Citation Nr: 1338679 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 10-40 938 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Whether there is new and material evidence to reopen a claim of entitlement to service connection for psoriasis and, if so, whether service connection is warranted. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Appellant-Veteran ATTORNEY FOR THE BOARD A. Dean, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1989 to March 1993. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). As support of his claim, the Veteran testified at a videoconference hearing in November 2011 before the undersigned Veterans Law Judge (VLJ) of the Board. The Board is reopening the claim because there is the required new and material evidence. But rather than immediately readjudicating this claim on its underlying merits, the Board instead is remanding it to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. FINDINGS OF FACT 1. A November 1994 rating decision denied service connection for psoriasis. 2. The Veteran was properly notified of that November 1994 rating decision denying this claim and of his procedural and appellate rights in a November 1994 letter, but he did not appeal. 3. Nevertheless, additional evidence received since that November 1994 rating decision is not cumulative or redundant of the evidence considered in that decision and raises a reasonable possibility of substantiating his claim of entitlement to service connection for psoriasis. CONCLUSIONS OF LAW 1. The November 1994 rating decision denying service connection for psoriasis is final and binding. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103 (2013). 2. But there is new and material evidence since that decision to reopen this claim. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating claims 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) (2013). Here, since the Board is reopening this claim on the basis of new and material evidence, there is no need to discuss whether the Veteran has received sufficient notice insofar as the specific reasons for the prior November 1994 denial of this claim because, even if for the sake of argument he has not, this ultimately is inconsequential and, therefore, at most nonprejudicial, i.e., harmless error since the Board is reopening this claim, regardless. 38 C.F.R. § 20.1102 (2013). See also Kent v. Nicholson, 20 Vet. App. 1 (2006), indicating this VCAA notice, if necessary, would have needed to apprise him of the specific reasons his claim was previously denied so he would have the opportunity to respond by providing evidence that would overcome the prior deficiencies. See also VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006) (wherein VA's Office of General Counsel issued informal guidance interpreting Kent as requiring the notice to specifically identify the kind of evidence that would overcome the prior deficiency rather than simply stating the evidence must relate to the stated basis of the prior denial). Moreover, since, after reopening this claim, the Board is remanding it for further development, rather than immediately readjudicating it on its underlying merits, there is no need at this juncture to discuss whether there has been compliance with the remaining duty-to-notify-and-assist obligations. This is better determined once the additional development of this claim has been completed on remand. II. Legal Criteria Generally, a claim that 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 that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Although the RO reopened the Veteran's claim, the Board must determine independently whether new and material evidence has been presented to reopen the claim as a jurisdictional matter, irrespective of the decision of the RO. See Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). New evidence means existing 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 and binding denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The credibility of the evidence in question must be presumed, albeit just for the limited purpose of determining whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). This presumption no longer applies when making a determination as to the ultimate credibility and weight of the evidence as it relates to the merits of the claim. Essentially, the presumption of credibility "dissolves" once the claim is reopened and decided on the merits. See also Duran v. Brown, 7 Vet. App. 216 (1994) (indicating "Justus does not require the Secretary [of VA] to consider the patently incredible to be credible" or blindly accept as credible assertions that are beyond the competence of the person making them). Also, 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 (2000). But in Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court explained that 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. Id., at 118. Thus, pursuant to Shade, 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. In other words, the Court indicated there are two, not three, requirements for reopening a claim, those being that the evidence is new and material, not instead that it is new, material, and raises a reasonable possibility of substantiating the claim. The Court pointed out that the post-VCAA version of § 3.156(a) establishes a "low threshold" for reopening a claim, one that does not require that a claimant submit a medical opinion to reopen a claim. Rather, if there is newly submitted evidence of a current