Citation Nr: 21022617 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 16-41 924 DATE: April 16, 2021 ORDER New and material evidence has been received to reopen the previously denied claim for service connection for diabetes mellitus type II (diabetes), and to this extent only, the appeal is granted. REMANDED Entitlement to service connection for diabetes, to include as due to radiation exposure, is remanded. Entitlement to service connection for gout is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT 1. The Veteran’s claim for service connection for diabetes was denied in an October 2002 rating decision that was not timely appealed, nor was any new and material evidence submitted within the appeal period; that decision is final.   2. Evidence received since that time relates to an unestablished fact necessary to substantiate the claim. CONCLUSION OF LAW The criteria to reopen the claim for service connection for diabetes have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1966 to February 1968. These matters are before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified before the undersigned Veterans Law Judge at a virtual hearing. A transcript of his testimony is of record. 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for diabetes Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (2020). New evidence means existing evidence not previously submitted to VA. 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. 38 C.F.R. § 3.156(a) (2020). 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. Id. The Court has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The RO denied the Veteran’s claim of entitlement to service connection for diabetes in an October 2002 rating decision, finding no in-service event, injury, illness, or disease. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2020). The evidence received since the October 2002 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156 (2020). For example, the Veteran asserted that his diabetes was related to radiation exposure during his duties on the USS Sperry, a nuclear submarine tender. See January 2021 hearing transcript. Alternatively, he has also asserted that it is related to his in-service diet. Id. He also submitted treatise evidence discussing the relationship between radiation exposure and diabetes. This new evidence addresses the reason for the previous denial; that is, a possible relationship to service, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus, supra. Accordingly, the claim is reopened and will be considered on the merits. REASONS FOR REMAND 1. Entitlement to service connection for diabetes, to include as due to radiation exposure, is remanded. 2. Entitlement to service connection for gout is remanded. 3. Entitlement to service connection for hypertension is remanded. 4. Entitlement to service connection for sleep apnea is remanded. The Veteran asserts that his diabetes, gout, hypertension, and sleep apnea are related to his in-service diet changes, specifically a diet high in fat and carbohydrates. Accordingly, a remand for a VA opinion is required. The Board has not overlooked the positive private opinion from Dr. Levin indicating that the Veteran’s diabetes, gout, and sleep apnea are related to service. Nevertheless, that opinion is based on an inaccurate factual premise, namely that the Veteran gained 20-30 pounds during service. See February 1966 and January 1968 reports of medical examination (indicating that the Veteran gained approximately five pounds during active service). Thus, Dr. Levin’s opinion it is inadequate for adjudicating the claims. Additionally, the Veteran asserted that his diabetes is related to radiation exposure. Specifically, he asserts that he was exposed to radiation while serving aboard the USS Sperry, a nuclear submarine tender, as a result of spills and nuclear accidents. This theory of entitlement has not been developed. On remand, all appropriate action should be taken to determine the nature and extent of any in-service radiation exposure. The matters are REMANDED for the following actions: 1. Conduct appropriate development concerning the Veteran’s assertion that he was exposed to radiation during service aboard the USS Sperry. 2. Forward the claims file to a VA clinician to obtain an opinion regarding the Veteran's diabetes. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the clinician should opine: (a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s diabetes had its onset during service or is otherwise related to service, including the Veteran’s diet during service. In rendering the above requested opinion, the clinician should address the February 2021 statement from Dr. Levin. (b.) If radiation exposure is confirmed, state whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s diabetes is related to such radiation exposure. In rendering the above requested opinion, the clinician should address the treatise evidence regarding the relationship between radiation exposure and diabetes as well as the February 2012 opinion from Dr. Christensen-Dalla indicating that “it is possible that his diabetes may be linked to radiation exposure.” A complete rationale should be provided for all opinions and conclusions expressed. 3. Forward the claims file to a VA clinician to obtain an opinion regarding the Veteran’s gout. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the clinician should opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s gout had its onset during service or is otherwise related to service, including the Veteran’s diet during service. In rendering the above requested opinion, the clinician should address the treatise evidence regarding diet and gout, the February 2021 statement from Dr. Levin, and lay statements from the Veteran and his wife regarding the Veteran’s toe pain during and after service. A complete rationale should be provided for all opinions and conclusions expressed. 4. Forward the claims file to a VA clinician to obtain an opinion regarding the Veteran’s hypertension. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the clinician should opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s hypertension had its onset during service or is otherwise related to service, including the Veteran’s diet during service. In rendering the above requested opinion, the clinician should address the February 2021 statement from Dr. Levin. A complete rationale should be provided for all opinions and conclusions expressed. 5. Forward the claims file to a VA clinician to obtain an opinion regarding the Veteran’s sleep apnea. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the clinician should opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s sleep apnea had its onset during service or is otherwise related to service, including the Veteran’s diet during service. In rendering the above requested opinion, the clinician should address the lay evidence from the Veteran’s wife that he began snoring in 1967 as well as the February 2021 statement from Dr. Levin. A complete rationale should be provided for all opinions and conclusions expressed. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Anderson 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.