Citation Nr: 1309972 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 11-26 508 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for lumps and lesions of the skin (claimed as radiation burns and skin disease) claimed as due to exposure to ionizing radiation, and if so, whether service connection should be granted. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for sterility, claimed as due to exposure to ionizing radiation. 3. Entitlement to service connection for loss of concentration, claimed as due to exposure to ionizing radiation. REPRESENTATION Appellant represented by: Disabled America Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from January 1953 to January 1955. This matter comes before the Board of Veterans Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified before the undersigned Veterans Law Judge at the RO in December 2012. A transcript of his hearing has been associated with the record. The Board notes that there is a Virtual VA e-file for this Veteran. This e-file was reviewed for relevant information; however, a review of the e-file revealed that it contained duplicative information that is already in the file or evidence that is not pertinent to the current claims. The issues of entitlement to service connection for lumps and lesions of the skin and loss of concentration, as well as the issue of whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for sterility are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In an August 1988 rating decision, the RO denied service connection for lumps and lesions under the skin; the Veteran did not appeal. 2. The evidence received since the August 1988 rating decision is not cumulative or redundant of evidence previously of record, and relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a disability characterized by lumps and lesions under the skin. CONCLUSIONS OF LAW 1. The August 1988 rating decision that denied service connection lumps and lesions under the skin is final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. §§ 3.160(d), 20.1103 (2012). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a disability characterized by lumps and lesions under the skin. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Because the Board has determined that the evidence submitted is sufficient to reopen the claim of entitlement to service connection for a disability characterized by lumps and lesions under the skin, no further discussion of the VCAA is necessary at this time. Analysis Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). But see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible"). The RO denied service connection for lumps and lesions under the skin in August 1988. It determined that there was no evidence of a radiogenic disease. The evidence of record at the time of the August 1988 rating decision included the Veteran's service treatment records. They are negative for any diagnosis, complaint, or abnormal finding pertaining to the Veteran's skin. The evidence also included various VA treatment records. The Veteran was seen in November 1987 for a nodule above his left clavicle that was thought to be a lymph node. No treatment was advised at that time. In April 1988 the Veteran reported a history of radiation exposure. No diagnoses were recorded. Since the August 1988 rating decision, evidence added to the record includes an April 1991 Nuclear Test Personnel Review Verification Questionnaire and an undated Dosimetry estimate indicting 0.315 rems. (Notably, the Board in a September 1997 decision conceded that the Veteran had been exposed to radiation during OPERATION CASTLE.) Also added to the record was a February 2009 statement by A.R.B., D.O., who indicated that the Veteran had been exposed to radiation during service. Dr. B. stated that the Veteran suffered from lesions and lumps under the skin all over his body since his exposure to radioactive fallout. He opined that such was a direct after effect of exposure to high doses of radioactive fallout. As noted, the RO denied the Veteran's claim in August 1988 on the basis that there was no evidence of a radiogenic disability. Since then, VA has accepted that the Veteran was exposed to ionizing radiation and there is a medical statement relating the claimed skin disability to such exposure. As such, the defecting identified by the RO in 1988 has been cured, and the claim may be reopened. ORDER New and material evidence having been received, the petition to reopen the claim of entitlement to service connection for a disability characterized by lumps and lesions of the skin is granted. REMAND As discussed above, the record contains a private medical statement in support of the Veteran's claim of entitlement to service connection for a skin disability. However, while Dr. B. opined that the Veteran's current lesions and lumps under the skin were related to radiation exposure during service, he did not provide a clinical diagnosis for this claimed disability, nor did he provide a discussion of the rationale underlying his conclusion that the lesions and lumps claimed by the Veteran were related to radiation exposure. As such, the opinion is not adequate for the purpose of deciding the Veteran's claim. The Board accordingly concludes that a comprehensive examination to determine the etiology of any current disability characterized by lumps and lesions of the skin is warranted. Finally, the Board observes that an April 2009 rating decision denied service connection for loss of concentration and declined to reopen a claim of entitlement to service connection for sterility. In April 2009 the Veteran, through his representative, submitted a notice of disagreement with that rating decision . The filing of a Notice of Disagreement places a claim in appellate status. Therefore, a Statement of the Case regarding these issues must be issued to the appellant. As such, this issue must be remanded. Manlincon v. West, 12 Vet. App. 239, 240- 41 (1999). In light of the above discussion, the Board has determined that additional development is necessary. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination by a physician with requisite qualifications to determine the etiology of any currently present disability characterized by lumps and lesions of the skin. The claims folder should be forwarded to the examiner for review, and the examiner should be directed to elicit a complete history from the Veteran, the details of which should be included in the examination report. Following examination, interview of the Veteran, and review of the claims file, the examiner should identify all currently present skin disability characterized by lumps and lesions, and note the anatomical areas affected. The examiner should then provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that any such disability is related to any disease or injury in service, to include documented exposure to ionizing radiation. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. A discussion of the reasons behind any opinions expressed should be included in the examination report, to include reference to pertinent evidence where appropriate. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 3. Upon completion of the examination ordered above, review the examination report to ensure that it addresses the questions presented. Any inadequacies should be addressed prior to recertification to the Board. 4. Issue the appellant a statement of the case on the issues of entitlement to service connection loss of concentration and of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for sterility pursuant to 38 C.F.R. § 19.26 (2012). 5. Then, readjudicate the claim on appeal, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. 2012). ______________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs