Citation Nr: 0003361 Decision Date: 02/09/00 Archive Date: 09/08/00 DOCKET NO. 95-28 082 DATE FEB 09, 2000 On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Whether new and material evidence has been presented to reopen the veteran's claim for service connection for diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas D. Jones, Associate Counsel INTRODUCTION The veteran had active service from April 1948 to May 1968. This appeal to the Board of Veterans' Appeals (Board) arises from the February 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which held that no new and material evidence had been presented with which to reopen the veteran's claim for service connection for diabetes mellitus. The veteran filed a timely notice of disagreement, initiating this appeal. This claim was initially presented to the Board in April 1997, at which time it was remanded for additional development, including a Board hearing. A personal hearing was afforded the veteran in April 1999 at the RO before a traveling member of the Board. The claim was returned to the Board in June 1999, at which time it was again remanded for additional development. It is now back before the Board for a third time. FINDINGS OF FACT 1. In a December 1978 rating decision, the RO denied the veteran's claim for service connection for diabetes. He did not file a timely notice of disagreement. 2. In support of his application to reopen his claim, the veteran has submitted post- service medical treatment records, copies of his service medical records, and his own contentions. 3. The veteran's evidence submitted since the last final denial of his claim is not new. 2 - CONCLUSION OF LAW The veteran has not submitted new and material evidence with which to reopen his claim for service connection for diabetes mellitus. 38 U.S.C.A. 5108, 7105 (West 1991 & Supp. 1999); 38 C.F.R. 3.156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background In a December 1978 rating decision, the RO denied the veteran's service connection claim for diabetes mellitus, finding no evidence this disability was incurred in service or within a presumptive period thereafter. However, a current diagnosis of diabetes mellitus was acknowledged. The veteran did not file a timely notice of disagreement regarding this determination. The veteran was afforded outpatient treatment at Moncrief military hospital beginning in 1980. A diagnosis of adult-onset diabetes mellitus was confirmed. He was placed on a regular regime of insulin injections. Since that time, the veteran has received extensive outpatient medical care at that facility for a variety of medical disabilities, including diabetes mellitus, insulin dependent type. In January 1995, the veteran was admitted to a military medical facility for genitourinary surgery. His medical diagnoses included insulin dependent diabetes mellitus. The veteran filed an application in December 1995 seeking to reopen his claim for service connection for diabetes mellitus based on the submission of new and material evidence. He also submitted copies of October 1961 and December 1967 military medical history reports. The RO reviewed this evidence and issued a February 1996 rating decision denying the application to reopen the service - 3 - connection claim for diabetes mellitus, due to a lack of new and material evidence. The veteran filed a notice of disagreement that same month, and was sent a March 1996 statement of the case. He then filed an April 1996 VA Form 9, perfecting his appeal. A personal hearing at the RO was afforded the veteran in April 1996. He stated he began having "high sugar" while still on active duty, but this problem was controlled with diet and weight management. Later on, he had to be placed on oral medication, and his "high sugar" eventually progressed such that doctors told him to file for compensation, which the veteran did in the 1970's. The RO hearing officer considered the veteran's testimony, but did not find it new and material, and continued the prior RO denial. The veteran's claim was initially presented to the Board in April 1997, at which time it was remanded for a hearing before a traveling member of the Board. In December 1997, the RO received the veteran's treatment records from St. Alban's Naval Hospital, where he was treated for a variety of disabilities in the early 1970's following his retirement from service. According to these medical records, he was admitted in June 1973 for treatment of a fracture jaw. He was also noted to have diabetes, controlled by diet modification only. No date of onset was given. A personal hearing before a Board member was afforded the veteran at the RO in April 1999. He testified that he was first told he had diabetes in 1965, while on active duty. However, no medications were prescribed at that time, as the disease could be managed with appropriate diet and exercise. Following service, he sought medical treatment at St. Alban's Naval Hospital in 1971, at which time he was afforded a "glucose workup" which again confirmed a diagnosis of diabetes. Also in 1971, he applied for a job with the Federal Reserve, for which he was required to undergo a physical examination. He was told that because diabetes was diagnosed, he was denied for the Federal Reserve position. He began taking regular insulin injections in 1978, according to his testimony. Also at his hearing, the veteran - 4 - submitted additional copies of service physical examination reports from the 1960's. The veteran's appeal was returned to the Board in June 1999, at which time it was again remanded for additional development. The RO reconsidered the veteran's claim in July 1999, and continued the prior denial of his application to reopen the claim for service connection for diabetes mellitus. The claim was then returned to the Board. Analysis The veteran seeks to reopen a previously and finally denied claim for service connection for diabetes mellitus. His claim was previously adjudicated by the RO in December 1978, at which time service connection for diabetes was denied; the veteran did not file a timely notice of disagreement. In the absence of a timely appeal, this RO decision is final, and cannot be reopened unless the veteran presents new and material evidence. 38 U.S.C.A. 5108, 7105 (West 1991 & Supp. 1999); 38 C.F.R. 3.156 (1999). When determining whether new and material evidence has been submitted to warrant reopening under 38 U.S.C.A. 5108, consideration must be given to all of the evidence submitted since the last final disallowance of the claim. 38 U.S.C.A. 5108 (West 1991); Evans v. Brown, 9 Vet. App. 273 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). New evidence is that which is not cumulative or redundant of previously considered evidence; material evidence is that which is relevant and probative to the issue at hand, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. 3.156 (1999); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In reviewing the veteran's application to reopen the previously- denied claim for service connection, the Board is cognizant of the case of Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), in which the U.S. Court of Appeals for the Federal Circuit 5 - ("Federal Circuit") invalidated the legal test established by the Court of Veterans Appeals (now known as the U.S. Court of Appeals for Veterans Claims) ("Court") in Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991) regarding the definition of new and material evidence. This test defined material to mean creating "a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome." Colvin at 174. The Court of Appeals for the Federal Circuit found this test imposed an extra and unnecessary burden on the veteran by going beyond the regulatory definition of material found in 38 C.F.R. 3.156. Hence, the Colvin test was overruled by the Hodge Court for purposes of reopening claims for the award of veterans' benefits. Nevertheless, the statutory requirements for reopening a previously denied claim, found in 38 U.S.C.A. 5108 and 38 C.F.R. 3.156, remain unchanged, and rating decisions based solely on the question of whether the record includes new evidence, with no determination as to the materiality of evidence, are not affected by the Hodge decision. See also Smith v. West, 12 Vet. App. 312, 314-15 (1999). In the present case, a remand was ordered in June 1999 in order for the agency of original jurisdiction to reconsider the evidence in light of Hodge; the RO reconsidered the evidence, and continued the prior determination that it was not new and material. The claim was then returned to the Board. In support of his application to reopen Ms claim, the veteran has submitted post- service medical treatment records, as well as copies of his service medical records. He has also submitted his own contentions, both in writing and in oral testimony at RO and Board personal hearings. Considering first the post-service medical treatment records, these records confirm a current diagnosis of diabetes mellitus, for which the veteran is on a regular schedule of insulin injections. According to the evidence submitted by the veteran, he began regular treatment at military medical facilities in 1980 for diabetes, and was placed on insulin at that time. His treatment records for diabetes demonstrate regular follow-up care from that time up to the present day. However, in conclusively demonstrating a current diagnosis of diabetes mellitus, the veteran - 6 - merely affirms a fact conceded by the RO at the time of the December 1978 denial, which clearly lists diabetes mellitus as among the veteran's current disabilities. The evidence submitted by the veteran since the December 1978 denial demonstrates a current diagnosis only as far back as the 1970's, and does not indicate the presence of diabetes during the veteran's service period or within a year thereafter. 38 U.S.C.A. 1110, 1112, 1113 (West 1991 & Supp. 1999); 38 C.F.R. 3.303, 3.304, 3.307, 3.309 (1999). Thus, these recent records, because they only address an issue already conceded by the VA, are cumulative and redundant of evidence already of record at the time of the previous denial, and are not new under the law. 38 C.F.R. 3.156 (1999). Because this evidence is not new, it is not necessary to consider if it is material. Smith v. West,, 12 Vet. App. 312, 315 (1999). The veteran has also submitted copies of his service medical records, accompanied by his own contentions. He asserts that he was first diagnosed with diabetes during service, and offers several copies of various service medical records as supporting evidence. However, the veteran's own assertions regarding medical etiology and diagnosis need not be accepted by the Board, as he is a layperson not able to offer expert medical opinion testimony. See Moray v. Brown, 5 Vet. App. 211, 214 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The copies of the service medical records are themselves not new, as they were of record and considered by the RO at the time of the 1978 denial. Clearly, these copies are thus not new as defined under 38 C.F.R. 3.156 (1999). In conclusion, the veteran's evidence submitted since the last final denial of his claim is not new and material, and therefore, his application to reopen his claim for service connection for diabetes mellitus must be denied. 38 U.S.C.A. 5108 (West 1991); 38 C.F.R. 3.156 (1999). 7 - ORDER The application to reopen the veteran's previously-denied claim for service connection for diabetes mellitus is denied, based on the lack of new and material evidence. G. H. SHUFELT Member, Board of Veterans' Appeals 8 -