Citation Nr: 21065275 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 17-17 288A DATE: October 25, 2021 ORDER Entitlement to service connection for diabetes mellitus is denied. The application to reopen the claim for service connection for bilateral lower extremity neuropathy is denied. FINDINGS OF FACT 1. The Veteran did not have diabetes mellitus. 2. In a March 2014 rating decision, the Agency of Original Jurisdiction denied entitlement to service connection for bilateral lower extremity peripheral neuropathy with foot ulcers. 3. Evidence received since the March 2014 rating decision does relate to an unestablished fact necessary to substantiate the claim for bilateral lower extremity peripheral neuropathy with foot ulcers. CONCLUSIONS OF LAW 1. Diabetes mellitus was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The March 2014 rating decision denying service connection for bilateral lower extremity peripheral neuropathy with foot ulcers. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 3. New and material evidence has not been received with respect to the claim of service connection for bilateral lower extremity peripheral neuropathy with foot ulcers, and the claim is not 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 May 1966 to April 1970. He had service in the Republic of Vietnam. This appeal stems from a January 2016 rating decision that denied service connection for diabetes mellitus and denied reopening the claim for service connection for lower extremity peripheral neuropathy. The Veteran attempted to opt these matters into VA's Rapid Appeals Modernization Program (RAMP) in July 2018. Unfortunately, the Veteran died in September 2018 and the Appellant was thereafter substituted for the purposes of adjudicating these claims. We note that the Appellant claims as the Veteran's surviving spouse. Under the RAMP system, only qualifying veterans were able to participate in the program and substitute appellants do not qualify for RAMP. As such, these claims remain in the legacy review system and will be adjudicated accordingly. In February 2021 the Appellant testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. During the hearing, the VLJ clarified the issues on appeal, elicited relevant testimony from the Appellant, identified potential evidentiary defects, and held the file open for 90 days to allow the submission of additional evidence. These actions complied with the duties owed during a hearing set forth in 38 C.F.R. § 3.103. In April 2021 the Agency of Original Jurisdiction (AOJ) notified the Appellant that it was conducting a special review of the Veteran's claim for service connection for neuropathy pursuant to Nehmer v. U.S. Department of Veterans Affairs in order to determine the earliest date of claim per 38 C.F.R. § 3.816. The AOJ issued a rating decision in July 2021 denying service connection for bilateral lower extremity peripheral neuropathy secondary to diabetes mellitus type II. In addition, the July 2021 rating decision did not grant of the benefit sought on appeal, and the Appellant neither appealed that decision nor withdrew the instant appeal. The issue of entitlement to service connection for bilateral lower extremity neuropathy remains in appellate status before the Board and will be adjudicated under the legacy appeals system. SERVICE CONNECTION Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110. To establish a right to compensation for a present 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" the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116 (a)(3); 38 C.F.R. §§ 3.307, 3.309. Here, the Veteran served in the Republic of Vietnam and is presumed to have been exposed to herbicide agents. Service connection based on exposure to herbicide agents will be presumed for certain specified diseases, including diabetes mellitus and early-onset peripheral neuropathy, that become manifest to a compensable degree within a specified period. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309 (e). For the presumption to apply for peripheral neuropathy, the disorder must have become manifest to a degree of 10 percent or more within one year after the date of last exposure to the herbicide. See 38 C.F.R. § 3.307 (a)(6)(ii). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain enumerated chronic diseases including diabetes mellitus will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303 (b), 3.307, 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Service connection for diabetes mellitus. The Appellant contends service connection for diabetes mellitus is warranted as due to herbicide exposure during his service in Vietnam. Central to the claim is the issue of whether the Veteran had diabetes mellitus. After reviewing the evidence of record, the Board concludes the Veteran did not have diabetes mellitus, and service connection for diabetes mellitus or a related disease or injury is not warranted. Service treatment records are absent any specific complaints, treatments, or diagnoses relating to diabetes mellitus. The April 1970 separation examination shows a clinically normal evaluation of the endocrine system and the Veteran denied a history of sugar or albumin in his urine on the April 1970 report of medical history. Private treatment records relating to the Veteran's bilateral foot wounds show the Veteran was treated for neuropathic wounds of his right toes in September 2012, and that the treating physician noted the neuropathy was not diabetic. Later records dated November and December 2012 reflect neuropathic ulcers and pressure wounds. February 2013 records show the Veteran was wearing diabetic shoes to help with his foot wounds. Records dated March and April 2013 reflect a diagnosis of chronic diabetic foot ulcer wounds related to pressure. A subsequent April 2013 record show the diagnosis was neuropathic foot ulcers. These records do not appear to contain a supported diagnosis of diabetes mellitus. A VA May 2014 VA podiatry note reflects a reported past medical history of hyperglycemia and diabetes mellitus, and a diagnosis of "neuropathic (diabetic)" foot ulcerations. However, a May 2014 VA letter to the Veteran from his VA physician shows the Veteran had blood in his urine with blood sugars remaining "a little bit too high" and that recent recommendations from the American Diabetic Association (ADA) suggested that he should be started on a medication to help control blood sugars due to his A1C level of 5.8. We note that his physician did not diagnose diabetes. May 2014 infectious disease consultation notes show that the Veteran did not have diabetes and noted his last hemoglobin A1C measurement was 5.8. June 2014 podiatry notes show the Veteran was currently on metformin per ADA guidelines and that the Veteran had no prior diagnosis of diabetes and did not currently meet the criteria for a diagnosis. Nondiabetic neuropathic ulcers were noted on the Veteran's toes and feet. The same diagnostic information was noted on multiple subsequent VA podiatry treatment notes relating to relating to the Veteran's ulcers. A December 2014 VA treatment notes an erroneous diabetes diagnosis in the context of diabetic retinal and foot examinations, with a comment showing the Veteran was prediabetic. We note that these VA treatment records show multiple A1C test results. In May 2013 the A1C result was 5.9, with the highest being 6.1 in November 2013. May 2014 laboratory results show the A1C was 5.8. In June 2015 he was not taking metformin and his most recent A1C check was noted at 5.5. However, a June 2015 letter from his primary care physician states the Veteran's urine testing had improved but his blood sugar level was back in the pre-diabetic range and his doctor recommended using metformin again once per day. The Veteran reported that he had been diagnosed with diabetes at a November 2015 VA podiatry appointment, although the treating physician's assistant did not diagnose diabetes mellitus. A December 2015 medical history provided before a transmetatarsal amputation of the right foot shows a diagnosis of type II diabetes mellitus. The Veteran was provided a VA diabetes mellitus examination in January 2016. The examiner determined there was no diagnosis of diabetes mellitus and diagnosed impaired fasting glucose instead. The examiner there were no hemoglobin A1C test result that was 6.5 or higher in any available medical records, and that the Veteran was started on metformin when his A1C hit 6.1 in May 2014. The examiner explained that, despite the Veteran's history of peripheral neuropathy leading to infections and amputations, there was no evidence that he was diagnosed with diabetes, nor was there any mention of diabetes in any of the notes by his podiatrist. The examiner concluded that, at the time, the Veteran had still not met the ADA or VA criteria for a diagnosis of type II diabetes mellitus. A March 2016 diabetic retinopathy consultation notes a duration of diabetes of 1-5 years and an onset of December 2014. The most recent hemoglobin A1C results cited were 5.8 in June 2015. Borderline diabetes mellitus was noted at a March 2016 podiatry followup. May 2016 podiatry notes show that the Veteran was non-diabetic; however, May 2016 orthotics notes state the Veteran had diabetes mellitus type II. February 2017 podiatry notes reflect the Veteran was not diabetic and had Charcot arthropathy of the right foot with non-diabetic peripheral neuropathy. Subsequent podiatry notes continued to state the Veteran was not diabetic. An April 2018 laboratory report shows A1C was 5.9. May 2018 VA nephrology consultation notes the Veteran had prediabetes. The Veteran was admitted to a VA medical center in September 2018 following a fall with a right femoral hip fracture and pneumonia with ongoing dysphagia, hematemesis, and hemoptysis. X-rays of the Veteran's feet and legs note a history of chronic diabetic foot ulcers. Although some records during the Veteran's hospitalization refer to him as diabetic, others reported that he was non-diabetic. The Veteran died on September [REDACTED], 2018. The VA hospital discharge summary notes diagnoses of impaired fasting glucose and recurrent osteomyelitis of both feet. Diabetes mellitus was not diagnosed. VA obtained an addendum opinion in September 2020 to review records received since the January 2016 opinion and to determine if a diabetes mellitus diagnosis was warranted. The examiner reviewed the claims file and noted there was conflicting medical evidence. The examiner concluded that, despite contradictory information in the record, the Veteran did not qualify for a diagnosis of diabetes mellitus as neither a generally accepted diagnosis of diabetes by the Veteran's medical providers nor a strict ADA-defined diagnosis of diabetes was found in the provided records. The examiner noted that the ADA guidelines for the diagnosis of diabetes are fasting blood sugar of greater then 125, hemoglobin A1C of greater then 6.2, or specific findings on oral glucose tolerance testing, and that the VA generally adds that the diagnostic findings should be confirmed on more than one occasion. Regarding the private treatment records, the examiner noted the claims file had non-VA wound care notes from 2012 to 2014, and that the initial wound care specialist made special mention on several occasions that the Veteran's neuropathy was of a non-diabetic origin. Although the specialist did not reference how he obtained this information, the examiner presumed that it merited multiple mentions since the pressure ulcers and wounds were similar to what diabetics may experience. When a new wound care provider took over care in early 2013, she initially mentioned variously that ulcers were neuropathic or diabetic, and in one note assessed them as both in different parts of the note. By 2014, she had begun omitting any mention of diabetic etiology. Based on the clear and precise statements from the earliest provided records that neuropathy and neuropathic wounds were not diabetic in etiology despite their appearance, the examiner concluded that the provider in the earliest notes had access to medical information confirming such. Private records from St. Alphonsus Medical Group made no reference to diabetes. Regarding the VA treatment records, the examiner noted the Veteran began VA treatment in May 2013 and that neither diabetes nor blood sugar problems were initially mentioned as past medical history. After blood testing showed elevated glucose, the provider added a diagnosis of impaired fasting glucose in September 2013. The veteran developed another neuropathic ulcer in 2014 with many subsequent High-Risk Foot (HRF) notes. The examiner noted the initial HRF evaluation in May 2014 noted the absence of prior collaborating medical records and that all history was per the Veteran and spouse, and that a history of "hyperglycemia/diabetes" and "idiopathic peripheral neuropathy-suspected Agent Orange expos per pt report" was recorded with assessment of "neuropathic (diabetic) ulcerations right foot" and "idiopathic peripheral neuropathy. Suspect hyperglycemic component and/or Agent Orange exposure." The examiner noted that thereafter, most VA HRF clinic notes copy and pasted the initial evaluation with minor amendments made each visit. The examiner noted that the Veteran was evaluated by an infectious disease specialist in May 2014 who noted "he has no diabetes." At the June 2014 HRF clinic note, the wound care specialist reported "neuropathic (non-diabetic)" ulcer while also noting no prior diagnosis of diabetes and does not currently meet criteria, but still left in place much of the copy and pasted initial evaluation and assessments. The examiner noted that subsequent HRF clinic notes continued to be copy and pasted with a "mish-mash" of diabetic and non-diabetic etiologies from prior notes. December 2014 VA primary care notes showed under "clinical reminders" that the Veteran did not need diabetes preventive care screening as there had been an "erroneous diabetes diagnosis." Subsequent primary care records show "prediabetes" or impaired fasting glucose but are without diabetes diagnosis. The examiner did note a November 2015 HRF records when the wound care specialist discussed the Veteran's neuropathy in relation to an upcoming VA examination. The specialist reported that she reviewed all available information and noted the Veteran developed peripheral neuropathy in the absence of an identifiable cause and was subsequently diagnosed with diabetes. The examiner determined it is unclear what the basis for her determination that he was diagnosed with diabetes was. The September 2018 discharge summary diagnosed impaired fasting glucose with no diabetes diagnosis listed, and the examiner noted that September 2018 blood glucoses during the Veteran's ICU hospitalization were mildly elevated above 126. Regarding the blood glucose testing and A1C test results, the examiner acknowledged that VA lab reports did not label or confirm whether any testing they perform was done while fasting. Hence, the documented blood sugars greater than 125 are not confirmed as fasting in VA lab reports. The examiner explained that routine lab testing while fasting is a somewhat controversial area in medical practice as the major reason for performing labs while fasting is it was initially believed that the lipoprotein profile was most accurate when tested fasting, but later general medical thinking is that non-fasting profiles are equally representative of the status and many providers ceased requesting this status from patients. Fasting status may sometimes be inferred by coincident lipoprotein testing on the same blood draw as the glucose but there was no associated lipoprotein profile found reported with either elevated serum glucose. The examiner then concluded that neither a generally accepted diagnosis of diabetes by the Veteran's medical providers nor a strict ADA-defined diagnosis of diabetes was found in the provided records. For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. Id. at 304. Here, we find the September 2020 VA opinion to be highly probative evidence on the issue of whether the Veteran had diabetes mellitus. The examiner rendered the negative opinion after reviewing the claims file and addressed the conflicting evidence which sometimes showed a notation of diabetes and other times did not. The examiner provided a detailed rationale explaining these discrepancies, explaining that A1C and blood glucose testing results did not formally show that the Veteran had diabetes mellitus and that the recorded histories of diabetes mellitus appeared to be either in error or from the Veteran's own reported history that was unsupported by the diagnostic tests. Pertinently, the examiner supported his conclusion that the Veteran did not have diabetes mellitus by citing the general clinical requirements for diagnosing the disease and explained why the documented A1C results and the blood glucose measurements could not be relied upon to accurately diagnose diabetes mellitus. The September 2020 opinion is well supported by the record. The medical evidence does contain contradictory statements regarding whether the Veteran had diabetes mellitus. As noted above, private and VA treatment records both occasionally suggested the Veteran had diabetic ulcers and diabetes mellitus. However, these notations do not appear to have been based on actual test results. As explained by the examiner, the Veteran was most accurately diagnosed as prediabetic and with impaired glucose but did not have a formal diagnosis of diabetes mellitus. The Board has considered the Appellant's assertions. In May 2020 the Appellant submitted a letter arguing that the examiner failed to address all of the A1C and blood serum glucose readings contained in the VA treatment records, that the A1C readings contained in the VA treatment records are incorrect, that the examiner grossly misrepresented the Veteran's blood glucose readings during his final hospitalization by determining they were mildly above 126, and that the Veteran's low sodium levels and the Veteran's water consumption was an indicator of diabetes. The September 2020 examiner did not address each A1C and blood glucose test result in the VA treatment records. Regarding the A1C results, we note that no test results in the VA treatment records were 6.2 or above, as required by ADA guidelines for a diagnosis of diabetes. Regarding the blood glucose results, there is no indication that any of the results are fasting blood sugar readings. Following the examiner's logic, the glucose readings would therefore be insufficient to diagnose diabetes mellitus. As such, the Board finds the examiner's failure to address each of the A1C and blood glucose results individually does not impact the probative weight of the September 2020 opinion. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a lay person is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, the Appellant and the Veteran are competent to report that doctors told them the Veteran had diabetes mellitus. However, as explained above and by the September 2020 VA examiner, the passing diagnoses contained in treatment records are not supported by the objective medical evidence available, to include blood glucose and hemoglobin A1C test results. Some of the diagnoses were rendered based on the Veteran's reported history that he had diabetes mellitus when he had not been diagnosed. As such, we do find assertions that the Veteran was told that he had diabetes mellitus to be credible, but the underlying basis for such diagnosis was not supported.. There is little convincing medical evidence establishing the Veteran had a valid diagnosis of diabetes mellitus. There are no opinions of record contradicting the September 2020 VA opinion. While the Appellant is competent to testify as to what she observes and what she was told, her recollection is of no greater probative value than the medical evidence upon which it was based. Similarly, to the extent the Appellant contends that the A1C and glucose test results are incorrect, that the Veteran's sodium level and water intake are diagnostic for diabetes mellitus, or that the September 2020 VA examiner mischaracterized the Veteran's glucose results taken during his final hospitalization, she is not competent to make such a determination. We also note that, to the extent the Appellant argues the Veteran's neuropathic ulcers did not represent a natural progression, such is ultimately not relevant to the question of whether the Veteran had diabetes mellitus and the Appellant is not competent to provide such an opinion. The Appellant has also contended that the Veteran's prescription for metformin "masked" diabetes. However, the Appellant is not competent to address such an issue and has not submitted competent medical evidence in support of the contention. The Appellant and her representative have requested the Board obtain an independent medical opinion to ascertain whether the Veteran had diabetes. An independent medical opinion is warranted when, in the judgment of the Secretary, expert medical opinion, in addition to that available within the Department, is warranted by the medical complexity or controversy involved in a case being considered by the Department, the Secretary may secure an advisory medical opinion from one or more independent medical experts who are not employees of the Department. See 38 U.S.C. § 5109 (a); 38 C.F.R. § 20.906 (d). The Appellant generally argues that an independent opinion is necessary to resolve conflicting information about whether the Veteran had diabetes. The necessity of obtaining an independent medical expert opinion is left to the discretion of the Board. See Bielby v. Brown, 7 Vet. App. 260, 269 (1994). Here, the Board concludes that an independent medical opinion is not necessary. The preponderance of the evidence available shows the Veteran did not have diabetes. The record contains medical opinions specifically addressing the issue of whether the Veteran had diabetes. In particular, the September 2020 VA medical opinion is competent and probative evidence that the Veteran did not have diabetes. The examiner reviewed the entire claims file and concluded that, despite contradictory information in the record, the Veteran did not qualify for a diagnosis of diabetes mellitus as neither a generally accepted diagnosis of diabetes by medical providers nor a strict ADA-defined diagnosis of diabetes was found in the provided records. In May 2021 the Appellant submitted arguments alleging the September 2020 opinion and the Veteran's medical records themselves contain incorrect or misrepresented information regarding blood glucose and A1C readings. However, we again note that the Appellant is not competent to offer such an opinion and has presented no competent medical evidence suggesting the September 2020 opinion is incorrect, that the Veteran's medical records are incorrect, or establishing the Veteran had diabetes. We also note the Appellant has not specifically challenged the qualifications of the September 2020 examiner to render the opinion provided. Furthermore, the Appellant has been accorded ample opportunity to present competent medical evidence that the Veteran had diabetes and has not done so. See 38 U.S.C. § 5107 (a) (it is the claimant's responsibility to support a claim for VA benefits). Given the foregoing, we conclude no additional, independent medical expert opinion is warranted by the medical complexity or controversy in this case. In sum, the preponderance of the evidence establishes the Veteran did not have diabetes. In the absence of a disability, compensation may not be awarded. In the absence of evidence of a current disability, there can be no grant of service connection under the law. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). While diabetes mellitus is a chronic disease, the Veteran did not have diabetes mellitus. Service connection for prediabetes, hyperglycemia, or impaired glucose is not warranted on a presumptive basis, as these are not considered chronic diseases under the law. The laws and regulations relating to chronic diseases are inapplicable and would not warrant a grant in this matter. Ultimately, there is no evidence supporting a connection between the Veteran's conceded herbicide exposure and prediabetes, hyperglycemia, impaired fasting glucose, or any other relevant manifestation. We again reiterate that the most probative evidence shows the Veteran did not have diabetes mellitus. There is no competent medical evidence of prediabetes, glucose impairment, or any other relevant disease or injury during service or that any of the Veteran's disorders were related to service, to include his conceded exposure to herbicides. Under the circumstances, the regulatory requirements to establish service connection for type II diabetes mellitus have not been met under any theory of entitlement and service connection must be denied. Whether addressed as direct service connection, presumptive service connection or as an herbicide related disease, the result is the same, as the most probative evidence establishes that the Veteran did not have diabetes. The preponderance of the evidence is against the claim to service connection, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Application to reopen the claim for service connection for bilateral lower extremity peripheral neuropathy with foot ulcers. The Appellant seeks service connection for the Veteran's bilateral lower extremity peripheral neuropathy with foot ulcers. We note that the Veteran also had multiple foot surgeries resulting in the amputation of portions of both feet. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim New evidence is defined as 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. See 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). 38 C.F.R. § 3.156 (a) creates a low threshold. Shade v. Shinseki, 24 Vet. App. 110 (2010). The regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Id. Here, in a March 2014 rating decision, the Agency of Original Jurisdiction (AOJ) denied entitlement to service connection for bilateral lower extremity peripheral neuropathy with foot ulcers. The AOJ noted that the Veteran's post-service treatment records did show a diagnosis of peripheral neuropathy but concluded that the neuropathy did not first become manifest to a compensable degree within one year after last exposure to herbicides and that there was no evidence of the condition during the Veteran's service. The Veteran did not appeal this rating decision, and it became final. At the time of the March 2014 rating decision, the record in pertinent part included service treatment records, personnel records, statements from the Veteran that his neuropathy was due to his Agent Orange exposure, and post-service private treatment records. The Veteran's service treatment records are absent any complaints, treatments, or diagnoses relating to peripheral neuropathy. Service personnel records showed he had service in Vietnam. The post-service private treatment records reflected that the Veteran had non-diabetic bilateral lower extremity peripheral neuropathy and was being treated for bilateral foot ulcers and wounds. March and April 2013 records assessed diabetic foot ulcers complicated by neuropathy. In August 2015 VA received the Veteran's application to reopen the claim for service connection bilateral lower extremity peripheral neuropathy, claimed secondary to type II diabetes mellitus. In a January 2016 rating decision, the AOJ determined that new and material evidence had not been submitted and declined to reopen the claim. We note that the AOJ issued a Supplemental Statement of the Case in October 2020 considering new VA treatment records obtained following the Veteran's death and denied service connection for bilateral lower extremity peripheral neuropathy, to include as secondary to diabetes mellitus. After reviewing the evidence received since the March 2014 rating decision, we conclude that new and material evidence has not been received relating to the claim for service connection for bilateral lower extremity peripheral neuropathy with foot ulcers, and reopening the claim is not warranted. Evidence that was not previously submitted to agency decisionmakers was received since the March 2014 rating decision. This evidence consists of VA treatment records, a January 2016 VA examination and opinion, a September 2020 VA opinion, and the Appellant's lay statements including her testimony at the February 2021 Board hearing. The January 2016 VA examination was for diabetes mellitus, and the examiner concluded the Veteran did not have diabetes mellitus. Regarding neuropathy the examiner concluded that, despite the Veteran's history of peripheral neuropathy leading to infections and amputations, there was no evidence that he was ever diagnosed with diabetes. Thus, while the Veteran's peripheral neuropathy was mimicking a diabetic neuropathy, there was no evidence that he had diabetes. The September 2020 VA opinion primarily addresses whether the Veteran had diabetes mellitus. As explained above, the examiner concluded the Veteran did not. Regarding neuropathy, the examiner noted private treatment records initially indicated the neuropathy was non-diabetic, and that while one provider had mentioned the ulcers were neuropathic or diabetic, by 2014 diabetic etiology was not mentioned. VA treatment records indicated the Veteran had reported his neuropathy was attributable to Agent Orange exposure, and the examiner noted that the rationale for this etiology was unclear. The examiner acknowledged VA treatment records contained several mentions by providers of attributing neuropathy to Agent Orange exposure and noted that whether this was simply recording the Veteran's perception of this etiology or if this had been assessed as such after a comprehensive neurology evaluation at some point was unclear. The examiner concluded that neuropathy attributable to Agent Orange is generally accepted as being a temporary neuropathy that resolved on own shortly after exposure, or less commonly a neuropathy which presented during or shortly after exposure and then remained stable without resolution or progression. The examiner concluded that neuropathy with solid sensory loss as described in the medical record dating to 1970 was implausible as it would have resulted in neuropathic injuries, complications, and amputations many decades sooner than as occurred in the available medical records. The examiner explained the neuropathy was progressive many decades after Agent Orange exposure and less likely than not due to or aggravated by environmental toxins in Vietnam. While the 2016 and 2020 VA examinations and opinions are new, the evidence is not material as it does not relate to an unestablished fact necessary to substantiate the claim. The presence of the Veteran's puerperal neuropathy was established by the March 2014 rating decision. The relevant issues and unestablished facts were whether the Veteran's neuropathy was incurred in service, manifested within a year of herbicide exposure or within a year of separation, was related to diabetes, or was related directly to herbicide exposure. The examination and opinion are negative and do not substantiate any unestablished fact necessary for the claim. Negative evidence cannot serve as new and material evidence for purposes of the reopening of a claim, as by definition it does not raise a reasonable possibility of substantiating the claim. The VA treatment records are from 2013 through 2018 and show the Veteran had multiple portions of his feet amputated, including all ten toes, between approximately 2008 and his death in 2018. Regarding neuropathy, the Veteran was diagnosed with idiopathic peripheral sensory neuropathy. The records do make multiple references that the neuropathy was thought by the Veteran to be associated with Agent Orange. The VA treatment records are new evidence, as no VA records were associated with the file at the time of the March 2014 rating decision. However, the records do not constitute material evidence. The September 2020 examiner indicated it was unclear if the VA notes attributing neuropathy to Agent Orange exposure were records of the Veteran's perception of this etiology or if the etiology had been assessed by the treating medical professionals after comprehensive neurology evaluation. However, careful review of these VA treatment records reveals these notations were made after the Veteran's own lay reports that his neuropathy was due to Agent Orange exposure. For example, May 2014 VA podiatry notes show a diagnosis of idiopathic peripheral neuropathy suspected agent orange exposure per patient report. Future VA records include the notation "suspect agent orange exposure??" and "thought to be associated with agent orange exposure" when referencing the idiopathic peripheral neuropathy. The Board finds this does not constitute new or material evidence regarding the etiology of the Veteran's neuropathy. Rather, these notations simply reiterate the Veteran's lay statements and are cumulative of the Veteran's previous assertion in the August 2013 claim that his neuropathy was related to Agent Orange exposure in Vietnam. The Board finds the VA treatment records notations that the Veteran's neuropathy may be related to herbicide exposure were recitals of the Veteran's own non-competent reports that Agent Orange caused his neuropathy and are cumulative and redundant of his previous assertions. These notations are not competent evidence that the neuropathy was directly related to herbicide exposure. The VA records do not establish the Veteran had diabetes, and the neuropathy was not diabetic neuropathy. Additionally, the VA records do not suggest the Veteran's neuropathy and the associated complications were present during his service or manifested within a year of his exposure to herbicides or within a year of separation from service. Rather, the evidence suggests the Veteran's foot ulcers began in approximately 2004 and that neuropathy was first identified in 2011. Medical and lay evidence received after the March 2014 decision shows the Veteran had multiple amputation procedures on both feet due to infections and ulcer wounds. However, the initial August 2013 claim was for service connection for bilateral lower extremity neuropathy and "foot damage," which would include amputations. Additionally, the records show the Veteran did have amputation surgeries prior to the March 2014 rating decision due to ulcers. The Board finds the fact that the Veteran had portions of his feet amputated due to neuropathy, ulcers, and infections does not constitute a new claim for a separate and distinctly diagnosed disease or injury, and that the claim to reopen is based on the same factual basis as the initial claim received in August 2013. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Velez v. Shinseki, 23 Vet. App. 199 (2009). Evidence that the Veteran had portions of his feet amputated as far back as 2008 is a more accurate description of the same health issues the Veteran claimed service connection for in the initial claim received in August 2013. All the relevant symptomatology was present at the time of the March 2014 rating decision, and the initial claim was for bilateral lower extremity neuropathy and "foot damage." Significantly, the presence of a disability was not at issue in the March 2014 rating decision. To the extent the evidence submitted after the March 2014 rating decision suggests the Veteran's foot ulcers were diabetic and related to diabetic peripheral neuropathy, we find that such evidence is neither new nor material in this case. Private treatment records available at the time of the March 2014 rating decision did sometimes note diabetic foot wounds complicated by neuropathy. However, these same records also stated that the Veteran's neuropathy was not diabetic. Records received since the March 2014 rating decision suggesting the same are merely redundant of evidence explicitly considered by the AOJ in the March 2014 rating decision. In addition, such evidence is not material because does not relate to an unestablished fact necessary to substantiate the claim. The Veteran did not have diabetes mellitus. Further, nearly all evidence received since the March 2014 rating decision confirms that the Veteran did not have diabetic neuropathy. There are multiple lay statements, including the Appellant's testimony at the February 2021 Board hearing, suggesting the Veteran's neuropathy was related to his herbicide exposure in Vietnam. Ultimately, these lay statements are cumulative and redundant of the Veteran's initial claim received in August 2013, wherein he asserted neuropathy and the resulting foot injuries were due to Agent Orange. While credibility of evidence is presumed in determining whether evidence is new and material, competency is not presumed. Neither the Veteran nor the Appellant are competent to determine the Veteran's neuropathy was related to herbicide exposure. In sum, the evidence received since the March 2014 rating decision continues to show the Veteran had bilateral lower extremity neuropathy and that he did not have diabetes. While the Veteran reported that the neuropathy was due to herbicide exposure during his service in Vietnam, such statements are cumulative of information received at the time of the prior claim filed in August 2013. The references made by VA medical providers that his neuropathy was believed due to Agent Orange were reiterating the Veteran's own lay statements. The low threshold created by 38 C.F.R. § 3.156 (a) has not been met because the critical facts are unchanged. The added submitted evidence does not relate to an unestablished fact necessary to substantiate the claim. There remains no competent evidence of a nexus between the Veteran's neuropathy and his service. The application to reopen the claim is denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morse 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.