disability that in connection with the prior evidence raises a reasonable possibility of substantiating the claim, and the element of a nexus could be established by providing a VA examination, the claim may be reopened. This then triggers VA's duty to assist in providing the claimant with a VA examination. In determining whether new and material evidence is required, the focus of the Board's analysis must be on whether the evidence presented truly amounts to a new claim based upon distinctly diagnosed diseases or injuries or whether the evidence substantiates an element of a previously adjudicated matter. See Velez v. Shinseki, 23 Vet. App. 199 (2009). New arguments based on the same evidence of record at the time of the previous final denial do not constitute the presentation of new and material evidence. See Untalan v. Nicholson, 20 Vet. App. 467 (2006). III. Analysis The Veteran originally filed his claim of entitlement to service connection for psoriasis in June 1994. In a November 1994 rating decision, the RO denied service connection on the basis that the condition had existed prior to his service and since there was no evidence that it had been aggravated by his service, meaning chronically worsened beyond its natural progression. Although properly notified of that decision later in November 1994, he did not appeal it. At the time of that November 1994 denial, the record before the RO, which was the adjudicating agency of original jurisdiction (AOJ), consisted solely of the Veteran's service treatment records (STRs), which showed evidence of treatment for psoriasis during his active duty service. There was not, however, according to the RO, suggestion of a worsening of this condition during or as a result of his service. The pertinent evidence that has been received in the several years since the November 1994 rating decision includes VA treatment records from February 2009 to January 2011, which include a notation by a rheumatologist that there is a possibility the Veteran's service in the Persian Gulf War could have aggravated his psoriasis, and statements from the Veteran from April 2010 and September 2010, stating his psoriasis got progressively worse as his service became more stressful. He reiterated this assertion during his November 2011 videoconference hearing before the Board. Consequently, unlike when the RO initially considered and denied this claim in November 1994, there are now several records referring to psoriasis, including, most notably, accounting for his ongoing complaints of its worsening. Thus, these VA treatments records and his lay statements and hearing testimony are new and material inasmuch as they address at least one of the specified bases for previously denying the claim. The evidence is not cumulative or redundant of the evidence previously of record. Moreover, it is sufficient to raise a reasonable possibility of substantiating the claim. Accordingly, reopening of the claim of entitlement to service connection for psoriasis is in order. ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for psoriasis; the appeal is granted to this extent only. REMAND The Board finds that additional development is required before the Veteran's claim may be readjudicated on its underlying merits. Although the Board sincerely regrets the additional delay in deciding the claim that will result from this remand, it is necessary to ensure there is a complete record upon which to decide this claim so he is afforded every possible consideration. His STRs show he received treatment for psoriasis many times while in service. In June 1990, the treatment was for psoriasis on his scalp only. But March 1991, April 1991, and March 1992 notations show treatment for psoriasis on his head and knees. Later in March 1992, he also complained that the psoriasis additionally affected his penis, and in November 1992 it appeared to also affect his elbows. During his hearing, he testified under oath that when he entered the military the psoriasis only affected his head, but that it began affecting several more areas of his body once in service, also noting that after his separation from service it affected all of his extremities and that it currently affects approximately 70 percent of his entire body. He believes the stress of military life, especially during combat situations, contributed to his psoriasis getting worse, so being aggravated. He has received VA treatment for his psoriasis since at least February 2009. As stated earlier, an April 2010 treatment notation from a VA rheumatologist mentioned that there is a possibility that the Veteran's time serving in the Persian Gulf War could have aggravated his condition, but the rheumatologist could neither prove nor disprove this possibility. The rheumatologist also however pointed out that times of stress aggravate autoimmune conditions like psoriasis. In June 2010 the Veteran was afforded a VA compensation examination. The examiner stated that she could not resolve the issue of whether pre-existing psoriasis was permanently aggravated or worsened by the Veteran's military service without resorting to mere speculation. She conceded that psoriasis and many other skin conditions can be aggravated by stress, that psoriasis can progress to arthritic conditions like the Veteran has, but ultimately that psoriasis is an autoimmune condition with unknown etiology. She also included some information from the Mayo Clinic website regarding triggers for psoriasis, which include stress. Statements that are inconclusive as to the origin of a disorder generally cannot be employed as suggestive of a linkage between the disorder and the Veteran's military service. See Warren v. Brown, 6 Vet. App. 4, 6 (1993); Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993). However, these types of opinions also cannot be used to rule out this purported correlation, either. Ultimately, noncommittal opinions like this amount to "nonevidence," neither for nor against the claim, because service connection may not be based on speculation or remote possibility. See generally Bloom v. West, 12 Vet. App. 185 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). See also 38 C.F.R. § 3.102 (when considering application of the benefit-of-the-doubt doctrine, reasonable doubt is one within the range of probability, as distinguished from pure speculation or remote possibility). Indeed, in past decisions the Court also had held that saying a condition "may" be related to the Veteran's military service is tantamount to saying it just as well "may not" be related to his service, so, because of this equivocality, also an insufficient basis to grant service connection. See Obert v. Brown, 5 Vet. App. 30 (1993); Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Winsett v. West, 11 Vet. App. 420 (1998). An etiological opinion, however, has to be viewed in its entire context and not characterized solely by the medical professional's choice of words. See Perman v. Brown, 5 Vet. App. 237, 241 (1993); Lee v. Brown, 10 Vet. App. 336, 338 (1997). Moreover, additional precedent cases have been more recently issued shedding further light on how to properly assess and determine the probative value of these noncommittal opinions. Notably for instance, in Hogan v. Peake, 544 F.3d 1295 (Fed. Cir. 2008), the Federal Circuit Court indicated a determination regarding service connection requires consideration of all pertinent medical and lay evidence, including medical opinions that do not state definitively when a particular disorder or condition began; therefore, classifying a medical opinion as "non-evidence" is "troubling." In Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009), the Federal Circuit Court more recently had held that an examiner's statement, which recites the inability to come to an opinion, provides neither positive nor negative support for service connection; therefore, it is not pertinent evidence regarding service connection. The remainder of the report, however, must be considered as evidence of whether the disability was incurred (or, here, aggravated) in service. An even more recent precedent case also admonished the Board for relying on medical opinions that also were unable to establish this required linkage, without resorting to mere speculation, as cause for denying the Veteran's claims. See Jones v. Shinseki, 23 Vet. App. 382 (2010). In Jones, the Court noted it was unclear whether the examiners were unable to provide this requested definitive medical comment on etiology because they actually were unable to since the limits of medical knowledge had been exhausted or, instead, for example, needed further information to assist in making this determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data. The Court in Jones acknowledged there are instances where a definitive opinion cannot be provided because required information is missing or can no longer be obtained or current medical knowledge yields multiple possible etiologies with none more likely than not the cause of the claimed disability. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (noting the Board need not obtain further medical evidence where the medical evidence "indicates that determining the cause is speculative"). The Court in Jones held, however, that in order to rely upon a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. The Court has held that, once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence ... is essential for a proper appellate decision"). See, too, Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Furthermore, VA must ensure that any medical opinion, including one that states no conclusion can be reached without resorting to speculation, is "based on sufficient facts or data." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2009). Therefore, it must be clear, from either the examiner's statements or the Board decision, that the examiner has indeed considered "all procurable and assembled data," by obtaining all tests and records that might reasonably illuminate the medical analysis. Daves v. Nicholson, 21 Vet. App. 46, 51 (2007). When the record leaves this issue in doubt, it is the Board's duty to remand for further development. The examiner may also have an obligation to conduct research in the medical literature depending on the evidence in the record at the time of examination. See Wallin v. West, 11 Vet. App. 509, 514 (1998). The Jones Court acknowledged that an "examination is not inadequate merely because the examiner states he or she cannot reach a conclusion without resort to speculation." Jones, 23 Vet. App. at 391. The Court also found that "VA is not bound to proceed through multiple iterations of medical opinions until it declares that no further examinations would assist the claimant[,]" which, in the Court's view, was "inherent in a finding that the duty to assist has been fulfilled." Id. The Court in Jones explained that the duty to assist, rather, requires VA to obtain all relevant information that may reasonably be obtained before the Board may rely on a VA medical examiner's opinion to deny a claim and enumerates the steps under which the duty to assist may apply. Id., at 388. The Court first found that the duty to assist applies when "an examiner specifically identifies additional information that would facilitate a more conclusive opinion." The Court then found that "it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion." Id., at 389. The Court in Jones went on to point out that, while an opinion that diagnosis or etiology was not possible without resorting to speculation was just as much a medical conclusion as a firm diagnosis or a conclusive opinion, a bald statement that it would be speculative to render an opinion as to etiology or diagnosis was ambiguous and, thus, it must be clear that the examiner has considered "all procurable and assembled data," by obtaining all relevant tests and records that might reasonably illuminate the medical analysis. Id., at 390. In this particular case at hand, while the examiner noted that she had reviewed the Veteran's STRs and post-service records, she did not comment on them, especially the notation by the VA rheumatologist that was previously discussed and the fact that the Veteran's psoriasis appeared to have spread to more areas of his body during his service. Nor did she comment on the Veteran's assertions that his psoriasis worsened in service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). See also Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Therefore, in accordance with VA's duty to provide the Veteran an adequate VA examination, he must be afforded a new examination so that an opinion can be provided that takes into consideration his entire relevant medical history, to include his lay statements. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Accordingly, this claim is REMANDED for the following additional development and consideration: 1. Obtain all outstanding, pertinent, medical treatment records, including those from the VA Medical Center (VAMC) in Kansas City since January 2011. All additional treatment records the Veteran identifies should be obtained, as well, and associated with the claims file for consideration. The amount of effort needed to be expended depends on who has custody of the records. If they are not in the custody of a Federal department or agency, then 38 C.F.R. § 3.159(c)(1) controls, whereas subpart (c)(2) controls if they are. If these efforts yield negative results, a notation to that effect must be made in the file and the Veteran appropriately notified. 38 C.F.R. § 3.159(e)(1). 2. Upon receipt of all additional records, schedule another VA compensation examination for a supplemental medical nexus opinion concerning the likelihood (very likely, as likely as not, or unlikely) the Veteran's pre-existing psoriasis was chronically aggravated (meaning permanently worsened) during or by his active military service from March 1989 to March 1993. All diagnostic testing and evaluation needed to make this determination should be performed, and all clinical findings reported in detail. As well, it is absolutely imperative the examiner review the claims file, including a complete copy of this remand, for the pertinent medical and other history. Specifically, the examiner should consider the extent of the Veteran's psoriasis at the time he entered service in 1989. The examiner should also consider the complaints and treatment the Veteran received on the several occasions during his service, and the current severity of his psoriasis and his lay statements about the progression of his associated symptoms. The examiner should also consider and comment on the April 2010 notation in the Veteran's VA treatment records by the rheumatologist regarding the possibility the Veteran's psoriasis was aggravated by his service, especially on account of the amount of stress he was experiencing at the time. The examiner should specifically provide answers to the following questions: a) Did the Veteran's pre-existing psoriasis permanently increase in severity during his active military service? b) If there was a permanent increase in severity of the pre-existing psoriasis, then was it due to the natural progression of the disease or, instead, the result of something that occurred in service, including the stress of serving during the Persian Gulf War? In requesting this supplemental comment, the VA examiner should note that, in order to rely upon a statement that an opinion cannot be provided concerning this without resorting to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. So the examiner should make every effort to provide this needed opinion, including all supporting rationale. If after consideration of all pertinent facts, additional testing results, or procurable data, the examiner still cannot provide an opinion without resorting to mere speculation, then this must be expressly indicated and, more importantly, the examiner must explain why the requested opinion is not possible or feasible. Merely saying he/she cannot comment will not suffice. 3. Then readjudicate this claim for service connection for psoriasis in light of this and all other additional evidence, but considering whether this pre-existing disease was aggravated, not caused, by the Veteran's military service. If this claim continues to be denied, send him and his representative a supplemental statement of the case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs