Citation Nr: 21016010 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 16-40 762 DATE: March 19, 2021 ORDER The Board having determined that new and material evidence has not been received, reopening the claim of entitlement to service connection for diabetes mellitus is denied. FINDING OF FACT 1. An unappealed March 1996 rating decision denied service connection for diabetes mellitus. 2. The evidence associated with the claims file subsequent to the March 1996 rating decision is cumulative or redundant of the evidence previously of record, or does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for diabetes mellitus. CONCLUSION OF LAW New and material evidence has not been received sufficient to reopen a claim of entitlement to service connection for diabetes mellitus. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps (USMC) from August 1977 to July 1980. The Veteran had additional service in the Army National Guard. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. This case was previously before the Board. In an August 2019 decision, the Board denied reopening the previously denied claim of entitlement to service connection for diabetes mellitus. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2020 Order, the Court granted a Joint Motion of the parties, vacated the Board’s decision with respect to the issue identified on above, and remanded the case to the Board for action consistent with the Joint Motion. The parties to the JMR determined that the Board erred in failing to discuss whether the Veteran’s claim should be reconsidered as service treatment reports were in existence at the time of the prior final denial, but were not associated with the claims file and whether the Veteran’s alternate theory of entitlement raised at his hearing is sufficient to reopen the claim. In a March 1996 rating decision, the Veteran was denied entitlement to service connection for diabetes mellitus based on a finding that the claim was not well-grounded. In that regard, the RO found the Veteran’s claim did not have merit on its own, or was capable of substantiation. The Veteran did not appeal that decision. The pertinent evidence that has been received since the March 1996 rating decision includes additional service treatment reports and post-service treatment records. Of note, at the time of the prior denial the Veteran’s Amy National Guard records were associated with the claims file and included an undated report of medical history form on which the Veteran reported that he was diabetic. As an initial matter, the Board notes that additional service treatment reports have been associated with the claims file since the March 1996 rating decision. Although these service treatment reports (pertinent to his active duty service) were in existence at the time of the prior final denial but were not associated with the claims file, those service treatment reports are not relevant to the service connection claim as they do not relate to an in-service diagnosis or current disability. Thus, the provisions of 38 C.F.R. § 3.156(c) do not apply in the instant appeal. The Board finds that while some of the evidence added to the record is new, as it was not previously considered by VA, it is not material as it does not specifically address the reason the claim was previously denied. In this regard, the Veteran has not submitted any new evidence indicating that he has diabetes mellitus that is etiologically related to his active service. The Board notes that the Veteran testified at his March 2019 Board hearing that he was diagnosed with diabetes mellitus during his service with the Army National guard. However, the Veteran asserted the same prior to the March 1996 rating decision. Additionally, the Veteran asserted at his hearing that he believes that his diabetes was caused by the food he ate in service which contained preservatives, which aggravated his body and caused him to become diabetic. The Board notes that this by itself, as it is supported only by the Veteran’s lay contention, is not indicative of new and material evidence. New theories of entitlement are not indicative of new and material evidence. New theories of entitlement are not a basis for reopening a claim, but if evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). Lay contentions to support new theories alone are not competent evidence and cannot serve to support reopening of a claim. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). The private and VA medical records associated with the claims file do not tend to indicate that the Veteran’s diabetes mellitus is etiologically related to his active duty service, including the food he was required to eat therein. The Veteran’s lay assertion of an alternate theory of entitlement without supporting evidence does not constitute new and material evidence for the purposes of reopening the claim. Therefore, the Board finds that new and material evidence has not been presented sufficient to reopen the Veteran’s claim of entitlement to service connection for diabetes mellitus. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen the finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Cryan, 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.