Citation Nr: 1318925 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 11-26 021 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for bilateral shoulder disability. 2. Whether new and material evidence has been received to reopen a claim for service connection for a back disability. 3. Whether new and material evidence has been received to reopen a claim for service connection for a skin disability, to include eczema and ichthyosis. 4. Entitlement to service connection for a skin disability, to include eczema and ichthyosis. 5. Entitlement to service connection for bilateral shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran and R.H ATTORNEY FOR THE BOARD H.J. Baucom, Associate Counsel INTRODUCTION The Veteran had active service from April 1944 to April 1945. This matter comes to the Board of Veterans' Appeals (Board) from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio which reopened and denied service connection for eczema, chronic, analogy for ichthyosis, arms and legs, and denied reopening the claim for service connection for a back and bilateral shoulder injury. Irrespective of the RO's action, the Board must decide whether the Veteran has submitted new and material evidence to reopen the claims for service connection for a skin disability and a shoulder and back disability. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In April 2013, a Board hearing was held at the RO in Indianapolis, Indiana, before the undersigned; the transcript is of record. The issues have been recharacterized to comport with the evidence of record and the Veteran's contentions. The Veteran's virtual VA file has been reviewed. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In a July 1946 rating decision, the RO denied service connection for a bilateral shoulder and back disability. The Veteran did not appeal the decision. No new evidence was received within one year of the decision and no additional relevant service treatment records were received. The decision is now final. 2. Evidence submitted since the RO's July 1946 rating decision relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for a bilateral shoulder disability. 3. Evidence submitted since the RO's July 1946 rating decision does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim for service connection for a back disability. 4. In an August 1947 rating decision, the RO severed service connection for a skin disability. The Veteran did not appeal the decision. No new evidence was received within one year of the decision and no additional relevant service treatment records were received. The decision is now final. 5. Evidence submitted since the RO's August 1947 rating decision relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for a skin disability. 6. A skin disability, to include eczema and ichthyosis, is related to service by way of aggravation. 7. A bilateral shoulder disability did not incur in service or is related to any event or injury in service. CONCLUSIONS OF LAW 1. No evidence was received within one year of the July 1946 rating decision and no additional relevant service records have been received. Therefore, the prior decision is final. 38 C.F.R. § 3.156, 3.160(d) (2012). 2. The criteria for reopening the claim for service connection for a bilateral shoulder disability are met. 38 U.S.C.A. §§ 5108 , 7104(b) (West 2002); 38 C.F.R. § 3.156 (2012). 3. The criteria for reopening the claim for service connection for a back disability are not met. 38 U.S.C.A. §§ 5108 , 7104(b) (West 2002); 38 C.F.R. § 3.156 (2012). 4. No evidence was received within one year of the August 1947 rating decision and no additional relevant service records have been received. Therefore, the prior decision is final. 38 C.F.R. § 3.156, 3.160(d) (2012). 5. The criteria for reopening the claim for service connection for a skin disability are not met. 38 U.S.C.A. §§ 5108 , 7104(b) (West 2002); 38 C.F.R. § 3.156 (2012). 6. A skin disability incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 7. A bilateral shoulder disability did not incur in service. 38 U.S.C.A. §§ 5108, 7104(b) (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. Id. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. The regulations define "new" evidence as existing evidence not previously submitted to agency decisionmakers. "Material" evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). Bilateral shoulder disability A July 1946 rating decision denied service connection for a bilateral shoulder disability and a back disability. The rating decision was not appealed, no additional evidence was received within one year of the rating decision, and no relevant service treatment records were received within one year of the rating decision. The July 1946 rating decision is final. Evidence received since the July 1946 rating decision includes VA treatment records demonstrating a current bilateral shoulder disability, degeneration of the shoulder based on x-rays, and an undated letter from the Veteran's treating physician for (what the Veteran contends) is the last 35 years, Dr. TA, who reported that the Veteran fell on duty in 1944 and hurt his shoulders and collarbone for which the Veteran still experiences shoulder pain. This evidence is determined to be new and material as it was not of record at the time of the last rating decision and it could reasonably substantiate the claim as it suggests that the Veteran's bilateral shoulder disability may be related to service. The information received since the last final rating decision constitutes new and material evidence within the meaning of 38 C.F.R. § 3.156(a); and reopening the claim for a bilateral shoulder disability is warranted. 38 U.S.C.A. § 5108. Back disability The July 1946 rating decision denied service connection for a back disability as there was no evidence of a back condition in service Evidence received since the July 1946 rating decision includes private treatment records. There were two reports of medical treatment for back pain were related to a falling incident in May 2004 and a lifting incident in April 2005. A December 1994 x-ray showed degenerative changes of the lumbar spine. Despite treatment for back complaints there is no suggestion that these post service back complaints, over 45 years after service, were in any way connected to any incident or injury or disease in service. The Veteran did not provide any testimony as to his back claim. The information received after July 1946 would not reasonably substantiate the claim, and is determined not to be new and material evidence. The information received since the last final rating decision does not constitute new and material evidence within the meaning of 38 C.F.R. § 3.156(a); and reopening the claim for a back disability is not warranted. 38 U.S.C.A. § 5108. The evidence, while, new, is not material. Even under the low standard of Shade none of the new evidence is material. Even the Veteran's own statements are, at best, reiteration of his prior statements regarding this claim in the 1940's (the Veteran choose not to testify regarding this issue at his hearing before the undersigned in April 2013 [page 13 of transcript]). Skin disability An August 1947 rating decision severed service connection for a skin disability. The Veteran did not appeal the decision. No new evidence was received within one year of the decision and no additional relevant service treatment records were received. The decision is now final. Evidence received since the July 1946 rating decision includes the Veteran's testimony that his skin was normal upon entry to service but it became so severe during service that he was discharged because of it. The Veteran is competent to report as to the severity of his skin condition as it is observable to him as a lay person and his testimony is presumed to be credible for the purpose of determining whether newly submitted evidence has been received. Layno v. Brown, 6 Vet. App. 465, 469 (1994), Justus v. Principi, 3 Vet. App. 510 (1992). This evidence is new and material as it was not of record at the time of the last rating decision and it could reasonably substantiate the claim, as it demonstrates the incurrence or aggravation of a skin disability in service. The information received since the last final rating decision constitutes new and material evidence within the meaning of 38 C.F.R. § 3.156(a); and reopening the claim for a skin disability is warranted. 38 U.S.C.A. § 5108. Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The nexus between service and the current disability can be satisfied by competent evidence of continuity of symptomatology and evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Skin disability The Veteran's skin was normal upon entry to service and no defects or abnormalities were noted in the entrance examination. When no pre-existing injury or disease is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's injury or disease was both pre-existing and not aggravated by service. 38 U.S.C.A. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an onerous evidentiary standard, requiring that the result be undebatable. Cotant v. West, 17 Vet. App. 116, 131 (2003). In service the Veteran reported a history of dry skin prior to entering service and also reported that his skin was worse in the winter and in his current climate. During service the Veteran was diagnosed with ichthyosis and eczema, and he was ultimately discharged due to this skin condition which was very pronounced on the arms and legs. Although the Veteran reported experiencing dry skin prior to service, he did not report being diagnosed with the same skin condition prior to service as he was in service. It is debatable whether the Veteran's skin condition prior to service was the same as the skin condition he had in service. Even assuming that the Veteran's skin condition did exist prior to service, it was clearly aggravated during service as upon entry it was so minor that it was unnoticed upon physical examination, and during service it became so pronounced over the legs and arms that he had to be removed from service early because of it. In February 2012 a VA examination was conducted. The examiner listed the Veteran's diagnosed skin conditions as: eczema, purities scroti, exfoliative dermatitis, ichthyosis - diagnosed in 1944, and tinea. The examiner reported the Veteran's medical history of symptoms consistent with eczema and ichthyosis prior to service, and that while on active duty his conditions worsened as a result of exposure to elements. The examiner also noted that he was discharged due to severe ichthyosis and this condition persisted with intermittent flares of increased scaling, cracking of skin and pruritus. Physical examination of the Veteran diagnosed eczema. Despite the medical history, the examiner concluded that the claimed condition was less likely than not incurred or caused by service. The examiner's negative opinion focused on whether there was an association between ichthyosis in service and intermittent dermatophytosis (ringworm) currently. However, the Veteran's claimed condition is not dermatophytosis. He is claiming eczema and ichthyosis. The Veteran has not been diagnosed with dermatophytosis, either by history or upon physical examination. At the examination the Veteran was diagnosed with eczema. The examiner stated in her rationale that the Veteran had eczema and ichthyosis prior to enlistment which was aggravated in service and that the Veteran was discharged due to his symptoms. The examiner's rationale supports a finding of aggravation of ichthyosis and eczema in service. Furthermore, the Veteran testified that he has continued to have the same skin condition since service. The Veteran is competent to testify as to symptoms that he can experience and observe, such as a skin condition, and the Board finds his testimony to be both competent and credible. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran's long time treating physician, Dr. TA, reported that the Veteran was discharged from the Navy due to his skin disorder and that this condition has gotten gradually worse over the years and continues to be an ongoing problem. The competent evidence of record overwhelmingly supports a finding that the Veteran's skin disability was aggravated during service. See 38 U.S.C.A. § 1111; See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claims for service connection based on aggravation are converted into claims for service connection based on service incurrence). In this case, as noted by the undersigned at hearing, no defects were noted at induction, so the presumption of aggravation (even if we assume that the Veteran had some form of skin problem prior to service) applies (transcript at page 11). The presumption of soundness based on aggravation is not rebutted and service connection for a skin disability, to include ichthyosis and eczema, is warranted. Bilateral shoulder disability The Veteran reported that there were two incidents of shoulder problems in service, the first when he fell on the Navy Pier in 1944 and hurt his shoulders but received no treatment, and the second when he was treated for strained shoulders after moving heavy foot lockers. The Veteran is competent to report symptomatology that he experiences through his five senses, such as shoulder pain, and is competent to report incidents that occur, such as slipping and falling. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran's treating physician, Dr. TA, also reported the Veteran's report that he fell in service in 1944 hurting his shoulders and collarbone. The Board finds his reports that he slip and fell on a pier and that he had shoulder pain in service to be competent and credible. The Veteran's incidents of shoulder pain in service were acute and transitory. The Veteran's in service medical history contains no complaints of shoulder pain or problems despite seeking treatment for other ailments, such as his skin condition and nosebleeds. The medical survey conducted upon exit in March 1945 similarly did not contain any reference to shoulder pain or problems. There is no evidence of a chronic shoulder disability in service. More importantly, post-service, a May 1946 physical examination recorded the Veteran's complaints of right shoulder pain, however following that report there are no reports of shoulder pain for decades post service. Dr. TA reported that the Veteran has had limitation and decreased range of motion of his shoulders since service, however he did not begin treating the Veteran until roughly (at best) 30 years after the Veteran got out of service. In this regard, the Board must find that the medical opinion of Dr. TA is of limited probative value. Dr. TA refers to "well grounded claim physician certification", a standard which has not been used by the VA in many years, and provides no rational of his view that the shoulder has been an ongoing problem since 1945 (more than 60 years). There is no evidence of, nor has the Veteran reported any treatment for any bilateral shoulder disability during that time period since May 1946. Evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this regard, this is not simply a case of a Veteran who does have many medical records. The Veteran has undergone treatment for several medical conditions over the years without reference to a chronic shoulder disability. VA treatment records show degenerative changes in the right shoulder based upon x-ray reports in May 2010. Evidence of a shoulder disability simply establishes a current disability, and does not establish service connection. Importantly, in his own medical history to VA (see March 2011 and March 2007 annual visits), as described by the Veteran himself, the Veteran does not cite to a 60 year history of bilateral shoulder pain. At some points the Veteran does not cite joint pain specifically (see March 2007 annual examination). While general joint pain in the right shoulder is sometimes sporadically cited, a chronic shoulder problem that has existed for 60 is never indicated. At the Veteran's hearing, the Veteran specifically did not testify regarding this issue. In this regard, the Board must note that the undersigned found the Veteran to be highly credible and highly believable at his hearing, the basis for the grant of the skin disability claim. His silence regarding this issue does not support the contention that he has had this problem since World War II1. While the Board has reviewed the private medical opinion, the Board finds that the service medical records and post-service medical records provide significant evidence against the Veteran's claim, outweighing the opinion of the Veteran and the medical provider. The preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection for a bilateral shoulder disability is not warranted. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Notice and Assistance VA has a 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). An October 2008 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The notification also informed the Veteran of the evidence and information necessary to reopen the claim for service connection, including the basis on which the prior claim was denied in compliance with Kent v. Nicholson, 20 Vet. App. 1 (2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. A VA examination of the back was not conducted as one was not required. In the absence of new and material evidence, VA is not required to provide an examination to a claimant attempting to reopen a previously disallowed claim. Paralyzed Veterans of Am. v. Sec 'y of Veterans Affairs, 345 F.3d 1334, 1342-43 (Fed. Cir. 2003). 38 U.S.C.A. §§ 5103A(f), 5108; 38 C.F.R. § 3.159(c)(4)(iii). Regarding the bilateral shoulder disability, VA must provide an examination when there is (A) competent evidence of a current disability that (B) may be associated with service, but (C) there is insufficient medical evidence to make a decision on the claim. 38 U.S.C.A. § 5103A(d). Recently, the Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted under this statute. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. The Veteran was not examined by VA in conjunction with the claim of service connection for a bilateral shoulder disability; however, no such examination is necessary in this case because there is sufficient medical evidence to make a decision on the claim, at this time under part (C). While the Board has reviewed the private medical opinion, the Board finds that the best evidence in this case, based on a review of the service and post service evidence of record, and after a hearing with the Veteran, is the preponderance of the evidence is against this claim. The post-service medical records provide particularly negative evidence against the contention that the Veteran's has had a bilateral shoulder problem since World War II. The Board has carefully considered a remand of the case for a VA medical opinion, however, in light of the Veteran's age, the medical evidence or record, the detailed medical records (which provide evidence, overall, against this claim) the Board finds that such a remand would not provide a basis to grant this claim and would only delay the full adjudication of this World War II Veteran's case. The best evidence in case does not indicate that the disability "may be" associated with service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). A VA examination of the skin was conducted in February 2012. The examiner's opinion did not fully address the claimed condition, however in light of the favorable outcome herein, the Veteran is not prejudiced by the inadequacies of the examination. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). ORDER The petition to reopen a claim for service connection for a bilateral shoulder disability is granted. The petition to reopen a claim for service connection for a back disability is denied. The petition to reopen a claim for service connection for a skin disability, to include eczema and ichthyosis is granted. Service connection for a skin disability, to include ichthyosis and eczema, is granted. Service connection for a bilateral shoulder disability is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs