Citation Nr: 1425952 Decision Date: 06/09/14 Archive Date: 06/16/14 DOCKET NO. 12-00 003 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for systemic lupus erythematosus. 2. Entitlement to service connection for systemic lupus erythematous, to include as secondary to service-connected discoid lupus erythematosus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from January 1976 to January 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to service connection for systemic lupus erythematosus on the merits. A review of the VA paperless claims processing system reveals additional documents pertinent to the present appeal, specifically, the May 2014 Informal Hearing Presentation submitted by the Veteran's representative. As discussed below, the Veteran's representative asserts that the Veteran's fibromyalgia may be a symptom of or evidence of systemic lupus erythematosus. To the extent that future medical comment, requested by the Board's remand herein, determines that such is not the case, it remains possible that the Veteran intends to file a claim for service connection for fibromyalgia. The scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). However, in this case, the Veteran has been very specific in his communication with VA, asserting throughout the entire course of the appeal that his claim was for service connection for lupus, specifically, systemic lupus erythematosus. There is no evidence that he was, during the course of the appeal, asserting a claim for a separate and distinct disability, fibromyalgia, such that the claim presently before the Board should be expanded. The Agency of Original Jurisdiction (AOJ) should clarify if the Veteran indeed wishes to pursue a claim for service connection for fibromyalgia and if a positive response is received, develop such accordingly. The issue of entitlement to service connection for systemic lupus erythematosus, to include as secondary to service-connected discoid lupus erythematosus, addressed in the REMAND portion of the decision below, is REMANDED to the AOJ. FINDINGS OF FACT 1. In a February 1985 rating decision, the RO denied service connection for systemic lupus erythematosus; the Veteran did not appeal. 2. The evidence received since the February 1985 RO decision is not cumulative or redundant of evidence previously of record and raises a reasonable possibility of substantiating the claim of entitlement to service connection for systemic lupus erythematosus, to include as secondary to service-connected discoid lupus erythematosus. CONCLUSIONS OF LAW 1. The February 1985 RO decision is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.160(d), 20.302 (2013). 2. New and material evidence has been received to reopen the claim of service connection for systemic lupus erythematosus, to include as secondary to service-connected discoid lupus erythematosus. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.156, 3.159 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist In this decision, the Board reopens the Veteran's previously denied claim. As this represents a complete grant of the benefit sought, limited to the only issue decided herein, to reopen the previously denied claim, no discussion of VA's duty to notify and assist is necessary. The Board notes, as will be discussed below, that further assistance is necessary prior to review of the merits of the claim. New and Material Evidence In general, VA rating decisions that are not timely appealed are final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302. Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as 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(a). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Thus, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In order for evidence to be sufficient to reopen a previously denied claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). Furthermore, "material evidence" could be "some new evidence [that] may well contribute to a more complete picture of the circumstances surrounding the origin of the veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Hodge v. West, 155 F. 3d 1356, 1363 (Fed. Cir. 1998). If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to the merits of the claim on the basis of all of the evidence of record. Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). In this case, service connection for systemic lupus erythematosus was denied in a February 1985 RO rating decision on the basis that there was no diagnosis of such a disorder. The Veteran was informed of the RO's decision in an April 1985 letter. The RO did not consider whether such was secondary to his service-connected discoid lupus erythematosus. Separate theories in support of a claim for a particular benefit are not equivalent to separate claims, and a final denial on one theory is a final denial on all theories. Robinson v. Mansfield, 21 Vet. App. 545 (2008). Within one year of the RO's rating decision, the Veteran did not express disagreement with the decision, nor was any relevant new and material evidence, medical or lay, physically or constructively received by VA prior to the expiration of the appellate period. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156(b); 20.201; see also Buie, 24 Vet. App. 242, at 251-52. As such, the February 1985 RO rating decision became final. The evidence of record at the time of the February 1985 RO rating decision included service, VA, and private treatment records. Since that time, relevant evidence added to the claims file includes an October 2007 VA treatment note from a cardiologist indicating that the Veteran had systemic lupus erythematosus. The October 2007 VA treatment note is new, in that it was not before the RO in February 1985. It is also material, in that it relates to an unestablished fact necessary to substantiate the claim, a possible diagnosis of systemic lupus erythematosus, thus raising a reasonable possibility of substantiating the claim. In determining that the evidence submitted since the February 1985 RO rating decision was both new and material, the Board took cognizance of whether the evidence could, if the claim was reopened, reasonably result in the substantiation of the claim with VA's assistance. 38 C.F.R. § 3.303(b); see Shade, 24 Vet. App. at 117. As the Board has determined that new and material evidence has been received as to the Veteran's claim, it is necessary to consider whether the Veteran would be prejudiced by the Board proceeding to a decision on the merits. In this case, a letter dated in May 2009 provided the Veteran with the laws and regulations pertaining to consideration of his claim of on the merits. However, further development is required prior to the Board's review of the merits of the claim. ORDER New and material evidence having been received; the claim of entitlement to service connection for systemic lupus erythematosus, to include as secondary to service-connected discoid lupus erythematosus, is reopened. REMAND The most recent VA treatment records available are dated in June 2011. On remand, the AMC should obtain and associate with the claims file the Veteran's updated VA treatment records. The Veteran asserts that his claimed systemic lupus erythematosus is secondary to his service-connected discoid lupus erythematosus. It appears that in an April 2009 statement, the Veteran also asserted that his disability is related to the contaminated water to which he was exposed during service at Camp Lejeune, North Carolina. He submitted a copy of an August 2008 letter sent by the Department of the Army informing him of the unregulated chemicals found in the base drinking water and ongoing research. His service separation form, his DD-214, indicates that he both entered and separated from service at Camp Lejeune during the known contamination period. On remand, the AMC should develop the Veteran's claim pursuant to current procedures for claims based on contaminated water at Camp Lejeune. His VA examination reports and the balance of his VA treatment records are silent for a diagnosis of systemic lupus erythematosus. However, as discussed above, a cardiologist, during VA treatment in October 2007, indicated that the Veteran had systemic lupus erythematosus. It is not clear whether the cardiologist was recording the Veteran's report, or if such a disability was indeed diagnosed. The most recent VA examination, dated in October 2009, specifically determined that a diagnosis of systemic lupus erythematosus was not supported by the evidence. It also appears that during VA treatment over the course of the appeal, his service-connected discoid lupus erythematosus may have also been referred to as subcutaneous and/or sub-acute lupus erythematosus. Further, as the Veteran's representative asserted, in his May 2014 Informal Hearing Presentation, that it does not appear that the examiner addressed the Veteran's fibromyalgia and arthralgia. The Veteran asserts that such represent symptoms or evidence of his claimed lupus. The Veteran, in a number of written statements, asserts that he has been prescribed medication, hydroxychloroquine, as a disease modifying anti-rheumatic drug to suppress his dysfunctional immune system to treat lupus. Thus, on remand, the AMC should schedule the Veteran for a VA examination to sufficiently address the Veteran's prescription medication regimen and pain complaints and to determine if systemic lupus erythematosus, if any, or any other lupus beyond that of his already service-connected discoid lupus erythematosus, to include subcutaneous or sub-acute lupus erythematosus, if any, is related to service or his service-connected discoid lupus erythematosus. Accordingly, the case is REMANDED for the following action: 1. Follow all current development procedures for the development of the claim in light of the contention that the Veteran's claimed systemic lupus erythematosus, or subcutaneous and/or sub-acute lupus erythematosus, if separate from his service-connected discoid lupus erythematosus, is due to contaminated drinking water at Camp Lejeune, to include but not limited to VA Fast Letter 11-03, revised January 28, 2013. 2. Obtain and associate with the claims file treatment records from the VA Medical Center (VAMC) in Biloxi, Mississippi, dated from June 2011 to the present. If a negative response is received from any VA facility, the Veteran must be duly notified and provided an opportunity to submit such records. 3. Then, schedule the Veteran for a VA examination. All indicated testing should be completed. (a) The examiner should specifically determine if the Veteran has systemic lupus erythematosus. In this regard, the examiner should specifically discuss the October 2007 VA treatment note indicating a diagnosis of systemic lupus erythematosus, and any other diagnoses of systemic lupus erythematosus of record. In this regard, the examiner should also specifically discuss the Veteran's use of hydroxychloroquine, his complaints of pain, and his fibromyalgia or arthralgia; and determine whether such represent symptoms or evidence of systemic lupus erythematosus. (b) The examiner should specifically determine if the Veteran's subcutaneous and/or sub-acute lupus erythematosus, if any, are symptoms or versions of the Veteran's service-connected discoid lupus erythematosus or versions of lupus separate and apart, thus differentiated, from his service-connected discoid lupus erythematosus. (c) The examiner should opine as to whether it is at least as likely as not (at least a 50 percent probability) that any systemic lupus erythematosus, or subcutaneous and/or sub-acute lupus erythematosus, if separate from his service-connected discoid lupus erythematosus, was incurred in service, or is otherwise related to service. In this regard, the examiner should specifically consider the Veteran's in-service scalp complaints leading to the diagnosis of discoid lupus erythematosus, as well as his exposure to contaminated water at Camp Lejeune. The examiner is advised that the Veteran entered service at Camp Lejeune in January 1976 and separated from service at Camp Lejeune in January 1980, and exposure is considered to include exposure to the solvents perchloroethylene, tetrachloroethylene, and trichloroethylene, believed to have entered the base water supply after emerging from an off-base dry cleaning firm and leaking underground storage tanks. (d) The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that any systemic lupus erythematosus or subcutaneous and/or sub-acute lupus erythematosus, if separate from his service-connected discoid lupus erythematosus, is proximately due to, the result of, his service-connected discoid lupus erythematosus. (e) The examiner should then, as a clear and separate response, opine as to whether it is at least as likely as not (50 percent or greater probability) that any systemic lupus erythematosus or subcutaneous and/or sub-acute lupus erythematosus, if separate from his service-connected discoid lupus erythematosus, is aggravated, made permanently worse beyond the natural progression of the disease, by his service-connected discoid lupus erythematosus. The claims file, to include a copy of this remand, should be made available to the examiner for review in conjunction with the examination, and the examiner should note such review. A complete rationale should be provided for all opinions given. The opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to mere speculation, as merely stating this will not suffice. The claims file must be properly documented regarding any notifications to the Veteran as to any scheduled examination. 4. Subsequent to the VA examination, review the examination report to ensure complete compliance with the directives of this remand. If any deficiency is found, corrective procedures must be implemented. 5. Then, after ensuring any other necessary development has been completed; readjudicate the Veteran's claim, considering any additional evidence added to the record. If any action remains adverse to the Veteran, provide the Veteran and his representative with a Supplemental Statement of the Case (SSOC) and allow the Veteran an appropriate opportunity to respond thereto. Thereafter, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2013) failure to cooperate by not attending any requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs