Citation Nr: 22018161 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 19-20 085 DATE: March 28, 2022 ORDER New and material evidence has not been submitted to reopen a previously denied claim of entitlement to service connection for diabetes mellitus, type II (diabetes). FINDING OF FACT The evidence associated with the claims file since the May 2013 final denial does not include evidence that relates to an unestablished fact necessary to substantiate the claim, is cumulative or redundant of the evidence previously of record, or is insufficient to raise a reasonable possibility of substantiating the claim of entitlement to service connection for diabetes. CONCLUSION OF LAW Evidence received since the final May 2013 rating decision is not new and material, and reopening of the Veteran's claim for entitlement to service connection for diabetes is not warranted. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 19.20, 19.21, 19.52(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript is included in the claims file. New and material evidence VA may reopen a claim that previously has been denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers, and material evidence is 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 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). Regarding the newly submitted evidence, the United States Court of Appeals for Veterans Claims (Court) has held that 38 C.F.R. § 3.156(a) must be read as creating a low threshold, which suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 11718 (2010). Furthermore, the Court has held that evidence as to each previously unproven element of a claim is not required for the claim to be reopened. Id. at 121. VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim on any basis, whether a decision on the underlying merits or a petition to reopen. Evans v. Brown, 9 Vet. App. 273, 283 (1996). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence generally is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of any RO determinations that new and material evidence has been submitted to reopen a previously denied claim, the Board still must review whether new and material evidence has been submitted. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). In the May 2013 rating decision, service connection for diabetes was denied. At the time, the evidence of record included the Veteran's 2011 claim; service treatment records; military personnel records; May 2011 Veteran's lay statement; correspondences from Disabled American Veterans dated May 2011 and April 2013; April 2013 authorization and consent for Dr. T.T. to release information to the VA and private treatment records; April 2013 diabetes disability benefits questionnaire (DBQ); April 2013 male reproductive organ conditions DBQ; and a May 2013 VA memorandum for Formal Finding of Lack of Information required to corroborate herbicide Agent Orange. The evidence did not substantiate that the condition was incurred in or aggravated by military service, or presumptively linked to herbicide agent exposure. It was noted, presumptive service connection for diabetes based on exposure to herbicide agents while serving in Korea between April 1968 to August 1971 requires assignment to an eligible unit as specified by the Department of Defense (DOD). Military personnel records show the Veteran was assigned to the 696th Ordinance Company and Charlie Company 728th Military Police Battalion in Korea from April 1969 to April 1970. In his May 2011 statement, he said his duties included guard duty on the DMZ. It was determined his military unit has not been identified by DOD as operating in the Korean DMZ during the qualifying time period; thus, he is not eligible for relief pursuant to the herbicide agent presumption. 38 C.F.R. § 3.309(e). This decision was not appealed, and no new evidence pertinent to the claim was received by VA within one year from the date that the RO mailed notice of the decision to the Veteran. Therefore, the May 2013 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 19.20, 19.52, 20.1103; see also 38 C.F.R. § 3.156(b), (c). In September 2018, the Veteran filed a claim for service connection for diabetes. In a November 2018 rating decision and May 2019 statement of the case, the RO denied reopening the Veteran's claim because the evidence submitted was not new and material since the final May 2013 rating decision. The relevant evidence received since the final May 2013 rating decision is detailed below. In September 2018, military personnel records and service treatment records were submitted by the Veteran. These were previously before the RO in May 2013. The Board finds these records cumulative and redundant, and not new. In October 2018, Illinois VAMC records were associated with the record. These records indicate the Veteran underwent an environmental Agent Orange registry examination in January 2013. The Veteran reported he worked at night as an MP in Korea, he did not handle Agent Orange, and he does not think he was sprayed or splashed by it. Although these records are new, the Board finds this evidence not material. These medical records continue to show the Veteran was in Korea, but it does not show evidence regarding the in-service element or nexus element for his claim. In February 2019, the Veteran filed a notice of disagreement stating he was stationed at Camp Baker, Seoul, South Korea with the 696th Ordinance Company. The Board finds this evidence is cumulative and redundant, and not new. In February 2019, the Veteran submitted numerous documents in support of his rationale for compensation due to herbicide agent exposure while in country Korea. Although these records are new, the Board finds this evidence not material. These documents do not provide evidence regarding the in-service element or nexus element for his claim. As there exists no evidence that is not cumulative of the evidence previously of record that would raise a reasonable possibility of substantiating the Veteran's claim, the evidence since the May 2013 final denial is not new and material, and the RO's decision in November 2018 and May 2019 to deny reopening the Veteran's claim was proper. See 38 C.F.R. § 3.156(a). Since the November 2018 rating decision and May 2019 statement of the case, the Veteran submitted an April 2019 diabetes DBQ in July 2019. The private physician opined the Veteran's hypertension and peripheral vascular disease are at least as likely as not due to his diabetes. He also opined his diabetes more likely than not permanently aggravated his peripheral vascular disease. Although these records are new, the Board finds this evidence not material. Specifically, these are claims for secondary service connection, but the Veteran is not service connected for diabetes. Since the underlying disorder is not service connected, the Veteran's claim for secondary service connection on this basis is without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Moreover, these medical records continue to show the Veteran is treated for diabetes, but the Veteran has not proffered any evidence regarding the in-service element or nexus element for his claim. Additionally, during the November 2021 Board hearing, the Veteran testified he spent one night on duty in the DMZ when he was an MP in Korea. Moreover, he was stationed in Seoul, which was 10 to 15 miles from the DMZ where Agent Orange was sprayed. This information was previously before the RO in May 2013. Accordingly, the Board finds these lay statements cumulative and redundant, and not new. As there exists no evidence that is not cumulative of the evidence previously of record that would raise a reasonable possibility of substantiating the Veteran's claim, the evidence since the May 2013 final denial is not new and material. See 38 C.F.R. § 3.156(a). Under these circumstances, the Board finds that new and material evidence has not been submitted to reopen the Veteran's claim of service connection for diabetes. Accordingly, the claim is not reopened, and remains denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.M. Edwards, 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.