Citation Nr: 22016502 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 17-39 287 DATE: March 22, 2022 ORDER New and material evidence having been received, the claim of service connection for diabetes mellitus, type II is reopened. REMANDED Entitlement to service connection for arthritis, degenerative in left knee, to include as secondary to service-connected disability of bursitis of the right hip and spondyloarthritis changes L4-L5, is remanded. Entitlement to service connection for arthritis, degenerative in right knee, to include as secondary to service-connected disability of bursitis of the right hip and spondyloarthritis changes L4-L5, is remanded. Entitlement to service connection for diabetes mellitus, type II is remanded. FINDING OF FACT 1. An unappealed July 2010 rating decision declined to reopen the claim for service connection for diabetes mellitus with peripheral neuropathy. 2. Additional evidence received since the July 2010 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for diabetes mellitus, and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW 1. The July 2010 rating decision declining to reopen the claim for service connection for diabetes mellitus with peripheral neuropathy is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received since the July 2010 rating decision denying service connection for diabetes mellitus with peripheral neuropathy. 38 U.S.C. §§ 501, 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1985 to August 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office which entitlement to service connection for bilateral knee conditions and diabetes mellitus. The Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2021. A transcript is of record. The Board notes that the Veteran submitted a Freedom of Information Act (FOIA) request in January 2022 and that the request has not yet been completed; however, as this FOIA request was to obtain documents needed to resolve a personal matter unrelated to this case, the Board will proceed with the adjudication of this case. New and material evidence Irrespective of the Agency of Original Jurisdiction's (AOJ) actions, the Board must decide whether the Veteran has submitted new and material evidence to reopen a claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Generally, a claim that has been denied in an unappealed AOJ decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 501. New evidence means evidence not previously submitted to agency decision-makers. 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. 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. The regulation does not require new and material evidence as to each previously unproven element of a claim and creates a low threshold for reopening claims. 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence is presumed; its weight is not presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In this case, a March 2000 rating decision last denied the Veteran's claim for service connection for diabetes mellitus with peripheral neuropathy on the merits, finding an absence of evidence of an etiological relationship between any current diabetes and the Veteran's active service. The Veteran has submitted petitions to reopen her claim since the March 2000 denial of her claim on the merits. A July 2010 rating decision most recently declined to reopen the Veteran's claim, finding that the Veteran had not submitted new and material evidence sufficient to reopen the claim. The Veteran filed a notice of disagreement with that decision in October 2010. A statement of the case (SOC) was issued to her in December 2011, continuing the denial of her claim. However, as the Veteran did not file a substantive, nor is such contended, the July 2010 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.1103. The evidence added to the record since the July 2010 rating decision includes testimony from the November 2021 Board hearing. The Veteran described symptoms during service that were later attributed to diabetes. As the evidence obtained in this case may reasonably result in substantiation of the Veteran's claim, the previously denied service connection claim for diabetes mellitus is reopened. REASONS FOR REMAND 1. Entitlement to service connection for arthritis, degenerative in left knee, to include as secondary to service-connected disability of bursitis of the right hip and spondyloarthritis changes L4-L5, is remanded. 2. Entitlement to service connection for arthritis, degenerative in right knee, to include as secondary to service-connected disability of bursitis of the right hip and spondyloarthritis changes L4-L5, is remanded. At the November 2021 Board hearing, the Veteran testified that her VA treatment records contained a medical opinion from her primary doctor, Dr. L.C., that causally related her bilateral knee conditions to her service-connected right hip and back conditions. The Veteran estimated that this opinion was probably rendered in approximately 2018. The record reflects VA treatment records through early February 2017. As there appear to be outstanding treatment records, including an opinion causally relating her bilateral knee conditions to service-connected hip and back conditions, remand is required to obtain them. 3. Entitlement to service connection for diabetes mellitus, type II is remanded. At the November 2021 Board hearing, the Veteran acknowledged that she was not diagnosed as having diabetes mellitus until after service separation, which was sometime between 1994 and 1995. However, she maintained that the initial onset of the signs and symptoms of diabetes mellitus occurred while she was still in service. She said she was having "problems" with infections in service and after service, and that her doctors eventually concluded that the infections were being caused by, or were related to, diabetes mellitus. She emphasized that the diabetes mellitus diagnosis was made less than two years after her service discharge. The Veteran testified that the diagnosis was made at the San Juan VA medical center. The record does not contain VA treatment records prior to May 1995. Accordingly, on remand, the Agency of Original Jurisdiction (AOJ) should attempt to obtain copies of the Veteran's VA treatment records from August 1993 to May 1995. A May 1999 VA examination noted that the Veteran had a history of diabetes mellitus diagnosed around 1993; however, there is no evidence of a diagnosis in 1993 in the claims file and the May 1999 examiner did not state where they found the 1993 diagnosis. If the Veteran's VA treatment records from August 1993 to May 1995 do not show that the Veteran was diagnosed with diabetes mellitus within a year of separation from service, the Veteran should be afforded a VA examination to determine whether her current diabetes mellitus had its onset in service or within a year of discharge from service. The matters are REMANDED for the following action: 1. Obtain VA treatment records from the San Juan VAMC from August 1993 to May 1995. Also obtain updated VA treatment records for the period from February 2017 to the present. Associate any obtained records with the claims file. 2. If the above development does not show that the Veteran was diagnosed with diabetes mellitus, type II in service or within a year of separation from service, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of her diabetes mellitus. After reviewing the claims file and examining the Veteran, the examiner should opine as to whether it is at least as likely as not, or an approximate balance of the evidence, that the Veteran's diabetes mellitus has its onset in service or within a year of service discharge or is otherwise related to her active service. In providing the above requested opinion, the VA examiner is asked to consider and address the Veteran's November 2021 Board hearing testimony that experienced symptoms during service that were later attributed to diabetes mellitus. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fairlie, 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.