Citation Nr: 21063902 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-09 200 DATE: October 18, 2021 ORDER 1. The petition to reopen a claim of entitlement to service connection for dementia is denied. 2. The petition to reopen a claim of entitlement to service connection for a right eye disability is denied. 3. The petition to reopen a claim of entitlement to service connection for diabetes mellitus is granted. 4. The reopened claim of entitlement to service connection for diabetes mellitus is denied. FINDINGS OF FACT 1. A May 2014 rating decision denied the Veteran's claim for service connection for dementia because the evidence did not show an event, disease, or injury during active service or a link between current dementia and active service. The Veteran was properly notified of the decision and of his appeal rights that same month, but he did not thereafter submit a timely notice of disagreement (NOD) or submit new and material evidence within one year of the May 2014 notification regarding the rating decision. 2. Evidence submitted since the prior final May 2014 rating decision is either previously of record, cumulative or redundant of evidence already of record, or does not relate to an unestablished fact necessary to substantiate the Veteran's claim for service connection for dementia and does not raise a reasonable possibility of substantiating the claim. 3. An April 2011 rating decision denied the Veteran's claim for service connection for a right eye disability because there was no evidence of a right eye disease or injury or treatment for a right eye condition during active service and no evidence that a current right eye cataract was related to active service. The Veteran was properly notified of the decision and of his appeal rights that same month, but he did not thereafter submit a timely NOD or submit new and material evidence within one year of the April 2011 notification regarding the rating decision. 4. Evidence submitted since the prior final April 2011 rating decision is either previously of record, cumulative or redundant of evidence already of record, or does not relate to an unestablished fact necessary to substantiate the Veteran's claim for service connection for a right eye disability and does not raise a reasonable possibility of substantiating the claim. 5. A May 2014 rating decision denied the Veteran's claim for service connection for diabetes mellitus because the evidence did not show an event, disease, or injury during active service or a link between current diabetes mellitus and active service. The Veteran was properly notified of the decision and of his appeal rights that same month, but he did not thereafter submit a timely NOD or submit new and material evidence within one year of the May 2014 notification regarding the rating decision. 6. Evidence received since the May 2014 rating decision was not previously of record, or cumulative or redundant of evidence already of record, relates to an unestablished fact necessary to substantiate the claim for service connection for diabetes mellitus and, therefore, raises a reasonable possibility of substantiating the claim. 7. Diabetes mellitus did not have its onset during active service, did not manifest within one year of service discharge, and is not otherwise related to active service, to include as due to exposure to ionizing radiation. CONCLUSIONS OF LAW 1. The May 2014 rating decision that denied the Veteran's claim for service connection for dementia is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. 2. New and material evidence sufficient to reopen the claim for service connection for dementia has not been added to the record. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The April 2011 rating decision that denied the Veteran's claim for service connection for a right eye disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. 4. New and material evidence sufficient to reopen the claim for service connection for a right eye disability has not been added to the record. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. The May 2014 rating decision that denied the Veteran's claim for service connection for diabetes mellitus is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. 6. New and material evidence sufficient to reopen the claim for service connection for diabetes mellitus has been added to the record. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 7. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1977 to December 1977, in addition to subsequent periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). The Veteran and his spouse testified before the undersigned Veterans Law Judge at an October 2020 virtual hearing. These matters were previously remanded by the Board in April 2021 for additional development, specifically to obtain outstanding VA treatment records identified by the Veteran during the October 2020 hearing. Thereafter, VA treatment records from April 2020 to April 2021 were obtained and associated with the claims file. As such, the Board finds that there has been substantial compliance with prior remand directives and the matter is properly returned to the Board for appellate review. New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. However, a claim where there is a final decision may be reopened if new and material evidence is submitted. New evidence is defined as existing evidence not previously submitted to agency decisionmakers, while material evidence is defined as 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. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. 1. Whether new and material evidence has been received to reopen a claim for service connection for dementia. A May 2014 rating decision denied the claim for service connection for dementia because the evidence did not show an event, disease, or injury during active service or a link between current dementia and active service. The Veteran was properly notified of the decision and of his appeal rights that same month, but he did not thereafter submit a timely NOD or submit new and material evidence within one year of the May 2014 notification regarding the rating decision. As such, the May 2014 rating decision is final. Since the prior final May 2014 rating decision, evidence added to the file includes VA treatment records, private treatment records from Troy Regional Medical Center and Clinch Valley Medical Center, a May 2015 lay statement from the Veteran regarding his declining health, a statement from J.H., a neighbor, relating to her taking care of the Veteran and his spouse, and testimony from the Veteran and his spouse at the October 2020 hearing. Additionally, at the October 2020 Board hearing, the Veteran and his spouse testified that in the last few months, approximately three months before the hearing, the Veteran had seen a vascular surgeon at the Salem VA Medical Center, who had opined that the Veteran was exposed to radiation while stationed in Pirmasens, Germany, from working inside a facility that contained generators that were leaking radiation, and that all of the Veteran's claimed conditions are related to that exposure. The Board has carefully reviewed VA treatment records, which document that the Veteran was seen at the Salem VA Medical Center for a vascular surgery consultation in July 2020, at which time he was assessed with peripheral venous insufficiency and peripheral vascular disease. The examining physician noted that the Veteran also had some orthopedic issues and neurologic issues, mainly related to his diabetes. The physician stated, apparently based upon the Veteran's own report, that "there may have been exposure history during his military career in the Armed Forces" when the Veteran was based in Germany and nuclear weapons were housed and worked on in those areas where he was present. The physician stated that "[m]ore likely than not, the [Veteran's] diabetes, which he does not have any in his family, may have been caused by any exposures that he may have received in the military with exposures to the nuclear weapons including Nike Hercules missile systems that are in Europe." The Board has also considered the additional evidence added to the claims file, but significantly, while such evidence is new, in that it was not previously of record, the evidence added since the prior final May 2014 rating decision is not material, as it does not relate to an unestablished fact necessary to substantiate the claim for service connection for dementia. For example, the newly-added evidence does not establish an event, disease, or injury occurred during active service or whether there is a link between the Veteran's current dementia and his active service. To the extent the Veteran asserts that the July 2020 VA physician's statement supports his claim due to exposure to radiation during active service, the Board finds that the VA physician's statement lacks probative value, as it is based entirely on the Veteran's lay report and is speculative in nature; moreover, the physician's nexus opinion is limited to the Veteran's diabetes and does not address the Veteran's diagnosis of dementia. As the evidence submitted since the prior final May 2014 rating decision is cumulative or redundant of evidence already of record, does not relate to an unestablished fact necessary to substantiate the claim for service connection for dementia, and does not raise a reasonable possibility of substantiating the claim, the Board finds that the petition to reopen the claim for service connection for dementia is denied. 2. Whether new and material evidence has been received to reopen a claim for service connection for a right eye disability. An April 2011 rating decision denied the claim for service connection for a right eye disability because there was no evidence of a right eye disease or injury or treatment for a right eye condition during active service and no evidence that a current right eye cataract was related to active service. The Veteran was properly notified of the decision and of his appeal rights that same month, but he did not thereafter submit a timely NOD or submit new and material evidence within one year of the April 2011 notification regarding the rating decision. Since the prior final April 2011 rating decision, evidence added to the file includes VA treatment records; private treatment records from Pike Internal Medicine, Troy Regional Medical Center, and Clinch Valley Medical Center, a May 2015 lay statement from the Veteran regarding his declining health, a statement from J.H., a neighbor, relating to her taking care of the Veteran and his spouse, and testimony from the Veteran and his spouse at the October 2020 hearing. Additionally, as noted above, at the October 2020 Board hearing, the Veteran and his spouse testified that in the last few months, approximately three months before the hearing, the Veteran had seen a vascular surgeon at the Salem VA Medical Center who had opined that the Veteran was exposed to radiation while stationed in Pirmasens, Germany, from working inside a facility that contained generators that were leaking radiation, and that all of the Veteran's claimed conditions are related to that exposure. The Board has carefully reviewed VA treatment records, which document that the Veteran was seen at the Salem VA Medical Center for a vascular surgery consultation in July 2020, at which time he was assessed with peripheral venous insufficiency and peripheral vascular disease. The examining physician noted that the Veteran also had some orthopedic issues and neurologic issues, mainly related to his diabetes. The physician stated, apparently based upon the Veteran's own report, that "there may have been exposure history during his military career in the Armed Forces" when the Veteran was based in Germany and nuclear weapons were housed and worked on in those areas where he was present. The physician stated that "[m]ore likely than not, the [Veteran's] diabetes, which he does not have any in his family, may have been caused by any exposures that he may have received in the military with exposures to the nuclear weapons including Nike Hercules missile systems that are in Europe." The Board has also considered the additional evidence added to the claims file, but significantly, while such evidence is new, in that it was not previously of record, the evidence added since the prior final April 2011 rating decision is not material, as it does not relate to an unestablished fact necessary to substantiate the Veteran's claim. For example, the newly-added evidence does not establish an event, disease, or injury occurred during active service or whether there is a link between the Veteran's current right eye disability and his active service. To the extent the Veteran asserts that the July 2020 VA physician's statement supports his claim due to exposure to radiation during active service, the Board finds that the VA physician's statement lacks probative value, as it is based entirely on the Veteran's lay report and is speculative in nature; moreover, the physician's nexus opinion is limited to the Veteran's diabetes and does not address his right eye disability. As the evidence submitted since the prior final April 2011 rating decision is cumulative or redundant of evidence already of record, does not relate to an unestablished fact necessary to substantiate the claim for service connection for a right eye disability, and does not raise a reasonable possibility of substantiating the claim, the Board finds that the petition to reopen the claim for service connection for right eye disability is denied. 3. Whether new and material evidence has been received to reopen a claim for service connection for diabetes mellitus. A May 2014 rating decision denied the claim for service connection for diabetes mellitus because the evidence did not show an event, disease, or injury during active service or a link between current diabetes mellitus and active service. The Veteran was properly notified of the decision and of his appeal rights that same month, but he did not thereafter submit a timely NOD or submit new and material evidence within one year of the May 2014 notification regarding the rating decision. Since the prior final May 2014 rating decision, evidence added to the file includes VA treatment records, private treatment records from Troy Regional Medical Center and Clinch Valley Medical Center, a May 2015 lay statement from the Veteran regarding his declining health, a statement from J.H., a neighbor, relating to her taking care of the Veteran and his spouse, and testimony from the Veteran and his spouse at the October 2020 hearing. Additionally, as noted above, at the October 2020 Board hearing, the Veteran and his spouse testified that in the last few months, approximately three months before the hearing, the Veteran had seen a vascular surgeon at the Salem VA Medical Center who had opined that the Veteran was exposed to radiation while stationed in Pirmasens, Germany, from working inside a facility that contained generators that were leaking radiation, and that all of the Veteran's claimed conditions are related to that exposure. The Board has carefully reviewed VA treatment records, which document that the Veteran was seen at the Salem VA Medical Center for a vascular surgery consultation in July 2020, at which time he was assessed with peripheral venous insufficiency and peripheral vascular disease. The examining physician noted that the Veteran also had some orthopedic issues and neurologic issues, mainly related to his diabetes. The physician stated, apparently based upon the Veteran's own report, that "there may have been exposure history during his military career in the Armed Forces" when the Veteran was based in Germany and nuclear weapons were housed and worked on in those areas where he was present. The physician stated that "[m]ore likely than not, the [Veteran's] diabetes, which he does not have any in his family, may have been caused by any exposures that he may have received in the military with exposures to the nuclear weapons including Nike Hercules missile systems that are in Europe." After consideration of the above, the Board finds that the July 2020 VA physician's medical opinion evidence constitutes new and material evidence sufficient to warrant reopening of the Veteran's claim, as this evidence was not of record at the time of the prior final May 2014 rating decision, and it relates to a material element of the Veteran's claim, namely whether his current diabetes mellitus is related to his active service. Given the above, the Veteran's claim for service connection for diabetes mellitus is reopened. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. To establish a right to compensation for a disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. For certain chronic diseases, including diabetes mellitus, service connection may be granted on a presumptive basis if the disease is manifested to a compensable degree within one year following service discharge. Service connection for a disability based on ionizing radiation exposure during service may also be established in one of three ways: (a) presumptively service connected under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d) for radiation-exposed veterans, (b) directly service-connected after specified development procedures are conducted under the special framework of 38 C.F.R. § 3.311 if the claimed condition is a radiogenic disease, or (c) directly service connected by showing that the disease was incurred in, or aggravated by, service. A "radiation-exposed Veteran" is defined by 38 C.F.R. § 3.309(d)(3) as a veteran who while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. The term "radiation-risk activity" includes (1) on-site participation in a test involving the atmospheric detonation of a nuclear device; (2) the occupation of Hiroshima or Nagasaki, Japan, during the period beginning on August 6, 1945, and ending on July 1, 1946; (3) internment as a prisoner of war of Japan during World War II resulting in an opportunity for exposure to radiation comparable to those occupying Hiroshima or Nagasaki; and (4) certain service on the grounds of a gaseous diffusion plant in Paducah, Kentucky, Portsmouth, Ohio, or at area K25 at Oak Ridge, Tennessee; or certain service on Amchitka Island, Alaska. See 38 C.F.R. § 1112(c)(3)(B); 38 C.F.R. § 3.309(d)(3)(ii). A veteran is entitled to special development under 38 C.F.R. § 3.311 if such veteran has a radiogenic disease as listed under 38 C.F.R. § 3.311(b)(2)(i)-(xxiv), and such disease was manifested during specified periods as defined in 38 C.F.R. § 3.311(b)(5). After such development, if it is determined that the veteran was exposed to ionizing radiation and subsequently developed a radiogenic disease that manifested during the specified period, the claim should be forwarded to the Under Secretary for Benefits for consideration of the claim. The Under Secretary for Benefits, after a consideration of the factors of the case, may then request an advisory medical opinion from the Under Secretary for Health. The duty to obtain an advisory opinion under 38 C.F.R. § 3.311 not only applies to radiogenic diseases listed in 38 C.F.R. § 3.311(b)(2), but also to any other disorder when a claimant cites or submits competent scientific or medical evidence that the claimed disease "may be induced by ionizing radiation" under 38 C.F.R. § 3.311(b)(4). See 67 Fed. Reg. 6,870 (Feb. 14, 2002). 4. Entitlement to service connection for diabetes mellitus. As discussed above, the Veteran's claim for service connection for diabetes mellitus has been reopened based upon the receipt of new and material evidence. As such, the Board will consider the claim on the merits. In the February 2017 statement of the case, the agency of original jurisdiction reopened the claim for service connection for diabetes mellitus. Thus, the Board may also consider the claim on the merits. The Veteran claims that his diabetes mellitus is the result of his active service, to include as due to exposure to radiation while stationed in Pirmasens, Germany, from working inside a facility that contained generators that were leaking radiation. However, following a review of the evidence of record, and as discussed further below, the Board finds that the preponderance of the evidence weighs against the Veteran's claim. The reasons for this decision follow. As to the first element of a service-connection claim, a current disability, the Board notes that post-service VA treatment records document a diagnosis of diabetes mellitus during the pendency of the claim. As such, the first element of the Veteran's service-connection claim is met. Military personnel records reflect that the Veteran had a period of ACDUTRA in Pirmasens, Germany in June 1987; however, he is not shown by the probative evidence of record to otherwise be a "radiation-exposed Veteran" as defined by 38 C.F.R. § 3.309(d)(3). The Board notes that diabetes mellitus is not a radiogenic disease that falls under 38 C.F.R. § 3.311(b)(2)(i)-(xxiv). Furthermore, the only evidence proffered by the Veteran that his diabetes "may be induced by ionizing radiation" is his testimony at the October 2020 Board hearing and the related July 2020 VA consultation, which documents a VA physician's statement that "there may have been exposure history" from when the Veteran was based in Germany and nuclear weapons were housed and worked on in those areas where he was present, and that it was "[m]ore likely than not, the [Veteran's] diabetes, which he does not have any in his family, may have been caused by any exposures that he may have received in the military with exposures to the nuclear weapons including Nike Hercules missile systems that are in Europe." However, the Board finds that the July 2020 VA physician's statement lacks probative value, as it is based on the Veteran's lay report and is speculative in nature. As such, there is insufficient evidence to show that the Veteran's diagnosed diabetes mellitus is a radiogenic disease described by 38 C.F.R. § 3.311(b)(4) and the provisions of 38 C.F.R. § 3.311 do not apply in this case. Thus, a presumption of ionizing radiation exposure is not warranted. The Board has also considered whether service connection is warranted on a direct basis. Initially, the Board notes that VA memoranda from December 2009 and October 2010 document VA's formal findings that the Veteran's service treatment records are unavailable. In cases where service treatment records are unavailable, the Board has a heightened obligation to explain its findings and conclusions and to carefully consider the benefit-of-the-doubt rule where applicable. The unavailability of records, however, does not lower the legal standard for substantiating a claim, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. Additionally, the Board notes that some service treatment records are available for review within the claims file, as they were filed in combination with service personnel records. Notably, the available service treatment records do not document complaints, treatment, or diagnosis of diabetes mellitus or direct exposure to ionizing radiation during active service. The Board acknowledges the Veteran's assertion that he was exposed to radiation while stationed in Pirmasens, Germany, from working inside a facility that contained generators that were leaking radiation. However, apart from his contentions, and a single service personnel record documenting a period of ACDUTRA in June 1987, the claims file does not otherwise contain probative evidence that the Veteran was directly exposed to any radiation. The Veteran is competent to describe his duties while stationed in Germany; however, the conclusion that he was exposed to radioactive materials is speculative, with no objective or credible evidence supporting such statements. As such, the Board is not required to accept the Veteran's uncorroborated account, and the Board finds that the preponderance of the evidence is against a finding that the Veteran was exposed to radiation during active service. Additionally, as service treatment records do not document complaints, treatment, or diagnosis of diabetes mellitus, the Board finds that the Veteran's current diabetes mellitus did not have its onset during active service. As such, service connection is not warranted on a direct basis. Similarly, while post-service VA treatment records document a current diagnosis of diabetes mellitus during the pendency of the Veteran's claim, there is no probative evidence that diabetes mellitus first manifested during active service or within one year of service discharge. VA treatment records show that in March 2015, the Veteran relayed to a medical professional that "he was recently diagnosed as a diabetic." This is consistent with the VA treatment records, which go back as far as February 1999 without evidence of a diagnosis of diabetes prior to 2015. Thus, diabetes was first documented well over one year following service discharge. As such, service connection for diabetes mellitus is also not warranted on a presumptive basis. The Board is mindful that the Veteran has not been afforded a VA examination or medical opinion in connection with the reopened claim for service connection for diabetes mellitus. However, the Board finds that the facts of this case do not establish entitlement to a VA examination and/or medical opinion regarding this claim. VA must provide a medical examination and/or medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, while the Board acknowledges that the July 2020 VA physician's opinion is an indication that the Veteran's diabetes mellitus may be associated with his active service, the preponderance of the evidence is against a finding that diabetes mellitus occurred in service or that such condition manifested during an applicable presumptive period. For a VA examination and/or medical opinion to be warranted, all the McLendon criteria have to be met, and here, the criterion of an in-service event, injury, or disease which occurred in service is not met. Therefore, the Board finds that entitlement to a VA examination and/or medical opinion is not warranted for the Veteran's claim for service connection for diabetes mellitus. In conclusion, for all the reasons described above, the Board finds that the preponderance of evidence weighs against the Veteran's claim for service connection for diabetes mellitus. As such, there is no reasonable doubt to be resolved, and the claim is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Chad Johnson, 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.