Citation Nr: 21074506 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-35 547 DATE: December 15, 2021 ORDER New and material evidence having been received, the claim to reopen entitlement to service connection for diabetes mellitus type II (diabetes) is granted. Entitlement to service connection for diabetes mellitus type II (diabetes) is denied. FINDINGS OF FACT 1. The claim for service connection for diabetes was previously denied in a September 2012 rating decision. The Veteran did not appeal that decision and it is therefore final. 2. Evidence added to the record since the September 2012 denial is not cumulative or redundant of the evidence of record at the time of such decision and raises a reasonable possibility of substantiating the Veteran's claim for service connection for diabetes. 3. The probative and competent evidence of record does not show that the Veteran's diabetes is etiologically related to service, to include exposure to contaminated water at Camp Pendleton. CONCLUSIONS OF LAW 1. The September 2012 rating decision that denied service connection for diabetes is final. 38 U.S.C. § 7104 (b) (2012); 38 C.F.R. § 20.1103 (2020). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for diabetes. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2020). 3. The criteria for service connection for diabetes have not been met. 38 U.S.C. § 1155; 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1988 to June 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case has been before the Board three times before. In March 2019 this issue was remanded to the agency of original jurisdiction (AOJ) for additional development, specifically to include obtaining updated medical records. It was then sent back to the Board in November 2020 and was again remanded for additional development to include an additional VA examination. Most recently, in September 2021 this case was returned to the Board and was remanded to obtain updated VA treatment records. These records have since been received. This case has now been returned to the Board for further appellate action. 1. New and material evidence - diabetes The Veteran seeks to reopen his claim for service connection for diabetes. Thus, the Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined is irrelevant. Id. The claim for entitlement to service connection for diabetes may be reopened if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). The Veteran filed this application to reopen his claim in July 2016. New evidence means existing evidence that, by itself or when considered with the 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) (2020). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The evidence before the VA at the time of the prior final decision consisted of the Veteran's service treatment records, VA treatment records, VA examinations, and lay statement. The RO denied the claim, finding that there was no nexus showing the Veteran's diabetes was related to service. The RO also noted that the service treatment records did not contain complaints regarding this condition. Following the Veteran's application to reopen the claim, VA and private treatment records, VA examinations, journals and medical treatises, and lay statements were obtained. The Board notes that service treatment records appear to be added to the record after the September 2012 rating decision. However, these records were already reviewed at the time of the September 2012 rating decision. Therefore, the Board finds that 38 C.F.R. § 3.156 (c) does not apply. The Veteran has argued that his diabetes was related to his exposure to contaminated water at Camp Pendleton. The Veteran also submitted journals and medical treatises suggesting a correlation between contaminated water and diabetes. Based on this, a VA opinion was obtained in January 2021, which determined that the Veteran's diabetes was not related to service. The Board finds that the journals, medical treatises, and VA opinion, as well as the raised theories of secondary service connection are new, in that it was not previously considered. The Board further finds that this evidence and raised theory of service connection are material to the Veteran's claim because it addresses a missing factor in service connection. Thus, for these reasons, the claim for service connection for diabetes is reopened. 2. Entitlement to service connection for diabetes mellitus type II (diabetes) Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1155; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. The Veteran asserts that his diabetes is related to service, to include his exposure to contaminated water at Camp Pendleton. Service treatment records are silent for complaints, treatment, or diagnosis of diabetes. VA treatment records from 2009 show that the Veteran has a diagnosis of diabetes. In a September 2011 VA treatment record, the Veteran said that he lost both of his parents to diabetes. The Veteran submitted a journal article in 2016 discussing finding Silvex in the water at Camp Pendleton. In a July 2016 statement, the Veteran said that he did not have a history of diabetes in his family. He also stated that his diabetes may have been caused by contaminated water. In a November 2016 statement, the Veteran said that he drank the ground water at Camp Pendleton. He also said that he used the water to bathe, clean clothes, wash dishes, and cook. He said he did not have a family history of diabetes. The Veteran submitted additional articles in 2016 and 2017 regarding issues of contaminated ground water, exposure, and diabetes. The Board notes that the Veteran was provided a VA examination in June 2017 for his diabetes. However, the Board finds the associated VA opinion to be inadequate as it was overly broad and did not fully consider the journals and medical treatises provided by the Veteran. Therefore, the Board will not consider this VA opinion. In a January 2021 VA opinion, the examiner determined that there was no nexus between the Veteran's diabetes and service. The examiner stated that all relevant evidence was reviewed. The Veteran had a diagnosis of diabetes and the examiner stated that whether or not the Veteran's father had diabetes carried little weight in rendering an opinion on the Veteran's claim. A review of the service treatment records revealed no injuries, exposures, treatments, or other events in service that plausibly caused his diabetes. The examiner referred to the June 2017 VA examiner and agreed that the opinion was overly broad. The examiner said that there was in fact medical evidence for the causal relationship, but that evidence was not conclusive. Since the evidence was no more than suggestive, an assertion of causality could be little more than speculative; a blanket rejection of causality could likewise be made with only a modest degree of confidence. The examiner discussed the articles submitted, finding that they mostly were either not peer reviewed or contained advice to veterans and their survivors; only two submitted by the Veteran's representative were peer reviewed. The examiner stated that the Veteran had submitted evidence that could not be summarily dismissed. In time, with the accumulation of additional evidence, the causal relationship might be established and generally accepted. However, at this time the relationship was neither established nor generally accepted. The question posed was not whether it was possible that the Veteran's diabetes occurred in or was otherwise related to service, to include exposure to contaminated water as this would have an affirmative answer. Rather, the question was whether causality was at least 50 percent likely; the answer to this was negative in the absence of evidence supporting such a high likelihood. Additional post-service treatment records are silent for any nexus between the Veteran's diabetes and service to include his exposure to contaminated water. Overall, the Board finds that the Veteran's diabetes is not etiologically related to service, to include his exposure to contaminated water. The Board acknowledges the Veteran's lay statements; however, the Board notes that the Veteran does not have the medical expertise to determine the etiology of his diabetes. Additionally, the Board notes that the Veteran has provided conflicting statements. Specifically, the record shows that he reported a family history of diabetes, but then later he denies any family history. Although the January 2021 VA examiner did not find a family history to be relevant to the etiology of the Veteran's diabetes, the Veteran's conflicting statements do speak to the fact of his credibility. Thus, the Board finds the January 2021 VA examiner's opinion most probative and there are no medical opinions to the contrary. The Board finds that a preponderance of the evidence is against the Veteran's claim. Service connection for diabetes is not warranted. Saudiee Brown Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Andrew Ledman II 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.