Citation Nr: 21007281 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 19-32 659A DATE: February 9, 2021 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for diabetes mellitus is reopened. To this extent only, the claim is granted. REMANDED Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for a renal condition, including diabetic nephropathy, is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. An April 2003 rating decision denied service connection for diabetes mellitus. The Veteran filed a Notice of Disagreement in July 2003 and a Statement of the Case was issued in November 2003. The Veteran did not appeal. 2. Evidence received since the April 2003 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for diabetes mellitus and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The April 2003 rating decision that denied service connection for diabetes mellitus is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for diabetes mellitus. 38 U.S.C. § 5108 (2017); 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1967 to June 1968 and June 1968 to July 1970. Evidence of record also reflects that the Veteran served in the Reserve. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). 1. New and Material Evidence – Diabetes Mellitus Under 38 U.S.C. § 5108 (2017), VA may reopen a previously and finally disallowed claim when “new and material” evidence is presented or secured with respect to that claim. This requires a review of all evidence submitted by or on behalf of a claimant since the last final denial – regardless of whether the denial was on the merits or on procedural grounds – to determine whether a claim may be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). VA regulation defines “new and material evidence” as follows: “new evidence” means evidence not previously submitted to agency decisionmakers, and “material evidence” means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). To warrant reopening, the new evidence must neither be 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. Id.; see Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (holding that there is a “low threshold” for reopening). To establish whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue, or, if it is a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 215, 200 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Although the RO reopened the claim in a June 2019 Statement of the Case, the Board must independently decide whether new and material evidence has been submitted that warrants a reopening of the Veteran’s claim regardless of the RO’s decision. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The service connection claim for diabetes mellitus was originally denied in an April 2003 rating decision because the evidence failed to show the Veteran had the requisite service in the Republic of Vietnam to warrant presumptive service connection, and the evidence failed to show the disorder was incurred in or due to service. In July 2003, the Veteran filed a timely Notice of Disagreement. The RO then issued a SOC in November 2003. The Veteran did not appeal further. Therefore, the April 2003 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran petitioned to reopen his claim in March 2016 and June 2016. The relevant evidence submitted since the April 2003 rating decision consists of various lay statements by the Veteran (to include statements regarding herbicide exposure state-side), his spouse, and a colleague reflecting the onset of his symptomatology and in-service event leading to his diagnosis, articles regarding plant-based chemical and herbicide agent exposure, and VA medical records indicating the current nature of his diabetes mellitus. This evidence, evidence not previously submitted to decisionmakers and relating to unestablished facts necessary to support the claim (i.e., whether the Veteran was exposed to chemicals in service), raises a reasonable possibility of substantiating the claim and the Board finds that it constitutes new and material evidence. See 38 C.F.R. § 3.156(a). Accordingly, as the Board finds that new and material evidence has been submitted, the claim for service connection for a head injury is reopened. Id. REASONS FOR REMAND 1. Diabetes Mellitus 2. Renal Condition 3. Hypertension As a preliminary matter, the Board acknowledges that the record reflects that Veteran served in the Reserve. See June 1968 DD Form 214 (noting that the Veteran was being ordered to active duty as a Reserve Officer); July 1970 Department of the Army Special Orders (ordering that the Veteran be relieved from active duty and assigned to the Reserve). Although there are service treatment records and service personnel records associated with the file revealing the Veteran’s education, performance, assignments, points, and awards, the precise dates of all periods of Active Duty for Training (ACDUTRA) and Inactive Duty for Training (INACDUTRA) are not available. On remand, the RO should confirm the Veteran’s periods of ACDUTRA and INACDUTRA. The Board also notes that the record is incomplete. The records reflect that the Veteran has seen various private providers on different dates for treatment of his conditions. However, the Veteran’s complete private medical records are not affiliated with the claims file. Thus, on remand, the Board requests that the Veteran’s complete private medical records be obtained and associated with the claims file. Furthermore, the Board notes that the Veteran was examined in December 2016 to determine the natures and etiologies of his diabetes mellitus, renal condition(s), and hypertension. Although the examiner rendered positive opinions, the examiner’s opinions are inadequate. The examiner noted the Veteran’s in-service exposure to dioxin and other chemicals which “possibly caused” the Veteran’s diabetes mellitus, without identifying the evidence indicating that the Veteran was actually exposed to dioxin or detailing the “other chemicals” to which he was exposed during service. When addressing the Veteran’s hypertension, the examiner opined that hypertension was caused by diabetes mellitus; however, the examiner noted that the onset of the Veteran’s hypertension was 1976 but that the onset of his diabetes mellitus was 1985. This internal inconsistency calls into question the adequacy of the examiner’s review of the Veteran’s claims file. Finally, the Board acknowledges receipt of certain opinions by private providers indicating that the Veteran’s hypertension is the result of his diabetes mellitus and that his diabetes mellitus is the result of herbicide agent exposure. See May 2002 VA Form 21-4138; December 2012 Letter from Dr. C.W.W. However, these opinions provided are not accompanied by rationales explaining their conclusions. Hence, the Board finds these private opinions are inadequate to ascertain the etiologies of the Veteran’s hypertension and diabetes mellitus. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (medical opinions must contain clear conclusions with supporting data and a reasoned explanation connecting the two). As such, the Board finds that addendum opinions should be obtained to determine the natures and etiologies of the Veteran’s diabetes mellitus, renal condition(s), and hypertension. The matters are REMANDED for the following action: 1. The RO should determine the specific dates of when the Veteran served on ACDUTRA and/or INACDUTRA. In this regard a report detailing the Veteran’s award of reserve retirement points will NOT represent compliance with this instruction. Rather, each and every date of active duty, ACDUTRA, and INACDUTRA must be verified. Then, issue a memorandum for inclusion in the claims file detailing each period of verified active military service, whether on active duty, ACDUTRA, or INACDUTRA. All medical treatment records associated with the Veteran’s Reserve service should also be obtained and associated with the claims file. 2. The RO should request the Veteran to identify any and all outstanding and/or updated VA and/or private medical treatment records related to his diabetes mellitus, renal condition(s) and hypertension. Appropriate efforts must be made to obtain these records if he has adequately identified them and authorized their release (with respect to any private medical records). He should also be invited to submit these records himself. All actions to obtain the requested records must be fully documented in the claims file. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. 3. Then, forward the claims file to an appropriate clinician to ascertain the nature and etiology of the Veteran’s diabetes mellitus. The entire claims file, including a copy of this remand, must be made available to the clinician, who must note its review. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. (a) The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diabetes mellitus manifested during, or is the result of, his active duty service and/or ACDUTRA, including chemical exposures as well as toxic exposures due to his military occupational specialty, such as commercial herbicides. In formulating his or her opinions, the clinician should consider and address the competent medical and lay evidence of record, including but not limited to: (i) The Veteran’s service treatment records; (ii) The Veteran’s service personnel records; (iii) The Veteran’s post-service VA medical records; (iv) The Veteran’s post-service private medical records; (v) Various articles submitted by the Veteran reflecting the use of chemicals and herbicide agents in the United States during his active duty service; and (vi) The Veteran’s, Veteran’s wife’s, and Veteran’s colleague’s competent lay statements concerning the Veteran’s first-hand experiences during service and the onset and continuity of his symptomatology. (b) If the clinician determines that the Veteran’s diabetes mellitus is less likely than not due to active duty service and/or ACDUTRA, the clinician should discuss what other factor(s) caused the disorder. In other words, the clinician should determine the most likely etiology of the Veteran’s diabetes mellitus. A complete rationale must be provided for all opinions and conclusions reached. 4. Forward the claims file to an appropriate clinician to determine the nature and etiology of any and all renal condition(s) attributable to the Veteran. The entire claims file, including a copy of this remand, must be made available to the clinician, who must note its review. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. The clinician should identify any and all renal condition(s) attributable to the Veteran throughout the appellate period. (a) For each condition so identified, the clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s condition manifested during, or is the result of, his active duty service and/or ACDUTRA, including chemical and/or herbicide agent exposure. (b) For each condition so identified, the clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s condition was either (i) caused or (ii) aggravated by his diabetes mellitus and/or hypertension. NOTE: With respect to the question concerning aggravation, the clinician is advised that aggravation under 38 C.F.R. § 3.310(b) does not require “permanent worsening” of the nonservice-connected disability. If aggravation is found, the clinician should attempt to identify the baseline level of disability prior to such aggravation. In formulating his or her opinions, the clinician should consider and address the competent medical and lay evidence of record, including but not limited to: (i) The Veteran’s service treatment records; (ii) The Veteran’s service personnel records; (iii) The Veteran’s post-service VA medical records; (iv) The Veteran’s post-service private medical records; (v) Various articles submitted by the Veteran reflecting the use of chemicals and herbicide agents in the United States during his active duty service; and (vi) The Veteran’s, Veteran’s wife’s, and Veteran’s colleague’s competent lay statements concerning the Veteran’s first-hand experiences during service and the onset and continuity of his symptomatology. (c) If the clinician determines that the Veteran’s renal condition(s) is/are less likely than not due to active duty service and/or ACDUTRA, and/or that the Veteran’s renal condition(s) is/are less likely than not caused and/or aggravated by his diabetes mellitus and/or hypertension, the clinician should discuss what other factor(s) caused the disorder(s). In other words, the clinician should determine the most likely etiology of the Veteran’s renal condition(s). A complete rationale must be provided for all opinions and conclusions reached. 5. Forward the claims file to an appropriate clinician to ascertain the nature and etiology of the Veteran’s hypertension. The entire claims file, including a copy of this remand, must be made available to the clinician, who must note its review. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. (a) The clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension manifested during, or is the result of, his active duty service and/or ACDUTRA, including chemical and/or herbicide agent exposure. (b) The clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension was either (i) caused or (ii) aggravated by his diabetes mellitus. NOTE: With respect to the question concerning aggravation, the clinician is advised that aggravation under 38 C.F.R. § 3.310(b) does not require “permanent worsening” of the nonservice-connected disability. If aggravation is found, the clinician should attempt to identify the baseline level of disability prior to such aggravation. In formulating his or her opinions, the clinician should consider and address the competent medical and lay evidence of record, including but not limited to: (i) The Veteran’s service treatment records, including all blood pressure readings taken; (ii) The Veteran’s service personnel records; (iii) The Veteran’s post-service VA medical records; (iv) The Veteran’s post-service private medical records; (v) Various articles submitted by the Veteran reflecting the use of chemicals and herbicide agents in the United States during his active duty service; and (vi) The Veteran’s, Veteran’s wife’s, and Veteran’s colleague’s competent lay statements concerning the Veteran’s first-hand experiences during service and the onset and continuity of his symptomatology. (c) If the clinician determines that the Veteran’s hypertension is less likely than not due to his active duty service and/or ACDUTRA, and/or that the Veteran’s hypertension is less likely than not caused and/or aggravated by his diabetes mellitus, the clinician should discuss what other factor(s) caused the disorder. In other words, the clinician should determine the most likely etiology of the Veteran’s hypertension. A complete rationale must be provided for all opinions and conclusions reached. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Seserman 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.