Citation Nr: 1335671 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 11-28 896 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Whether new and material evidence has been submitted to reopen a service connection claim for a fungal infection. 2. Entitlement to service connection for a fungal infection. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from January 1942 to September 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Boise, Idaho. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. Please note 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). The issue of service connection for a fungal infection is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. In a September 2006 rating decision, the RO denied service connection for a fungal infection of the feet. The Veteran did not perfect a timely appeal to this decision. 2. Evidence received since the September 2006 rating decision is new and material regarding the issue of service connection for a fungal infection of the feet, as it contains evidence not previously considered that establishes a current diagnosis of the claimed disorder. CONCLUSIONS OF LAW 1. The September 2006 rating decision that denied service connection for a fungal infection of the feet is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2006). 2. The criteria for reopening the Veteran's previously denied claim of service connection for a fungal infection have been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013). A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. In Kent v. Nicholson, 20 Vet. App. 1, 11-12 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, in the context of claims to reopen, VCAA notice (1) must notify a claimant of the evidence and information that is necessary to reopen the claim and (2) must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying benefit sought by the claimant. With respect to the Veteran's claim decided herein, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions under Kent. Moreover, there can be no prejudice to the Veteran in proceeding with the current action because of the favorable nature of the Board's decision to reopen service connection for a fungal infection. Reopening of Service Connection for a Fungal Infection In the current claim on appeal, the Veteran seeks to reopen service connection for a fungal infection. In a September 2006 rating decision, the RO denied service connection for a fungal infection of the feet. The RO found that the evidence of record did not establish a current diagnosis of the claimed disorder. The Veteran did not perfect an appeal of this determination, or submit any new and material evidence prior to the expiration of the appeal period, and his claim therefore became final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156(b), 20.1103 (2013). Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c), (d)(3); 38 C.F.R. § 20.1103. An 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, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g, 8 Vet. App. 1 (1995)). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. Further analysis, beyond the evaluation of whether the evidence submitted in the effort to reopen is new and material, is neither required nor permitted. Id. at 1384. Any finding entered when new and material evidence has not been submitted "is a legal nullity." Butler v. Brown, 9 Vet. App. 167, 171 (1996) (applying an identical analysis to claims previously and finally denied, whether by the Board or the RO). See Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). In the September 2006 rating decision, the RO determined that the evidence then of record did not establish a current diagnosis of a fungal infection of either foot. The evidence considered at that time included service treatment records as well as post-service VA and private treatment records. Since the prior denial of the claim in September 2006, recent evidentiary submissions have included the Veteran's own contentions, as well as additional VA medical treatment records. Specifically, the Veteran was afforded a September 2008 VA medical examination at which time a fungal infection of the feet was diagnosed. This disorder chiefly involved both heels, with lesser involvement of the plantar surfaces of the feet. Onychomycosis was present on the toenails bilaterally. Having reviewed the recent evidentiary submissions, the Board finds that new and material evidence to reopen service connection for a fungal infection has been received. The September 2008 diagnosis of a fungal infection of the feet is new, in that it was not of record at the time of the prior final denial. This record is also not cumulative and redundant of evidence already of record, and is material, as it provides competent evidence of a current diagnosis, the lack of evidence of which was the basis of the prior final denial. This evidence is material because it relates to the unestablished fact that is necessary to substantiate the claim. Specifically, this evidence addresses the basis for the prior denial by establishing a current diagnosis of a fungal infection of the feet. See 38 C.F.R. § 3.307(a)(6)(iii). The Court has held that 38 C.F.R. § 3.156(a) "must be read as creating a low threshold" which "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim." Shade, 24 Vet. App. at 117-18 (2010). Given this standard, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156, warranting reopening of service connection for a fungal infection. At the time of the 2006 denial, the record lacked a current diagnosis of the claimed disability. The more VA medical evidence addresses this prior deficit in the record. For this reason, the Board finds that the additional evidence received since the September 2006 decision is new and material to reopen service connection for a fungal infection. 38 C.F.R. § 3.156(a). In considering the Veteran's application to reopen, the Board is aware that the September 2006 rating decision denied only service connection for a fungus of the feet alone, without reference to the remainder of the body. In his September 2009 application to reopen his claim, however, the Veteran stated the claimed fungal infection involved his feet, face, scalp, and hands. As the Veteran's claim is being reopened for consideration on the merits, however, the Board need not consider whether the allegations of fungal infections of the face, hands, and scalp constitute separate claims. ORDER The Veteran having submitted new and material evidence, his claim for service connection for a fungal infection is reopened. REMAND The Veteran seeks service connection for a fungal infection of the feet, hands, scalp, and face. His service treatment records are negative for any diagnosis of or treatment for a fungal infection. The record indicates that the Veteran was aboard the USS Wasp that was destroyed in battle in September 1942. In a September 2013 statement, the Veteran indicated that after the ship sank, he was picked up by a destroyer and was then treated for a fungal condition. The Veteran is competent to testify regarding such observable symptomatology as a skin disorder. He has stated both that he incurred a fungal infection during service, and that this disorder has persisted "off and on" since service separation. In light of the Veteran's combat service, the Board finds that his account of treatment in service is credible. VA medical treatment records confirm a current diagnosis of a fungal infection of the skin. The Board finds this evidence sufficient to trigger VA's obligation to afford the claimant a VA medical examination or opinion. 38 U.S.C.A. § 5103A(d); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Provide the Veteran with an appropriate dermatological examination to determine the etiology of any current skin disorders. The claims folder, including a copy of this remand, must be made available to the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner must first elicit from the Veteran a detailed history of any alleged in-service fungal infection or related skin disorder and the symptomatology thereafter, both during and after service. For purposes of the opinion, the examiner must accept as true the Veteran's report of treatment for a fungal condition in service. The examiner must provide an opinion, in light of the examination findings and the service and post-service evidence of record whether it is more likely than not (probability greater than 50 percent), at least as likely as not ( probability of 50 percent), or less likely than not (probability less than 50 percent) that any current fungal disorder of the skin had its onset during active service or is otherwise related to service. The rationale for all opinions expressed must be provided. 2. After undertaking any additional development deemed appropriate, and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. 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. 2013). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs