Citation Nr: 21061559 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 17-32 079 DATE: October 4, 2021 ORDER The appeal to reopen service connection for diabetes mellitus is granted. The appeal to reopen service connection for bilateral upper extremity peripheral neuropathy is granted. The appeal to reopen service connection for glaucoma is granted. REMANDED Service connection for diabetes mellitus is remanded. Service connection for bilateral upper extremity peripheral neuropathy is remanded. Service connection for glaucoma is remanded. FINDINGS OF FACT 1. An October 2014 rating decision denied service connection for diabetes, bilateral upper extremity peripheral neuropathy, and glaucoma, finding that the evidence did not show an in-service injury, disease, or event to which the diagnosed diabetes mellitus, bilateral upper extremity peripheral neuropathy, and glaucoma could be linked. 2. The Veteran did not timely file a notice of disagreement (NOD) following the October 2014 rating decision, and new and material evidence was not received during the one-year appeal period following that decision. 3. Evidence received since the October 2014 rating decision relates to an unestablished fact of a symptoms of a diabetes, bilateral upper extremity peripheral neuropathy, and glaucoma disease in service. CONCLUSIONS OF LAW 1. The criteria to reopen service connection for diabetes mellitus have been met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. The criteria to reopen service connection for bilateral upper extremity peripheral neuropathy have been met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156, 20.302, 20.1103. 3. The criteria to reopen service connection for glaucoma have been met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant, served on active duty from July 1976 to July 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision from the Regional Office (RO), which denied reopening of service connection for diabetes mellitus, bilateral upper extremity peripheral neuropathy, and glaucoma. This case was previously before the Board in March 2019, where the issues on appeal were remanded. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall v. West, 11 Vet. App. 268, 271 (1998). As the Board grants reopening of service connection for diabetes, bilateral upper extremity peripheral neuropathy, and glaucoma, the issues will be remanded, in part, for compliance with the Board's remand orders. Legal Criteria for Reopening Service Connection Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. "[N]ew evidence" means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial. 38 C.F.R. § 3.156(a). Materiality has two components, first, that the new evidence pertains to the reason(s) for the prior final denial, and second, that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When deciding whether the submitted evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying concepts derived from the duty to assist. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Id. at 117-118. Regardless of the RO's determination as to whether new and material evidence had been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus v. Principi, 3 Vet. App. 510, 512 (1992). Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened. Once the case is reopened, the presumption as to the credibility no longer applies. Id at 513. 1. Reopening of service connection for diabetes mellitus is granted. 2. Reopening of service connection for bilateral upper extremity peripheral neuropathy is granted. 3. service connection for glaucoma is granted. In this case, an October 2014 rating decision denied service connection for diabetes mellitus, bilateral upper extremity peripheral neuropathy, and glaucoma on the grounds that the evidence did not show an in-service event, injury, or psychiatric disease for which to nexus could be established to the diagnosed diabetes mellitus, bilateral upper extremity peripheral neuropathy, or glaucoma conditions. The Veteran did not submit a timely Notice of Disagreement (NOD) following the October 2014 rating decision, and new and material evidence was not received during the one-year appeal period following the decision. As such, the October 2014 rating decision became final as to the evidence then of record and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b), 20.302, 20.1103. Since the October 2014 rating decision denying service connection for diabetes mellitus, bilateral upper extremity peripheral neuropathy, and glaucoma, VA has received additional evidence that relates to an in-service disease of diabetes mellitus, bilateral upper extremity peripheral neuropathy, and glaucoma. See December 2020 correspondence; see also November 1978 service treatment record. Presuming the credibility of such new evidence for the purpose of reopening the claim, such evidence relates to the unestablished fact an in-service disease of diabetes, bilateral upper extremity peripheral neuropathy, and glaucoma, so could reasonably substantiate the issue of service connection for diabetes, bilateral upper extremity peripheral neuropathy, and glaucoma. For this reason, the Board finds that the additional evidence is new and material to reopen service connection for diabetes, bilateral upper extremity peripheral neuropathy, and glaucoma. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND 4. Service connection for diabetes mellitus is remanded. 5. Service connection for bilateral upper extremities peripheral neuropathy is remanded. 6. Service connection for glaucoma is remanded. Outstanding Service Treatment Records The Veteran contends service connection is warranted for diabetes mellitus, and that peripheral neuropathy and glaucoma are complications of diabetes mellitus. In December 2020 correspondence the Veteran reported that he was sent for a six-week elevator maintenance course in Treasure Island, California, in April 1978. During this time the Veteran contends that he was treated at the dispensary for blurred vision and painful skin rashes all over his body. The Veteran asserts that the physician at the dispensary told him his symptoms were due to diabetes. It does not appear that service treatment records were obtained from the medical facility in Treasure Island; therefore, on remand, the RO should request any service treatment records from the Naval medical clinic of facility in Treasure Island, California, for the period from April 1978 to May 1978. Outstanding VA Treatment Records On remand, the RO was asked to obtain "complete VA treatment records from the West Los Angeles facility, to specifically include those from May 2011." A review of the record shows that on October 30, 2019 the RO requested VA treatment records from West Los Angeles VA Medical Center (VAMC). While the record indicates that no progress notes were found at Palo Alto and Las Vegas VAMCs, the record does not reflect a response on the availability of such records from West Los Angeles VAMC. As such, during this remand the RO should attempt again request any outstanding VA treatment records from West Los Angeles VAMC and document any response. If the records are not located, the RO should make a formal finding of unavailability of such records, and state the efforts undertaken to obtain these records. VA examination and Opinion The Veteran contends that service connection for bilateral upper extremity peripheral neuropathy is warranted due to service or as due to diabetes. The service treatment records show that in November 1978 the Veteran was treated for complaints of numbness to both forearms and hands, as well as some pain in the right forearm. As the service treatment records reflect symptoms of numbness and pain in both upper extremities, a VA examination and medical opinion is warranted to help assess whether the current bilateral upper extremity peripheral neuropathy is related to symptoms of numbness and pain in the forearms and hands during service. The matters are REMANDED for the following action: 1. The RO should request any outstanding service treatment records for the period from April 1978 to May 1978 from any Treasure Island medical facility. If records cannot be obtained, the Veteran should be informed, with a formal memorandum to the file to document all efforts. 2. Obtain and associate with the claim file all outstanding VA treatment records from West Los Angeles VAMC from May 2011 through present date. If records cannot be obtained, the Veteran must be properly informed and a formal memorandum to the file documenting all efforts should be rendered. 3. Request a VA peripheral neuropathy opinion to help assess the relationship, if any, between the bilateral upper extremity peripheral neuropathy disorder and active service. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The following opinion is requested: Is it at least as likely as not (50 percent or higher degree of probability) that any currently diagnosed bilateral upper extremity peripheral neuropathy was caused by or etiologically related to symptoms of numbness and pain in the bilateral forearm and hands during service? The VA examiner should address the November 1978 service treatment record documenting symptoms of numbness to both forearms and hands and some pain in right forearm. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Shanna 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.