Citation Nr: 1753331	
Decision Date: 11/21/17    Archive Date: 12/01/17

DOCKET NO.  13-33 507	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a chronic low back pain disability; and if so, whether service connection is warranted.

2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a skin disability, to include a skin disorder of the trunk and extremities and eczema of the hands; and if so, whether service connection is warranted.


REPRESENTATION

Appellant represented by:	Mississippi State Veterans Affairs Board


WITNESSES AT HEARING ON APPEAL

Appellant and Appellant's wife


ATTORNEY FOR THE BOARD

J. Tunis, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1980 to August 1983, and from December 1990 to December 1991, periods of Reserve service. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. 

A videoconference hearing was held in October 2016 at the Jackson, Mississippi RO, before the undersigned Veterans Law Judge (VLJ) sitting in Washington DC. A copy of the transcript of that hearing is of record.

In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen the claim before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). The question of whether new and material evidence has been received to reopen such a claim must be addressed in the first instance by the Board, because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson, 265 F.3d 1366; see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995).

The Board has reviewed the Veteran's electronic claims folder maintained in the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS).

The issues of entitlement to service connection for a chronic low back pain disability, and entitlement to service connection for a skin disability, to include a skin disorder of the trunk and extremities and eczema of the hands are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. In an unappealed April 1992 rating decision, the RO denied service connection for a chronic low back pain disability.

2. In an unappealed April 1992 rating decision, the RO denied service connection for a skin disability.

3. New evidence received since the April 1992 rating decision tends to prove previously unestablished facts necessary to substantiate the underlying claim of service connection for a chronic low back pain disability, and raises a reasonable possibility of substantiating the claim.

4. New evidence received since the April 1992 rating decision tends to prove previously unestablished facts necessary to substantiate the underlying claim of service connection for a skin disability, and raises a reasonable possibility of substantiating the claim.


CONCLUSIONS OF LAW

1. The April 1992 rating decision denying service connection for a chronic low back pain disability is final. 38 U.S.C.A. § 7104 (West 2014); 38 C.F.R. § 20.1103 (2017).

2. The April 1992 rating decision denying service connection for a skin disability is final. 38 U.S.C.A. § 7104 (West 2014); 38 C.F.R. § 20.1103 (2017).
3. The evidence received for service connection subsequent to the April 1992 rating decision is new and material to reopen service connection for a chronic low back pain disability. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. §§ 3.156 (1), 3.303, 20.1105 (2017).

4. The evidence received for service connection subsequent to the April 1992 rating decision is new and material to reopen service connection for a skin disability. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. §§ 3.156 (1), 3.303, 20.1105 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. VA's Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, as to the claims to reopen service connection, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed.

II. Whether New and Material Evidence has Been Received to Reopen the Claims

A claim previously denied by the RO may be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108, 7104, 7105; see 38 C.F.R. § 3.156 (2017). However, new and material evidence is not required as to each previously unproven element of a claim in order to reopen a claim. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). 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). 

New evidence is defined as evidence not previously submitted to agency decision-makers. 38 C.F.R. § 3.156 (a). 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. Id. 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. Id. 

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade, 24 Vet. App. at 117. 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. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998).

Here, in an April 1992 rating decision, the AOJ denied the Veteran's claims of entitlement to service connection for a back condition and for a chronic skin disease or condition. Specifically, the Veteran's claim for entitlement to service connection for a back condition was denied because the back condition was found to be pre-existing and because there was no indication that the back condition was aggravated by the Veteran's service. Additionally, the Veteran's claim for entitlement to service connection for a chronic skin disease was denied because the AOJ found that there is no evidence of a chronic skin disease that was incurred or aggravated by the Veteran's military service. 

The Veteran was informed of his appellate rights with his denials, and did not file a timely appeal, nor submit new and material evidence within one year of the denial. Furthermore, the Veteran did not assert there was clear and unmistakable error. Therefore, the decision became final. 38 U.S.C.A. § 7105 (c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 

The Board finds that since the April 1992 rating decision, the record includes new and material evidence that warrants the reopening of the claims. Of record is the Veteran's October 2016 videoconference hearing transcript. The Veteran testified that he hurt his back during training in service in December 1990 when he jumped off the top of a truck and one of his feet landed in a hole, and that he did not have a prior back problem. The Veteran points out that because he did not have any prior back problems, his National Guard record should not include any light duty reports. The Veteran further explained that he continues to get treatment for his back at the VA Medical Center. The Veteran stated that when he walks for a long distance, his left leg gives out and there is pain as a result of his back problems. 

Additionally, at the October 2016 videoconference hearing, the Veteran testified that he suffers from dry skin and that he began suffering from such in 1982 while stationed in Fort Polk, Louisiana. The Veteran contends that a rash has now spread from the back of his leg all the way to his nose. Furthermore, of record is a February 2014 VA examination, which includes a diagnosis of tumors and neoplasms of the skin, including malignant melanoma.

The Board finds that the above evidence are new because they were not previously submitted to be considered in the April 1992 rating decision. 38 C.F.R. § 3.156 (a). Assuming its credibility for the purpose of this decision to reopen, this evidence is also material because lay statements regarding symptoms observed and regarding the etiology of the Veteran's back and skin disorders relate to unestablished facts necessary to substantiate the Veteran's claims. Id. Additionally, the VA examination is also material because it contains a diagnosis not previously considered by the AOJ in the April 1992 rating decision. This additional evidence is not redundant of the evidence of record at the time of the last prior final denial of the claim. Id. In fact, this new evidence could certainly contribute to a more complete picture of the circumstances surrounding the origin of and current nature of the Veteran's back and skin injuries or disabilities, even where it would not be enough to convince the Board to grant a claim. See Hodge, 155 F.3d at 1363.
As this evidence was not available at the time of the prior denial and as such evidence relates to unestablished facts necessary to further the Veteran's claims, it is sufficient to reopen the claims for service connection of a low back disability and for service connection of a skin disorder.


ORDER

New and material evidence having been received, the claim of entitlement to service connection for a chronic low back pain disability is reopened.

New and material evidence having been received, the claim of entitlement to service connection for skin disability, to include a skin disorder of the trunk and extremities and eczema of the hands, is reopened.


REMAND

After a review of the Veteran's electronic claims file, the Board finds that additional development and adjudication is necessary. 

Regarding the Veteran's back, the Board notes that at the October 2016 videoconference hearing, the Veteran testified that his back condition did not preexist his service. Instead, the Veteran states that his back disability is the result of an injury during training in December 1990 when he jumped off the top of a truck and one of his feet landed in a hole. As noted above, the Veteran testified that his National Guard records prior to this injury should not include any light duty reports or indications of a preexisting back condition. The Veteran further explained that he continues to get treatment for his back at the VA Medical Center. The Veteran stated that when he walks for a long distance, his left leg gives out and there is pain as a result of his back problems. 

Given the Veteran's testimony, the Board remands this matter to obtain all outstanding records from the Veteran's time in the National Guard and to obtain all outstanding VA treatment records pertaining to the Veteran's treatment of his back condition. 

Additionally, on remand, the Veteran is to be afforded a VA examination to determine the nature and etiology of the Veteran's back condition. The Board notes that the April 1992 rating decision indicates that the Veteran reported hurting his back lifting an entertainment center in November 1988; however, the Veteran now testifies that he had no prior back injury and that his back disability is the result of his in-service injury. Although a January 1991 examination notes chronic back pain, service treatment records include examinations from 1987 that do not indicate a back disability. The Board does not find that the Veteran's back pain was noted upon entry. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2014). In all cases, a Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2014); 38 C.F.R. § 3.304 (b) (2015). In other words, "[w]hen no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In addition, "the presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service." Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012).

Pertaining to the Veteran's skin disability, the Board remands this matter for an additional VA examination to determine the current nature and etiology of the claimed disability. As noted above, the Veteran testified that his condition is the result of service and has worsened, spreading from the back of his legs to his nose. Although the most recent VA examination includes a current diagnosis, on remand, the Board requests a VA examination that considers the Veteran's testimony and provides an opinion as to the etiology of the Veteran's skin disability(ies). 


Accordingly, the case is REMANDED for the following action:

1. Through the appropriate agencies, verify the specific dates of active service and Reserve service.

Pertaining to Reserve service, contact the United States Army Reserve Personnel Center, and any other appropriate source, and request verification of the specific dates of the Veteran's reserve service, to include all periods of active reserve service, ACDUTRA, and INACDUTRA. 

The AOJ should prepare a summary of such dates, or document for the record why the production of a summary of service dates is not possible. All efforts to obtain these records should be fully documented. If records do not exist or further efforts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159 (e).

2. Obtain all service treatment records and military personnel records, to include the Veteran's complete Reserve records. 

If the AOJ cannot locate all relevant records, it must specifically document the attempts that were made to locate them and explain in writing why further attempts to locate or obtain any records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it was unable to obtain; (b) explain the efforts VA has made to obtain the evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given the opportunity to respond.

3. Obtain all ongoing and outstanding VA and/or private treatment records. See October 2016 videoconference hearing transcript (noting ongoing treatment at VA Medical Centers).

For any private treatment records, obtain the appropriate signed releases from the Appellant, and associate any additional records with the claim. If no records are available, a negative response should be associated with the claims file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review.

4. Thereafter, schedule the Veteran for appropriate VA examination to determine the current nature and etiology of his back disability. Any indicated tests should be accomplished. The examiner should note a review the entire record prior to examination, to include any newly associated records obtained as a result of this remand, and to include a copy of this remand. 

The examiner should address the following questions:

(i) Is it at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran's chronic low back pain disability was incurred in or is otherwise related to the Veteran's military service? 

The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.

(ii) If the answer to (i) is negative, is it clear and unmistakable (obvious, manifest, and undebatable) that the Veteran had a chronic low back pain disability prior to his entry into any period of active service?

If clear and unmistakable evidence, the VA examiner should cite to factual data contained in the record or medical literature to support such a conclusion.

(iii) If the answer to (ii) is affirmative, is it also clear and unmistakable that the pre-service chronic low back pain disability WAS NOT aggravated (i.e., permanently worsened beyond the natural progress) during service? 

Any opinion and conclusion offered should be supported by a full explanation with consideration of the lay testimony of record. See October 2016 videoconference hearing transcript (description of worsening and current symptomatology).

A thorough explanation must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.

5. After completing directives 1-3, schedule the Veteran for appropriate VA examination to determine the current nature and etiology of his skin disability. Any indicated tests should be accomplished. The examiner should note a review the entire record prior to examination, to include any newly associated records obtained as a result of this remand, and to include a copy of this remand. 

The examiner should address the following questions:

(i) Identify the Veteran's diagnosed skin disabilities, to include any skin disorders of the trunk, extremities, and hands. 

The examiner is directed to consider any diagnosis found during the period on appeal (see February 2014 VA examination, diagnosis of tumors and neoplasms of the skin, including malignant melanoma) and the examiner is directed to consider the Veteran's October 2016 testimony regarding his symptomatology.

(ii) For each diagnosed skin disability, is it at least as likely as not (i.e., a probability of 50 percent or greater) that the skin disability was incurred in or is otherwise related to the Veteran's military service?

The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.

6.  Review the medical reports obtained above to ensure that the remand directives have been accomplished. If the questions posed are not answered or sufficiently answered, return the case to the examiner for completion of the inquiry. 

7. Then readjudicate the claims on appeal in light of all evidence of record. If an appealed issue remains denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC), and afforded a reasonable period of time within which to respond thereto.

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).


______________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs