Citation Nr: 1329373 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 10-06 721 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for multiple sclerosis. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for acne and acne scarring. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1968 to July 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that concluded new and material evidence had not been received to reopen claims of service connection for multiple sclerosis and acne and acne scarring. A June 2011 supplemental statement of the case reopened the claim of service connection for multiple sclerosis, addressing the matter de novo. However, whether or not new and material evidence has been received to reopen a claim is a jurisdictional question that the Board must address. If the Board finds that such evidence was not received, that is where its analysis must end. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). FINDINGS OF FACT 1. An unappealed October 2000 Board decision denied the Veteran's claim of service connection for multiple sclerosis, based essentially on findings that it was not shown in service or for many years after service, and was not related to his service; an unappealed August 2005 rating decision declined to reopen the claim. 2. The evidence received since the August 2005 rating decision does not tend to show the Veteran's multiple sclerosis is related to service; does not relate to an unestablished fact necessary to substantiate the claim of service connection for multiple sclerosis; and does not raise a reasonable possibility of substantiating the claim. 3. An unappealed November 1973 rating decision (which reconsidered the Veteran's claim following the submission of additional evidence after a September 1973 rating decision) denied service connection for acne and acne scarring, essentially on the basis that such preexisted service and did not increase in severity in service. 4. The evidence received since the September 1973 rating decision does not tend to show the Veteran has acne scarring that is related to service (i.e., did not pre-exist service, or did increase in severity therein); does not relate to the unestablished facts necessary to substantiate the claim of service connection for acne scarring; and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. New and material evidence has not been received, and the claim of service connection for multiple sclerosis may not be reopened. 38 U.S.C.A. §§ 5108, 7104, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 2. New and material evidence has not been received, and the claim of service connection for acne and acne scarring may not be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims held that in a claim to reopen a previously finally denied claim, VCAA notice must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits. The appellant was advised of VA's duties to notify and assist in the development of the claims prior to the initial adjudication of his claims. Letters dated October 2007 and August 2008 provided notice in accordance with Kent, and also explained the evidence VA was responsible for providing and the evidence he was responsible for providing. These letters also informed the appellant of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. The Veteran's service treatment records and pertinent post- service treatment records have been secured. The duty to assist by arranging for a VA examination or obtaining a medical opinion does not attach until a previously denied claim is reopened. 38 C.F.R. § 3.159 (c)(4)(iii). He has not identified any pertinet evidence that remains outstanding. VA's duty to assist is also met. Factual background The Board has reviewed all of the evidence in the appellant's claims file and in Virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that each item of evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence of record shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Historically, service connection for acne was denied by an unappealed rating decision in September 1973; the Veteran was notified of this determination by a letter dated the following month. Service connection for multiple sclerosis has been denied on a number of occasions, including by a Board decision in October 2000. An unappealed August 2005 rating decision denied the Veteran's most reason attempt to reopen the claim, finding that new and material evidence had not been received. The Veteran was notified of this decision and of his right to appeal by a letter dated in August 2005. Multiple sclerosis The evidence of record at the time of the August 2005 rating action included the Veteran's service treatment records, private and VA medical records, the opinion of a VA physician, various medical articles, and the Veteran's testimony at a hearing. The Veteran's service treatment records show that in April 1972 he was seen for mono caught in Thailand (and he was to see a medical officer for follow-up). A test for mono the next month was negative. In a May 1972 report of medical history, the Veteran reported dizziness or fainting spells. The physician's summary indicated that all positive answers had been evaluated by the medical examiner and findings were considered not disqualifying. On June 1072 service separation examination, neurological clinical evaluation was normal. Private medical records show the Veteran reported numbness of his feet in April 1991. The assessment was left foot bunion. In May 1994, he related a 10-day history of progressive numbness, first involving the feet and extending to the knees. The impression was sensory peripheral neuropathy. The examiner indicated that demyelinating disease, such as multiple sclerosis should be ruled out. When seen by a private physician in October 1996, the Veteran reported the onset of his symptoms sometime between 1992 and 1994 with numbness of the legs spreading up the body towards the groin. In March 1996, the Veteran was admitted to a private hospital for a possible acute attack of multiple sclerosis. It was noted he had an attack two years earlier with numbness of the left foot. He was seen by a private physician at that time and magnetic resonance imaging and a spinal tap then were negative. He recovered in two months and later, after a few months, had left sided weakness with some visual symptoms that resolved in two weeks. The diagnosis was multiple sclerosis. In a statement dated in January 2000, a private physician, C.V. Timm, M.D., concluded, after reviewing medical records and the Veteran's history, that it was at least as likely as not that the Veteran's symptoms of multiple sclerosis began in service. He stated that the weakness in his arms and legs, dizzy spells and blurry vision are some examples of the symptoms that were shown. The physician stated that while there is no known cause for multiple sclerosis, the Veteran's exposure to hazardous chemicals might have been a possible contributing factor to the development of the disease. At a hearing before the Board in January 2000, the Veteran testified that his symptoms during service included fatigue, numbness of the legs, and loss of balance. He asserted he fell from a ladder due to loss of balance. He also stated he was hospitalized for symptoms that included instability, weakness in the arms and fatigue. He claimed he had mononucleosis. He maintained that his symptoms when multiple sclerosis was diagnosed were identical to those he experienced in service. In May 2000, a VA physician who reviewed the Veteran's chart opined that she did not find it likely that any event in service caused multiple sclerosis. While there was a report of a negative "mono spot" test in May 1972, she found no documentation of prior treatment for mononucleosis. She observed there was no documentation of symptoms consistent with multiple sclerosis until 1994. Thus, the physician could not say it was likely that the Veteran's symptoms of multiple sclerosis began earlier. She also noted that the article submitted by the Veteran was not from a peer- reviewed journal. She asserted there have been no peer- reviewed publications supporting the hypothetical relationship of either the Epstein-Barr virus or any other specific pathogen to the development of multiple sclerosis. She indicated her opinion was based on a review of neurological textbooks and current neurological literature from peer-reviewed journals. An October 2000 Board decision denied the Veteran's appeal seeking service connection for multiple sclerosis based on findings it was initially manifested many years following service, and was unrelated to service. The Veteran's subsequent attempts to reopen his claim were denied by the RO in May 2004 and August 2005 rating decisions. He did not appeal the Board's October 2000 decision to the Court, or the RO determinations to the Board (or submit new and material evidence in the year following). These decisions are final. Evidence received subsequent to the August 2005 rating action includes recent VA treatment records and various statements of the Veteran. When seen in a VA outpatient treatment clinic in August 2004, the Veteran stated his multiple sclerosis began in 1972 with the onset of dizziness. He asserted he was hospitalized at that time with complaints of weakness that resolved. In various statements, the Veteran reports that when multiple sclerosis was diagnosed, his symptoms included numbness and fatigue. He claims he had similar symptoms in service. Acne and acne scarring The evidence of record at the time of the September 1973 rating action consisted of the Veteran's service treatment records. In a report of medical history in June 1968, the Veteran denied skin disease. While the skin was evaluated as normal on the entrance examination in June 1968, facial acne was noted. The service treatment records show that the Veteran was hospitalized in June 1970 for an elective full face dermabrasion for correction of facial acne scars. The diagnosis was acne scars of the face. It was noted the condition had existed prior to service. The Veteran was referred to the dermatology clinic in May 1971 with a long history of facial acne scars. It was further noted that he had experienced a recurrence of his acne. When seen in the dermatology clinic that month, it was noted that he had pitting, post-acne scarring. Later in May 1971, he was hospitalized, and it was noted that he had had a Grade II papulopustular acne since age 17, and it had resulted in pitting scarring, most notable over the malar regions. A dermabrasion was performed. A July 1972 report of medical history notes the Veteran's history of skin disease. Under the physician's summary, it was stated that all positive answers had been evaluated by the medical examiner and were considered to be not disqualifying. On the July 1972 discharge examination, a clinical evaluation of the skin was normal. The September 1973 rating decision denied the Veteran's claim of service connection for acne on the basis that it preexisted, and was not aggravated in, service. The RO found that dermabrasions in service represented corrective or ameliorative procedures. VA outpatient treatment records received subsequent to the September 1973 rating decision show the Veteran was seen in July 1973, when it was noted he had scar tissue on both cheeks due to dermatitis. He was referred to the dermatology clinic with a notation he wanted dermabrasion for acne scars. In August 1973, it was noted that he was being seen for acne of both knees, and that the acne was not severe. A November 1973 rating decision considered the VA outpatient treatment records, and determined that service connection was not warranted. The Veteran did not appeal the November 1973 rating decision (or submit new and material evidence in the year following). Evidence received since the November 1973 decision consists of VA outpatient treatment records and the Veteran's statements. The Veteran was seen for a skin rash on the knee in May 1992. Psoriasis was noted. He was seen for dry skin on the hands in October 2000. A rash was not noted when he was seen for unrelated complaints in February 2008. Legal Criteria and Analysis 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. 38 U.S.C.A. §§ 7104, 7105. 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. 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). 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, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to 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 Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of: (1) a current disability (for which service connection is sought); (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a nexus between the claimed disability and the disease or injury in service. See Shedden v, Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). Where a veteran served 90 days or more during a period of war, and multiple sclerosis becomes manifest to a degree of 10 percent or more within seven years from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The medical records received in conjunction with the Veteran's attempt to reopen his claim confirm he has multiple sclerosis. This evidence is redundant as it merely provides information that known at the time of the August 2005 determination. It was not then in dispute that the Veteran has multiple sclerosis. The unestablished fact necessary to substantiate the Veteran's claim of service connection for multiple sclerosis was the matter of a nexus between such disability and service. For newly submitted evidence to be material in such circumstances, it would have to tend to show that the Veteran's multiple sclerosis was manifested in service or within seven years following his discharge from service (in light of the presumptions afforded him under 38 U.S.C.A. § 1112). While the recently received VA medical records are new, inasmuch as they were not previously of record, they are not material. The records merely establish the Veteran has multiple sclerosis, and they do not address the etiology of his disability. No additional evidence received since the last prior final decision in this matter bears on the matter of a nexus between the Veteran's multiple sclerosis and his service. The current treatment records contain no information bearing on his matter. The additional evidence does not pertain to an unestablished fact necessary to substantiate the claim of service connection for multiple sclerosis. Accordingly, the additional evidence does not raise a reasonable probability of substantiating the claim and is not material. Therefore, the claim may not be reopened. Regarding acne, contrary to the Veteran's assertions, acne was noted on his service entrance examination. Thus, the presumption of soundness on entry in service does not apply. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Since there is no presumption of soundness in this case, the critical question is whether the additional evidence tends to establish that the Veteran's preexisting acne chronically increased in severity during service. To support a finding of aggravation, the evidence must establish that the underlying disability underwent chronic increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). While the recently received VA medical records are new, as they were not previously of record, they are not material. The records merely establish the Veteran continues to have skin problems many years after service; they do not address whether acne increased in severity in service. The current treatment records do not contain any information bearing on his matter. No additional evidence received since the November 1973 rating decision pertains to the unestablished fact necessary to substantiate the claim of service connection for acne. Hence, the additional evidence does not raise a reasonable possibility of substantiating the claim, and it is not material. Accordingly, the claim of service connection for acne may not be reopened. ORDER The appeal to reopen a claim of service connection for multiple sclerosis is denied. The appeal to reopen a claim of service connection for acne and acne scarring is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs