Citation Nr: 1434166 Decision Date: 07/31/14 Archive Date: 08/04/14 DOCKET NO. 11-11 338 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for lupus. 2. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for arthritis of the bilateral upper and lower extremities. 3. Entitlement to service connection for lupus. 4. Entitlement to service connection for arthritis of the bilateral upper and lower extremities. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Pelican, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from February 1986 to July 1987 and from November 1990 to March 1997. These matters come before the Board of Veterans' Appeals (the Board) from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The record reflects that after the final Supplemental Statement of the Case (SSOC) the Veteran submitted additional relevant evidence to the Board in February 2013. No subsequent SSOC was issued, but this is not necessary because the evidence was accompanied by a waiver of initial review of the evidence by the agency of original jurisdiction in accordance with 38 C.F.R. § 20.1304 (2013). The Board has not only reviewed the Veteran's physical claims file, but also her electronic claims file to ensure a total review of the evidence. The Veteran had a hearing before the undersigned Veterans Law Judge in January 2013. A transcript of that proceeding has been associated with the claims file. The issue of entitlement to service connection for arthritis of the bilateral upper and lower extremities is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The October 2006 rating decision that denied service connection for lupus, on the basis that the Veteran's service treatment records showed no diagnosis of or treatment for lupus, was not appealed. 2. The evidence received since the October 2006 rating decision is new and raises a reasonable possibility of substantiating the claim of service connection for lupus. 3. The October 2006 rating decision that denied service connection for arthritis, on the grounds that the there was no evidence that the Veteran suffered from arthritis during service or that her arthritis was related to service, was not appealed. 4. The evidence received since the October 2006 rating decision is new and raises a reasonable possibility of substantiating the claims of service connection for lupus and arthritis of the bilateral upper and lower extremities. 5. The most probative evidence of record reflects a current diagnosis of lupus that initially manifested during active service. CONCLUSIONS OF LAW 1. The October 2006 rating decision that denied the Veteran's claims of entitlement to service connection for lupus and arthritis is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2006). 2. Evidence added to the record since the October 2006 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of sustaining the Veteran's claims of entitlement to service connection for lupus and arthritis of the bilateral upper and lower extremities. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 3. Resolving any reasonable doubt in the Veteran's favor, the elements required to establish service connection for lupus have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.159 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Claim The Veteran filed claims of entitlement to service connection for lupus and arthritis in February 2006. VA denied the claims in an October 2006 rating decision. The lupus claim was denied on the grounds that there was no evidence the Veteran suffered from lupus during service, and the arthritis claim was denied on the grounds that there was no evidence of arthritis (aside from right hip arthritis) during service or a link between the Veteran's current arthritis and service. The Veteran did not file a Notice of Disagreement or new and material evidence within one year, and the decision became final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2006). Applicable law provides that a claim which is the subject of a prior final decision may be reopened upon presentation of new and material evidence. See 38 C.F.R. § 3.156 (2013). In October 2009, the Veteran filed a claim for entitlement to service connection for arthritis of the bilateral upper and lower extremities. In November 2009, the Veteran filed a claim of entitlement to service connection for lupus. The RO treated both claims as new claims rather than as petitions to reopen, and in an April 2010 decision denied the claims on the merits. In a June 2010 deferred rating decision, the RO noted that the Veteran's claims should have been treated as petitions to reopen, and later that month sent updated VCAA notice. New evidence is defined as existing evidence not previously submitted to VA, and 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. 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) (2013). 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, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include 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. 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, 284 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). At the time of the October 2006 denials, the evidence of record consisted of service treatment records and VA medical records from December 2004 to May 2006. Service connection for lupus was denied on the grounds that there was no evidence the Veteran suffered from lupus during service. Service connection for arthritis was denied on the grounds that there was no evidence that arthritis occurred in or was caused by service. Since the October 2006 denial, the Veteran submitted VA medical records that documented her initial diagnosis of lupus, as well as private treatment records documenting care for lupus and rheumatoid arthritis. The Veteran was also afforded VA examinations in connection with her claims in November 2010. Additionally, the Veteran presented testimony at a January 2013 videoconference hearing regarding the onset of her claimed disabilities. The evidence is new, as it was received by VA after the issuance of the October 2006 rating decision, and could not have been considered by prior decision makers. Moreover, it is material, as it addresses the circumstances surrounding the origin of the Veteran's claimed disabilities, as well as their relationship to service, elements of service connection that the 2006 rating decision found lacking. New and material evidence having been received, reopening of the previously denied claims of entitlement to service connection for lupus and arthritis of the bilateral upper and lower extremities is warranted. 38 U.S.C.A. §5108 (West 2002); 38 C.F.R. § 3.156 (2013). For reasons described in further detail below, the arthritis claim requires additional development on remand, but the Board will proceed to the merits of the lupus claim. Lupus Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2013). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2013). To establish service connection on a direct basis, a Veteran must show: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The Veteran's private and VA medical records indicate she has a current diagnosis of lupus. Thus, the first Hickson element is satisfied. Regarding the second and third Hickson elements, in-service incurrence and evidence of a medical nexus, the Board acknowledges the Veteran's service treatment records are silent for a diagnosis of or treatment for lupus. However, in a February 2011 addendum opinion, a VA examiner opined that the Veteran's lupus was most likely permanently aggravated by her service-connected right hip disability. In his rationale for the rendered opinion, however, the examiner wrote that the Veteran's right hip condition was likely secondary to her lupus, explaining that lupus can go undiagnosed for years, and it was likely that the Veteran had lupus affecting her right hip while in the service that was undiagnosed and that had now worsened. Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that the second and third Hickson elements are met, and accordingly, service connection for lupus is warranted. ORDER New and material evidence having been received, reopening of the previously denied claim of entitlement to service connection for arthritis of the bilateral upper and lower extremities is reopened; to this extent only, the claim is granted. The claim for service connection for lupus is reopened on the basis of new and material evidence, and service connection is granted for lupus. REMAND The Board finds that the November 2010 VA examination report conducted in connection with the Veteran's claim for arthritis of the bilateral upper and lower extremities is inadequate. Specifically, the examiner opined that the Veteran's "rheumatoid arthritis of bilateral upper and lower extremity joints is progression of or related to was not permanently aggravated by arthritis of the right hip." The examiner's rationale was that the Veteran's current joint findings were likely a progression of her rheumatoid arthritis and were not likely caused by the Veteran's service connected hip pain. The opinion is contradictory and therefore does not provide sufficient information for the Board to render an informed determination on the Veteran's arthritis claim. Additionally, the Veteran and medical evidence of record suggest that her rheumatoid arthritis symptoms may be caused by, or may be a manifestation of, her service-connected lupus. Thus, a new examination is necessary to address these matters. Accordingly, the case is REMANDED for the following actions: 1. Obtain all outstanding VA treatment and evaluation records relating to the Veteran's arthritis of the bilateral upper and lower extremities. All records received should be associated with the claims file. 2. Request the Veteran furnish all dates and places of non-VA treatment for her arthritis of the bilateral upper and lower extremities that is not yet of record. After obtaining authorization from the Veteran, request copies of any outstanding treatment records from any treatment provider identified by the Veteran. If VA is unable to obtain such records, the Veteran should be accorded the opportunity to furnish such records directly to VA. All records received should be associated with the claims file. 3. When the above actions have been accomplished to the extent possible, schedule the Veteran for an appropriate examination to determine the nature and etiology of any diagnosed arthritis disabilities of the bilateral upper and lower extremities. The examiner should review the Veteran's claims file, to include a copy of this remand, in conjunction with the examination. Any indicated studies or diagnostic tests should be performed. Specifically, the examiner should opine on the following: a) Identify any currently diagnosed arthritis disability, to include rheumatoid arthritis or any other form. b) Whether any diagnosed arthritis disability is a symptom of the Veteran's service-connected lupus, or is a separate and distinct disability. c) Whether it is at least as likely as not (a probability of 50 percent or greater) that any diagnosed arthritis disability is related to active service. d) Whether it is at least as likely as not (a probability of 50 percent or greater) that any diagnosed arthritis disability was caused by the Veteran's service-connected lupus or right hip arthritis. e) Whether it is at least as likely as not (a probability of 50 percent or greater) that any diagnosed arthritis disability was aggravated (i.e., worsened) beyond the natural progress by the Veteran's service-connected lupus or right hip arthritis. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's arthritis disability found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected lupus or right hip arthritis. The rationale for any opinion rendered must be provided. If the examiner is unable to offer any opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 4. After ensuring that the requested actions are completed, the AOJ should undertake any other development actions deemed warranted and readjudicate the claim on appeal. If the benefit sought is not fully granted, the AOJ must furnish a SSOC before the claims file is returned to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs