Citation Nr: 1600357 Decision Date: 01/06/16 Archive Date: 01/21/16 DOCKET NO. 14-20 111A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for skin rash (arms) due to exposure to environmental hazards in the Gulf War and, if so, whether service connection is warranted. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a memory loss and insomnia disorder, due to exposure to environmental hazards in the Gulf War and, if so, whether service connection is warranted. 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for bilateral hearing loss due to exposure to environmental hazards in the Gulf War and, if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney ATTORNEY FOR THE BOARD D. M. Donahue Boushehri, Counsel INTRODUCTION The Veteran had active military service November 1982 to March 1997. This matter comes to the Board of Veterans' Appeals (Board) from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The issues of entitlement to service connection for skin rash (arms) and a memory loss and insomnia disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In October 2000, the Board denied service connection for a skin disorder. The Veteran did not appeal the decision. 2. Evidence submitted since the Board's October 2000 decision, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim for service connection for a skin disorder, and therefore raises a reasonable possibility of substantiating the claim. 3. In April 1999, the RO denied service connection for a memory loss and insomnia disorder. The Veteran did not appeal the decision. 4. Evidence submitted since the RO's April 1999 decision, by itself or when considered with previous evidence of record, does relate to an unestablished fact necessary to substantiate the claim for service connection for a memory loss and insomnia disorder, and therefore does raise a reasonable possibility of substantiating the claim. 5. In August 1997, the RO denied service connection for a hearing loss disorder. The Veteran did not submit a timely substantive appeal. 6. Evidence submitted since the RO's August 1997 decision, by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim for service connection for a hearing loss disorder, and therefore does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The Board's October 2000 rating decision which denied service connection for a skin disorder is final. 38 U.S.C.A. § 7104 (West 2014); 38 C.F.R. §§ 3.104, 20.1100 (2015). 2. New and material evidence has been received since the Board's October 2000 rating decision; thus, the claim of service connection for a skin disorder is reopened. 38 U.S.C.A. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. The RO's April 1999 rating decision which denied service connection for a memory loss and insomnia disorder is final. 38 U.S.C.A. § 7105 (West 2014). 4. New and material evidence has been received since the RO's April 1999 rating decision; thus, the claim of service connection for memory loss and insomnia disorder is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2015). 5. The RO's August 1997 rating decision which denied service connection for a hearing loss disorder is final. 38 U.S.C.A. § 7105 (West 2014). 6. New and material evidence has not been received since the RO's August 1997 rating decision; thus, the claim of service connection for a hearing loss disorder is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Here, the Veteran was provided with the relevant notice and information in a March 2012 letter sent prior to the initial adjudication of the claims. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With regard to claims to reopen finally disallowed claims, VAOPGCPREC 6-2014 concluded that the plain language of 38 U.S.C.A. § 5103(a)(1) does not require VA, upon receipt of a previously denied claim, to provide notice of the information and evidence necessary to substantiate the element or elements that were found insufficient in the previous denial of the claim, which indicates that the directives of Kent v. Nicholson, 20 Vet. App. 1 (2006), are no longer controlling insofar as it construed the former § 5103(a) to require that VA provide case-specific notice to a claimant in a claim to reopen. Nonetheless, the pertinent letter satisfied Kent. The Veteran has not alleged any notice deficiency during the adjudication of the claims. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. The purpose behind the notice requirement has been satisfied and the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of the Veteran's case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. VA's duty to assist includes: (1) obtaining records not in the custody of a federal department or agency; (2) obtaining records in the custody of a federal department or agency; (3) obtaining service treatment records or other records relevant to active duty and VA or VA-authorized treatment records; and (4) providing medical examinations or obtaining medical opinions if necessary to decide the claim. See 38 C.F.R. § 3.159(c). In this case, the Veteran's service treatment records and all identified, available, and authorized post-service treatment records relevant to the issues on appeal have been requested or obtained. As to the only claim denied herein, whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for hearing loss, a VA examination was conducted in April 2012 although VA's duty to provide such examination does not attach where new and material evidence has not been presented sufficient to reopen the previously denied claim. Thus, VA's duties have been fulfilled and no further action is necessary. II. New and Material Evidence A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C.A. §§ 5108, 7103, 7104, 7105; 38 C.F.R. §§ 3.156, 20.1100 (2015). 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 sustaining the claim. 38 C.F.R. § 3.156(a) (2015). New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof. See Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. The only exception would be where evidence presented is inherently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran's service connection claim for a skin disorder was originally denied in an August 1997 RO rating decision on the basis that there was no evidence of a present diagnosis of a current skin rash disorder. The evidence submitted at that time included the service treatment records and post-service VA treatment records dated from June to October 1997. In an October 2000 decision, the Board denied the Veteran's claim for service connection for a skin disorder as not well grounded and indicated that there was no positive nexus between diagnosed seborrheic and actinic keratosis and active service. The Veteran did not appeal the Board's October 2000 decision to the United States Court of Appeals for Veterans Claims (Court). Therefore, the Board's October 2000 decision is final. 38 U.S.C.A. § 7104(b) (2015). The Veteran's service connection claim for a memory loss and insomnia disorder was originally denied in an April 1999 RO rating decision on the basis that there was no evidence of a present diagnosis of a memory loss and insomnia disorder. The evidence submitted at that time included the service treatment records. The Veteran did not appeal this decision. Therefore, this rating decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103 (2015). The Veteran's service connection claim for a hearing loss disorder was originally denied in an August 1997 rating decision on the basis that there was no evidence of a present diagnosis of a hearing loss for VA compensation purposes. The evidence submitted at that time included the service treatment records. The Veteran filed a notice of disagreement in July 1998. A September 1998 VA examination report indicated hearing within normal limits. A statement of the case was mailed to the Veteran in April 1999. The Veteran did not submit a substantive appeal for this issue. Therefore, this rating decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103 (2015). In January 2012, the Veteran submitted a petition to reopen the claims for service connection for a skin disorder, a memory loss and insomnia disorder, and a hearing loss disorder. Evidence submitted since the final rating decisions include April 2012 VA examinations and additional post-service VA and private treatment records. A July 2008 private treatment records included a diagnosis of folliculitis of the forearms. An August 2009 private treatment record included a diagnosis of insomnia. The record also includes a May 2015 statement from Dr. A. indicating the Veteran "suffers from Gulf War Veterans' Medically Unexplained Illness and undiagnosed illnesses, and his memory loss, insomnia, and skin condition are symptoms of this." The Board finds that this evidence is both new and material. This evidence was not previously considered by agency decisionmakers, is not cumulative or redundant, relates to unestablished facts necessary to substantiate the Veteran's claims, and raises a reasonable possibility of substantiating the claims. 38 C.F.R. § 3.303 (2015). Accordingly, the Veteran's service connection claims for a skin disorder and a memory loss and insomnia disorder are considered reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the hearing loss claim, the additional evidence of record consists of statements of the Veteran and additional VA and private medical records. An April 2012 VA audio examination included a diagnosis of hearing loss, but audiometric testing did not show a hearing loss for VA compensation purposes. The statements of the Veteran are duplicative and the medical evidence is cumulative, indicating no current hearing loss disability for VA compensation purposes. 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 to the Board. Accordingly, the Veteran's service connection claim for a hearing loss disorder is not reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). ORDER New and material evidence has been received to reopen a claim for entitlement to service connection for skin rash (arms) due to exposure to environmental hazards in the Gulf War; to that extent, the appeal is granted. New and material evidence has been received to reopen a claim for entitlement to service connection for a memory loss and insomnia disorder due to exposure to environmental hazards in the Gulf War; to that extent, the appeal is granted. New and material evidence has not been received to reopen a claim for entitlement to service connection for bilateral hearing loss, and the appeal is denied. REMAND With regard to the Veteran's claims for service connection for memory loss and insomnia, he contends that they are the result of an undiagnosed illness. VA is authorized to compensate any Persian Gulf Veteran with a chronic disability resulting from an undiagnosed illness, or combination of undiagnosed illnesses, which became manifest either during active duty in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more within a presumptive period following service in the Southwest Asia theater of operations during the Persian Gulf War. 38 U.S.C.A. § 1117 (West 2014). The Veteran is a Persian Gulf Veteran. 38 C.F.R. § 3.317(d)(2) (2015). At his April 2012 VA Gulf War examination, the examiner concluded that he did not have an undiagnosed illness for which no etiology could be established. However, the record also includes a May 2015 statement from Dr. A. indicating the Veteran "suffers from Gulf War Veterans' Medically Unexplained Illness and undiagnosed illnesses, and his memory loss and insomnia condition are symptoms of this." The Board also notes that a June 2015 VA PTSD examination report indicates the Veteran has chronic sleep impairment as a symptom of his anxiety disorder. The Board finds an additional VA examination is necessary to determine whether the Veteran has a diagnosed insomnia and/or memory loss disorder due to service to include undiagnosed illness. With regard to a skin disorder, the April 2012 VA examiner provided a negative opinion because there is a gap between follow-up treatment and active military service. The Veteran's active military service ended in 1997, and the Veteran did not seek treatment until 2008. Furthermore, there was no active folliculitis on physical examination. However, the examiner failed to address the October 1997 letter indicating the Veteran had a diagnosis of seborrheic and actinic keratosis. The examiner also did not review the May 2015 statement by the private physician, or address the Veteran's lay assertions of an on-going rash. The Board finds an additional VA skin examination with an opinion which considers both the recent medical and lay evidence of record is necessary. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify any additional, recent treatment records pertaining to his claims. 2. Schedule the Veteran for a VA Gulf War Illness examination. The entire claims file (both the paper claims file and any relevant medical records contained in Virtual VA and/or VBMS) and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. Although an independent review of the claims file is required, the Board calls the examiner's attention to the June 2015 VA PTSD examination which indicated the Veteran has chronic sleep impairment as a symptom of his anxiety disorder and the May 2015 opinion from Dr. A. indicating the Veteran suffers from an undiagnosed illness manifested by his memory loss and insomnia. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a current memory loss and/or insomnia disorder that began during active service, or is related to an incident of service. If there are symptoms of memory loss and insomnia that cannot be attributed to a known diagnostic entity, the examiner must provide an opinion as to whether any such symptoms represent an objective indication of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multisymptom illness related to the Veteran's Persian Gulf War service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion, as well as specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 3. Return the Veteran's claims file to the examiner who conducted the April 2012 skin examination so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. A new examination is only required if deemed necessary by the examiner. The entire claims file (both any paper claims file and any relevant medical records contained in Virtual VA and/or VBMS) and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. If a new examination is warranted, the examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's skin condition began during active service, or is related to an incident of service. If there are symptoms related to the Veteran's skin that cannot be attributed to a known diagnostic entity, the examiner must provide an opinion as to whether any such symptoms represent an objective indication of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multisymptom illness related to the Veteran's Persian Gulf War service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion, as well as specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If any benefit sought on appeal remains denied the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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 2014). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs