness in the medical community in 1998 that there was a relationship between high blood sugar and diabetic complication; and (3) the May 1999 correspondence indicating that an expert reviewer engaged by VA in connection with the Veteran’s tort claim stated that the Veteran’s blood sugar was high on the day he came in and there should have been some follow-up. 3. Obtain an addendum opinion considering whether the VA treatment of the Veteran’s foot pain in 2004 and early 2005 caused any additional disability. The clinician should provide the following opinions: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran suffered additional disability, in the form of aggravation of a foot disability to include bilateral neuroma, as a result of VA medical treatment, to include repeatedly attributing the Veteran’s foot pain to diabetic neuropathy while failing to diagnose bilateral neuroma? (b.) If additional disability is found, is it at least as likely as not (50 percent or greater probability) that any such additional disability is the result of carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of the VA in furnishing medical treatment, OR due to an event not reasonably foreseeable? Each opinion offered must be supported by a complete rationale. The clinician is advised that the Veteran was told that his foot pain was not related to a foot problem per se in August 2004, and a treating physician found no need to repeatedly re-evaluate the Veteran in December 2004. (Continued on the next page)   4. Forward the claims file to an appropriate clinician to determine the nature and etiology of any left leg disability during the period on appeal (from October 8, 2010). The clinician must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran had a left leg disability during the period from October 8, 2010 to his death, to include deep vein thrombosis (DVT) and hyperalgesia in the left lower extremity, that is related to an in-service injury, event, or disease, including the fall that resulted in his head injury. The opinion offered must be supported by a complete rationale. Although the Veteran’s STRs do not contain evidence of a left leg injury, they do reference a head injury, and the Veteran reported in a June 1995 VA treatment record that he had a long history of left knee pain secondary to an old injury in service, and that his left knee problem began when he fell off a tank in 1973. The clinician should discuss whether a fall injuring one’s left knee in 1973 would result in the type of left leg disability that the Veteran suffered from during the period on appeal (beginning October 8, 2010). D. SMART Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Budd, 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.