Citation Nr: 21003051 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-02 490 DATE: January 19, 2021 ORDER The Veteran’s petition to reopen the previously denied claim of entitlement to service connection for diabetes mellitus is granted. REMANDED The claim of whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for headaches, to include as due to exposure to Gulf War environmental hazards, is remanded. The claim of whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for irritable bowel syndrome, to include as due to exposure to Gulf War environmental hazards, and to include as due to the non-service-connected diabetes mellitus, is remanded. The claim of entitlement to service connection for diabetes mellitus, to include as due to exposure to Gulf War environmental hazards, is remanded. The claim of entitlement to service connection for a bilateral eye disorder, to include diabetic retinopathy, and to include as secondary to the non-service-connected diabetes mellitus, is remanded. FINDINGS OF FACT 1. An unappealed September 2009 rating decision denied service connection for diabetes mellitus. 2. The evidence pertaining to the Veteran's diabetes mellitus submitted subsequent to the September 2009 rating decision was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The September 2009 rating decision that denied service connection for diabetes mellitus is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been submitted to reopen the Veteran's claim of entitlement to service connection for diabetes mellitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from February 1987 to April 1991, to include service in Southwest Asia during the Persian Gulf War. These issues are on appeal from a November 2013 rating decision. On his January 2016 VA Form 9, the Veteran requested a Board of Veterans’ Appeals (Board) hearing. In April 2019, the Veteran and his representative were sent a letter notifying them that the Board hearing had been scheduled for June 2019. The Veteran failed to report for the scheduled Board hearing, and the Veteran and his representative have not provided good cause for their absence. Accordingly, the Board hearing request is considered withdrawn. 1. Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for diabetes mellitus. The Veteran seeks to reopen his previously denied claim of entitlement to service connection for diabetes mellitus based on the submission of new and material evidence. The Agency of Original Jurisdiction (AOJ), by a decision entered in September 2009, denied the Veteran’s claim for service connection for diabetes mellitus. The Veteran filed a Notice of Disagreement in December 2009. The AOJ then issued a Statement of the Case (SOC) in May 2010. The AOJ notified the Veteran of its decision and of his appellate rights in a May 2010 letter attached to the SOC. However, the Veteran did not perfect an appeal of the AOJ’s decision by submitting a VA Form 9. New and material evidence was also not received within a year of the September 2009 rating decision. 38 C.F.R. § 3.156(b). As a result, the AOJ’s September 2009 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is 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). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the September 2009 rating decision, service connection for diabetes mellitus was denied because there was no link between the current diagnosis and the Veteran’s active military service. The evidence received since the AOJ’s September’s 2009 rating decision includes lay statements from the Veteran and his representative, and VA treatment records. This evidence was not before adjudicators when the Veteran’s claim was last denied in September 2009, and it is not cumulative or redundant of the evidence of record at the time of that decision. It also relates to an unestablished fact necessary to substantiate the claim for service connection for diabetes mellitus and raises a reasonable possibility of substantiating the claim. Specifically, the United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what evidence is new and material, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the VA Secretary's duty to assist by providing a medical opinion. Id. Since the September 2009 rating decision, the Veteran argued in a March 2016 statement that the in-service immunizations he received prior to his deployment caused his diabetes mellitus. This was the first time the Veteran made this argument. His service treatment records (STRs) document in-service immunizations, and he was diagnosed with diabetes mellitus by the VA Medical Center (VAMC) in August 2013. To date, the Veteran has not been afforded a VA medical opinion and the Board finds that this evidence is sufficient to warrant one. As stated above, new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the VA Secretary's duty to assist by providing a medical opinion. Id. Accordingly, new and material evidence is demonstrated, and the claim of entitlement to service connection for diabetes mellitus is reopened. REASONS FOR REMAND 1. The claim of whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for headaches, to include as due to exposure to Gulf War environmental hazards, is remanded. 2. The claim of whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for irritable bowel syndrome, to include as due to exposure to Gulf War environmental hazards, and to include as due to the non-service-connected diabetes mellitus, is remanded. Evidence indicates that there may be outstanding relevant VA treatment records. On his June 2009 VA 21-526 Form (when he filed his original service connection claims), the Veteran reported that he was treated at the VAMC in Biloxi, Mississippi, since February 2002 for irritable bowel syndrome and since August 2002 for headaches. The earliest VA treatment records from this facility are dated in March 2009, and the AOJ has not made attempts to obtain any earlier dated records. To date, the Veteran does not have diagnoses of irritable bowel syndrome or headaches in the record. In April 2018, the Veteran’s representative also submitted copies of the Veteran’s treatment records from the VAMC in East Orange, New Jersey, with the most recent dated in September 2017. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain the 2002-2009 records from the VAMC in Biloxi and the recent records from the VAMC in East Orange. 3. The claim of entitlement to service connection for diabetes mellitus, to include as due to exposure to Gulf War environmental hazards, is remanded. The Board cannot make a fully-informed decision on the diabetes mellitus issue because no VA examiner has opined whether the Veteran’s currently diagnosed diabetes mellitus is related to his exposure to Gulf War environmental hazards (see September 2009 Veteran statement) and/or his in-service immunizations (see March 2016 Veteran statement). The Veteran’s representative also requested that VA opinions be obtained. See September 2014 and January 2016 statements. Accordingly, a VA medical opinion must be obtained upon remand. 4. The claim of entitlement to service connection for a bilateral eye disorder, to include diabetic retinopathy, and to include as secondary to the non-service-connected diabetes mellitus, is remanded. The Board cannot make a fully-informed decision on the eyes issue because no VA examiner has opined whether the Veteran’s currently diagnosed diabetic retinopathy (see August 2013 VA treatment record) is related to service. The Veteran’s January 1987 military entrance examination documents 20/20 (normal) vision in both eyes. However, his April 1991 military exit examination reveals 20/25 distant vision in the left eye, which suggests a worsening of the left eye. To date, the Veteran has not been afforded a VA examination and medical opinion for this claim. The Veteran’s representative requested that VA examinations be obtained. See September 2014 and January 2016 statements. Accordingly, a VA examination and medical opinion must be obtained upon remand. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s pertinent VA treatment records for the period from February 2002 to March 2009 from Biloxi, Mississippi, VAMC. 2. Obtain the Veteran’s pertinent VA treatment records for the period from September 2017 to the Present from the East Orange, New Jersey, VAMC. 3. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s currently diagnosed diabetes mellitus. The examiner must review the claims file and provide a rationale to support the opinions. The examiner is asked to provide a response to the following: Is the Veteran’s diabetes mellitus at least as likely as not related to service, including his exposure to Gulf War environmental hazards and/or in-service immunizations? Is it at least as likely as not that the diabetes mellitus (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? In forming the opinions, the examiner must address the lay statements from the Veteran, the Veteran’s spouse, and the Veteran’s dad. 4. Schedule the Veteran for a VA examination of his bilateral eye disorder. For each current eye diagnosis (to include the already diagnosed diabetic retinopathy), the examiner is asked to opine whether the diagnosis is at least as likely as not related to the Veteran’s active military service, including the notation of 20/25 distant vision in the left eye on the April 1991 exit examination. The examiner must review the claims file and provide a rationale to support the opinion.   5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shauna M. Watkins, 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.