Citation Nr: 21022183 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 17-22 627A DATE: April 15, 2021 ORDER New and material evidence was received as sufficient to reopen a claim for entitlement to service connection for type II diabetes mellitus. Service connection for type II diabetes mellitus (DM) is granted. FINDINGS OF FACT 1. A July 2011 rating decision denied service connection for diabetes mellitus was not appealed and the decision became final. 2. New and material evidence has been received since the July 2011 rating decision to substantiate the claim of entitlements to service connection for diabetes mellitus. 3. The Veteran’s currently diagnosed diabetes mellitus is found to have manifested itself to a compensable degree within a year after active duty. CONCLUSIONS OF LAW 1. The July 2011 rating decision that denied the Veteran’s claim of entitlements to service connection for diabetes mellitus is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. The criteria to reopen the claim for entitlements to service connection for diabetes mellitus have been met. 38 U.S.C. §§ 5103, 5103A, 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for type II diabetes mellitus (DM) have been met. 38 U.S.C. §§ 1110, 1112, 5107, 5108; 38 C.F.R. §§ 3.156, 3.303, 3.304, 3.307, 3.309, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Navy from February 1986 to February 2006. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file. New and material evidence The Veteran was originally denied service connection for his diabetes mellitus in July 2011. The Veteran did not file a notice of disagreement (NOD) or submit new and material evidence within a year of being notified of the denial. As such, the July 2011 decision became final. 38 U.S.C. § 7105 ; 38 C.F.R. §§ 3.156 (a), (b), 20.302, 20.1103. A finally adjudicated claim cab be reopened by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 Veteran’s 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). In determining whether evidence is “new and material,” the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the RO’s determination as to whether new and material evidence has been received, the Board has a jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See Jackson v. Principi, 265 F.2d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)). Accordingly, the Board must initially determine whether there is new and material evidence to reopen a claim of service connection. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The claim was initially denied in July 2011 as there was no evidence the condition occurred in service or within one year of service. At the time of the rating decision the evidence consisted of service treatment records, VA examinations and medical treatment records from Tripler Army Medical Center. Since that rating decision, additional VA treatment records and private records have been obtained and the Veteran also presented testimony at a Board hearing. The evidence submitted is new as it was not previously of record and the Board finds it is also material. Specifically, the letter from Dr. E.S. discusses the timing of the diagnosis and the Veteran’s testimony at the Board hearing also discussed the symptoms and onset of the condition. As these documents represent evidence not previously submitted to agency decision makers and relate to an unestablished fact necessary to substantiate the claim, the claim is reopened and will be considered on the merits. Service connection for type II diabetes mellitus (DM) The Veteran contends that he is due entitlement to service connection for his diabetes mellitus that manifested itself within one year after his discharge from active duty service. Service connection may be presumed for certain chronic diseases, such as diabetes mellitus, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§1101, 1112, 1113, 1137; 38 C.F.R. §§3.307, 3.309(a). Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. That does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease entity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. §3.303(b). Here, the Veteran clearly still has a present disability of diabetes. The relevant question before the Board is whether the Veteran’s disability manifested itself within one year after his separation from service. After thoroughly reviewing the evidence of record, the Board finds that the diabetes mellitus did manifest itself to a compensable degree within a year after separation. The Veteran submitted two letters from October 2015, from two different physicians. The first letter is from Dr. RT, a physician at the Tripler Army Medical Center (TAMC) where the Veteran was being treated for his diabetes mellitus. The second letter is from Dr. ES, a staff physician at the Matsunaga VA medical Center (VAMC). The letter from Dr. RT is focused more on the Veteran’s service-connected sleep apnea. It mentions diabetes mellitus in the last paragraph, stating that correction was needed for the Veteran’s poor control of diabetes mellitus for decades. While this indicates Dr. Rt’s belief that the Veteran may have been suffering from diabetes since at least 2005, there is no evidence of record or in Dr. RT’s letter to support that claim. Therefore, the letter from Dr. RT is granted limited probative value. The second letter, from Dr. ES, is focused solely on the Veteran’s diagnosis of diabetes mellitus. Dr. ES notes that the Veteran was initially diagnosed with diabetes in April 2007, two months after the presumptive period in which the Veteran needed to show that his disability manifested itself. The lab tests from April show that the Veteran had an extremely elevated blood glucose level of 405 and very high hemoglobin A1C of 12.2. Dr. ES noted that hemoglobin A1C is a measurement of average blood sugar over a three-month period. Additionally, an A1C level of 12.2 is equivalent to an average blood glucose level of 300. Therefore, Dr. ES concludes that it is reasonable to find that the Veteran had a blood glucose level of 300 in January 2007, within a year after separation of service and within the presumptive period. Dr. ES also pointed out that previous lab tests show the Veteran had elevated blood sugars in 2005 and 2006. Specifically, in September 2006, when the Veteran had only been separated from service for six months, he was found to have a blood glucose level of 141. In January 2016, the VA obtained a medical opinion. The VA examiner opined that the claimed condition of DM was less likely than not incurred in or caused by the claimed in-service injury, event, or illness and the Veteran’s diabetes was less likely than not incurred in active service. The examiner stated that the fasting blood sugar ratings taken in 2005 and 2006 before the Veteran separated from service did not meet the 126 mg/dL criteria to diagnose diabetes. In 2005 the Veteran’s blood sugar reading was 116 and in 2006 it was measured at 121. The VA examiner continued, stating that because there was only one reading above 126 (the September 2006 reading of 141), no diagnosis of diabetes could be found within a year after separation. The VA examiner also conceded that Dr. ES was correct in stating that A1C is a measurement of glucose control in the preceding three months, but it cannot approximate the glucose control 13 months earlier, when the Veteran separated. The Veteran also made lay statements in the CAPRI records and during his Board hearing, that before his formal diagnosis of diabetes in April 2007, he had been experiencing symptoms of diabetes including blurred vision, more frequent urination, extreme thirst, and a significant loss of weight. Lay evidence that is submitted in the record must be competent and credible. Competent lay evidence is any evidence not requiring that the proponent have any specialized education, training, or experience. 38 C.F.R. § 3.159(a)(2). However, lay statements may be competent to testify to symptoms. Here, the Veteran only offers lay statements discussing his symptoms during the presumptive period and before his formal diagnosis. These statements are competent and credible but hold low probative value because they do not mention specifically when the Veteran experienced the symptoms. The Board finds that there is an approximate balance between positive and negative evidence regarding the manifestation of the Veteran’s diabetes mellitus. The letter from Dr. ES notes that service connection can be established by showing that a chronic disease manifested itself within a year after separation from service. The VA medical opinion only discussed the issue of direct service connection in its opinion and rationale. The letter from Dr. ES also used the blood glucose reading of 141 and the A1C reading of 12.2, which equates to an average blood glucose rating of 300, to show the Veteran meets the criteria for diabetes mellitus in January 2007. The VA medical opinion does not discuss this finding by Dr. ES. While the VA argues that the rating of 300, it is a competent medical opinion from a VA doctor at one of the Veteran’s labs. Diagnostic Code 7913 provides that a compensable 10 percent rating is warranted for diabetes mellitus manageable by restricted diet only and a 20 percent evaluation for diabetes mellitus is warranted where the record contains competent evidence that the medical management of diabetes requires a restricted diet, along with either one or more daily injections of insulin or an oral hypoglycemic agent. See 38 C.F.R. § 4.119, Diagnostic Code 7913. In other words, Dr. ES has described findings that he indicated were sufficient to diagnose diabetes and would have met the compensable rating. Additionally, the Veteran reported he had symptoms of diabetes months before the formal diagnosis. Specifically, he noted blurred vision while at work in January. This lay statement bolsters the contention that the Veteran’s diabetes mellitus actually occurred in January 2007, within one year after his separation from service. Under the “benefit of the doubt” rule, where there exists “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993). In this case, there is positive evidence that the Veteran’s current diabetes mellitus manifested itself within a year after separation of service. Therefore, the Board finds that entitlement to service connection for diabetes mellitus is granted. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.L. Aumiller, Associate 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.