Citation Nr: 1750179	
Decision Date: 11/06/17    Archive Date: 11/17/17

DOCKET NO.  16-45 900	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for eczema.

2.  Entitlement to service connection for eczema, to include on a secondary basis as to the Veteran's service connected chronic adjustment disorder, claimed as insomnia.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Samantha A. Prinsen, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from November 1953 to November 1956.  During his service, the Veteran was stationed in Korea.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2015 rating decision of the Waco, Texas Regional Office (RO) of the Department of Veterans Affairs (VA).  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issue of entitlement to service connection for eczema is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


FINDINGS OF FACT

1.  By a September 2014 rating decision, the RO denied the Veteran's claim for service connection for eczema; he was advised of the RO's decision and of his appellate rights.

2.  The Veteran did not initiate an appeal the RO's decision and filed a new service connection claim for eczema in May 2015.

3.  Assuming credibility for the purposes of reopening only, the additional evidence received with the claim filed in May 2015, is not cumulative or redundant of the evidence of record at the time of the September 2014 decision, relates to an unestablished fact necessary to substantiate the claim for service connection, and raises a reasonable possibility of substantiating the claim.



CONCLUSIONS OF LAW

1.  The RO's September 2014 rating decision to deny service connection for eczema is final.  38 U.S.C.A. §§ 7105 (West 2014); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017).

2.  New and material evidence has been received to reopen the Veteran's claim for service connection for eczema.  38 U.S.C.A. § 1110, 5108 (West 2014); 38 C.F.R. §§ 3.303, 3.156 (2017).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

A claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).  Evidence is considered "new" if it was not previously submitted to agency decision makers.  "Material" evidence is 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).  In determining whether evidence is new and material, the "credibility of the evidence is to be presumed."  Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the "credibility" of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness).

The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim.  Shade v. Shinseki, 24 Vet. App. 110 (2010).  

In the present case, the RO, by a decision entered in September 2014, denied the Veteran's claim for service connection for eczema on grounds that the eczema did not occur in or was caused by service.  The Veteran has since provided additional evidence regarding his in-service occurrence.  However, in June 2015, the RO declined to reopen the claim based on the evidence submitted by the Veteran.  

The evidence received from the Veteran includes a statement from the Veteran detailing his occurrence of jungle rot during his service in Korea, as well as additional VA treatment records.  The Veteran's statements are of particular importance since the Veteran's service treatment records were damaged due to mold that is fire related.  See Military Personnel Record (October 2016).  This evidence was not before adjudicators when the Veteran's claim was last denied in September 2014.  Therefore it is not cumulative or redundant of the evidence of record at the time of that decision and relates to an unestablished fact necessary to substantiate the claim for service connection for eczema, thus raising a reasonable possibility of substantiating the claim.  Accordingly, the claim is reopened.


ORDER

As new and material evidence has been received, the previously denied claim of entitlement to service connection for eczema is reopened.


REMAND

Although the Board sincerely regrets additional delay, a remand is necessary to afford the Veteran due process of law and to ensure that there is a complete record upon which to decide the Veteran's appeal, so as that he is afforded every possible consideration.  38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2017).

The VA has a duty to assist, which includes providing a medical examination when necessary to make a decision on a claim.  38 C.F.R. § 3.159(c)(4)(i) (2017).  In this case, the Veteran has a current diagnosis of eczema.  The Veteran alleges his occurrences of "jungle rot" while stationed in Korea are linked to his eczema.  Alternatively, the Veteran contends that his eczema results from his service connected disability of chronic adjustment disorder.  There is insufficient evidence in the record to decide the claim.  Therefore, the Board must remand the issue for a medical opinion addressing the etiology of the Veteran's eczema to determine if it is due to the Veteran's alleged occurrence of jungle rot or a result of the Veteran's service connected chronic adjustment disorder.  See 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).  Expedited handling is requested.)

1.  Obtain updated VA treatment records from June 2016 to present.  All records/responses received must be associated with the electronic claims file.  

If such records are unavailable, the Veteran's claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e).
  
2.  Schedule the Veteran for a VA examination by an appropriate medical professional; ensure the VA treatment records are available for the VA examiner to review prior to examination.  The entire claims file, to include all electronic files, must be reviewed by the examiner.  

The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that eczema is related to his active service, or is caused by or aggravated by military service.  

The examiner is to also provide an opinion as to whether eczema is proximately due to or the result of the Veteran's service-connected disease of chronic adjustment disorder, or whether the eczema was aggravated beyond its natural progression due to the Veteran's service connected condition of chronic adjustment disorder.  

The examination report must include a complete rationale for all opinions expressed.  If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).   

3.  After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence.  If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.
 
The Veteran 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).




______________________________________________
KRISTI L. GUNN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs