Citation Nr: 0007404 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 98-05 260 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The appellant and the appellant's son ATTORNEY FOR THE BOARD R. A. Caffery, Counsel INTRODUCTION The veteran served on active duty from June 1944 to February 1946. By rating action dated in November 1994 the Department of Veterans Affairs (VA) Regional Office, Louisville, Kentucky, denied entitlement to service connection for diabetes mellitus as secondary to the veteran's service- connected residuals of frostbite of both feet. The veteran was duly notified of the decision and did not submit an appeal. In June 1997 the veteran submitted additional information for the purpose of reopening his claim. In a November 1997 rating action the regional office held that the additional evidence was not new and material and was insufficient to reopen the claim. The veteran appealed from that decision. In November 1998 the veteran and his son testified at a hearing before a member of the Board of Veterans' Appeals (Board) sitting at the regional office. The case is now before the Board for appellate consideration. FINDINGS OF FACT 1. The veteran has established service connection for residuals of frostbite of both feet, currently rated 10 percent disabling. 2. In a November 1994 rating action the regional office denied entitlement to service connection for diabetes mellitus as secondary to the veteran's frozen feet residuals. The veteran was duly notified of the decision and did not submit an appeal. 3. In June 1997 the veteran submitted additional information for the purpose of reopening his claim. 4. The evidence that has been submitted since the November 1994 rating action is new and is material to the veteran's claim. 5. The veteran's claim for service connection for diabetes mellitus as aggravated by the service-connected residuals of frostbite of his feet is plausible. CONCLUSIONS OF LAW 1. The November 1994 rating action denying entitlement to service connection for diabetes mellitus is final; however, new and material evidence has been presented to reopen the claim. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a), 20.302 (1999). 2. The veteran has submitted a well-grounded claim for entitlement to service connection for diabetes mellitus on the basis of aggravation by his service-connected residuals of frostbite of the feet. 38 U.S.C.A. § 5107(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran has maintained that service connection should be established for diabetes mellitus on the basis that it is secondary to his service-connected residuals of frostbite of the feet. That same issue was denied by the regional office in November 1994 and that decision became final. The regional office has affirmed that denial; finding that no new and material evidence has been submitted and thus the current request cannot be considered a reopened claim. The evidence of record at the time of the November 1994 rating action included a report of the veteran's VA hospitalization in January and February 1961 for diabetic control. Various findings were recorded on physical examination during the hospitalization. The final diagnoses included diabetes mellitus, treated and improved. The record also contained a report of hospitalization by the VA in July and August 1976 for diabetes mellitus and problems resulting from that condition; a report of examination by the VA in January 1989 when the diagnoses included diabetes mellitus, insulin-dependent and treated, but not very well controlled; a report of hospitalized by the VA in October 1992 when the final diagnoses included diabetes mellitus requiring insulin, and a VA general medical examination in February 1993 when the diagnosis was adult-onset insulin- dependent diabetes mellitus. In June 1997 the veteran submitted a newspaper article which included a comment by a VA physician, implying that frostbite could be related to various remote illnesses including diabetes. The veteran was afforded a VA examination in September 1997. It was indicated that diabetes mellitus had been diagnosed about 36 years previously according to the veteran. Various findings were made on the physical examination including findings regarding his lower extremities. The diagnoses included isulin-dependent diabetes mellitus and residuals of frostbite. The examiner noted the article submitted by the veteran but concluded that it was unlikely that the veteran's diabetes was due to frostbite. The examiner stated that a computer assisted search had produced no articles showing frostbite as an etiological agent for diabetes mellitus. During the November 1998 Board hearing, the veteran testified that he was currently being treated by the VA for his diabetes mellitus. He stated that he had had diabetes mellitus for about 40 years and had had problems with his feet ever since his discharge from service. He had received treatment from his family doctor, Root (or Route), who was deceased. After the doctor passed away, he went to his office and obtained all of the records of treatment and brought them to the VA Hospital, Louisville, and turned them in. He had not seen or heard about the records since he turned them in at the VA hospital. He currently did not see any physician except for physicians at the VA hospital. The applicable legal criteria provide that, when a prior determination on an issue is not appealed, it becomes final. It may not be reopened unless new and material evidence is submitted. 38 U.S.C.A. §§ 5107, 7105; 38 C.F.R. §§ 3.104(a), 20.302. New and material evidence means evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which, by itself or in connection with other 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(a). A recent decision by the U.S. Court of Appeals for the Federal Circuit modified the standard for finding whether recently submitted evidence is new and material. Hodge v. West, 155 F.3d 1356 (1998). That case removed a standard which required that the new evidence raise a reasonable possibility that the new evidence would change the outcome of the matter. In the Board's opinion, the evidence added to the record since the November 1994 rating action bears directly on the question of entitlement to service connection for diabetes mellitus and meets the current standard for reopening a claim set forth in Hodge. The evidence is considered to be so significant that it must be considered in order to fairly decide the merits of the claim. Accordingly, the Board concludes that the veteran has submitted new and material evidence sufficient to reopen his claim for service connection for diabetes mellitus. Once a claim is deemed to be reopened, it must be determined whether the claim is well grounded. Elkins v. West, No. 97- 1534 (U.S. Vet. App. Feb. 17, 1999). The Board, upon initial review to determine this matter, finds that the veteran's claim for service connection for diabetes mellitus is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a); effective on and after September 1, 1989. That is, the Board finds that he has presented a claim which is plausible. In this regard, the Board recognizes that the VA examiner in September 1997 indicated that it was unlikely that the veteran's diabetes was due to the frostbite residuals of his feet. However, the examiner did not rule out the possibility that there may be aggravation of the diabetes mellitus as a result of the frostbite residuals. Allen v. Brown, 7 Vet. App. 439 (1995). Because the regional office has not considered the reopened claim on its merits and there are elements of the duty to assist which must be satisfied, the claim must be returned to the regional office before a final Board decision is in order. ORDER New and material evidence has been presented to warrant reopening of the claim for service connection for diabetes mellitus. The claim for service connection for diabetes mellitus is well grounded. REMAND In view of the Board's decision holding that new and material evidence has been submitted to reopen the claim of entitlement to service connection for diabetes mellitus and that the reopened claim is well grounded, at least to the extent of possible aggravation of the diabetes mellitus by the service-connected frozen feet residuals, the issue must be reviewed by the regional office on a de novo basis. At the November 1998 Board hearing the veteran related that he had been treated by his private physician some 40 years earlier for diabetes mellitus and that, although the physician is deceased, he had taken all of the physician's treatment records to the VA Medical Center, Louisville. In this regard, the report of the veteran's hospitalization at that medical facility in January and February 1961 reflects awareness of the prior treatment by a private physician for diabetes mellitus. While it is only remotely possible that the records from the private physician were incorporated and retained in the VA clinical records, their possible pertinence requires that the records be checked. In view of the aforementioned matters, the case is REMANDED to the regional office for the following action: 1. The regional office should contact the VA Medical Center, Louisville, and request that that facility provide any available clinical treatment records from 1961 including any records that may have been received from the veteran's private physician, Dr. Root (or Route). All such records obtained should be associated with the claims file. 2. The veteran's case should then be reviewed by the regional office. In particular, the claim for service connection for diabetes mellitus should be considered on a de novo basis. If the determination remains adverse to the veteran, he and his representative should be sent a supplemental statement of the case and be afforded the appropriate time in which to respond. When the above action has been completed, the case should be returned to the Board for further appellate consideration, if otherwise in order. No action is required of the veteran unless he receives further notice. The purposes of this REMAND are to obtain clarifying information and also to ensure that the requirements of due process of law are satisfied. The Board intimates no opinion as to the disposition warranted in this case pending completion of the requested action. ROBERT D. PHILIPP Member, Board of Veterans' Appeals