Citation Nr: 1802145 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-16 365 ) 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 submitted to reopen a previously denied service connection claim for lumbar spine disability. 2. Entitlement to service connection for a lumbar spine disability. 3. Entitlement to service connection for a skin disability, to include tinea versicolor and tinea cruris. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. Sorathia, Counsel INTRODUCTION The Veteran served on active duty from September 1987 to September 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The issue of entitlement to service connection for a skin disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A December 1992 rating decision denied service connection for a lumbar spine disability. The Veteran was notified of the rating decision and his appellate rights in January 1993 and he did not submit a notice of disagreement nor was new and material evidence received within one year of the rating decision. 2. The evidence received since the rating decision is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the service connection claim. 3. Lumbar spine degenerative disc disease with radiculopathy of the right lower extremity is related to service. CONCLUSIONS OF LAW 1. The December 1992 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the service connection claim. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for degenerative disc disease of the lumbar spine with radiculopathy of the right lower extremity have been met. 38 U.S.C.A. §§ 1131, 1154, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence The Veteran seeks to reopen his service connection claim for a lumbar spine disability. Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, 20.302(a), 20.1103. The RO denied service connection for a lumbar spine disability in December 1992 on the basis that a chronic disability was not present during service. The RO considered a VA examination report and the service treatment records. He was informed of his appellate rights in January 1993 but did not submit a notice of disagreement nor was new and material evidence received within one year of the rating decision. The December 1992 rating decision is final. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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 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). New and material evidence has been submitted. Medical opinions from December 2010, January 2011, May 2012, and November 2012 relate the Veteran's lumbar spine disability to service. This relates to the unestablished fact necessary to substantiate the claim; namely a relationship between the lumbar spine disability and service. Accordingly, the service connection claim is reopened. Service Connection Claim The Veteran contends that his lumbar spine disability is related to service. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The Veteran is currently diagnosed with degenerative disc disease of the lumbar spine with radiculopathy of the right lower extremity. Service treatment records from February 1990 reveal reports of low back pain after an injury. An August 1992 VA examination report noted that the Veteran had an in-service back injury and that he reported that he had right buttock pain since the injury. The Veteran was diagnosed with a lumbar spine disability secondary to back strain. After review of the service treatment records, the Veteran's VA medical provider opined that it was as likely as not that the current back pain was due to injuries sustained during military service. A January 2011 private medical opinion from the Veteran's treating physician stated that after review of the service treatment records, the in-service injury could contribute significantly to the development of degenerative disc disease. A May 2012 private medical opinion from the same doctor again stated that the in-service injury contributed significantly to the development of degenerative disc disease of the lumbar spine. A November 2012 medical opinion from another private doctor who treated the Veteran in the 1990s stated that the in-service injury was a "great contributory factor to the development of his degenerative disc disease . . ." The Veteran was afforded a VA examination in April 2012. He was diagnosed with degenerative disc disease of the lumbar spine. He was also diagnosed with radiculopathy of the right lower extremity that is at least as likely as not related to the lumbar spine disability. The examiner opined that it would be mere speculation to state whether the lumbar spine condition was related to service. He reasoned that there was no objective evidence that the low back pain in service was more than acute or transitory since the separation examination report noted no lumbar spine disability. However, this medical opinion is not adequate as it did not consider the Veteran's lay statement that he had right buttock pain since the in-service low back injury. Moreover, the medical opinion did not consider the positive medical opinions of record. Accordingly, the Board cannot find the April 2012 VA medical opinion to be probative. Thus, what remains in this case without the April 2012 VA examination report, are the private medical opinions and VA treatment record which relate the lumbar spine disability to service. Accordingly, service connection for degenerative disc disease of the lumbar spine with radiculopathy of the right lower extremity is granted. ORDER New and material evidence has been submitted to reopen a service connection claim for a lumbar spine disability. Service connection for degenerative disc disease of the lumbar spine with radiculopathy of the right lower extremity is granted. REMAND The Veteran is seeking service connection for a skin disability. It appears that on a June 1987 enlistment examination report, the Veteran was noted to have tinea versicolor. An October 1987 service treatment record noted that he had peeling skin and a November 1987 service treatment record noted that he had tinea corporis. On the June 1990 separation report of medical history, the examiner noted that the Veteran had tinea corporis during service and that it resolved with no current medical problem. An April 2012 VA examination report diagnosed the Veteran with tinea versicolor and tinea cruris. The examiner noted that it would be mere speculation to opine as to whether the skin disability was aggravated by service. The examiner stated that the November 1987 finding of tinea corporis appears to be more consistent with a diagnosis of tinea versicolor. Private medical opinions from January 2011 and May 2012 state that the Veteran has a difficult to treat case of tinea corporis and it is "certainly possible" that the Veteran had a "lingering tinea infection" which started in service. As the VA examination report did not consider this evidence, a new VA medical opinion is required. Moreover, the claims file reveals that the Veteran applied for Social Security disability benefits. Such records are not associated with the claims file and should be sought upon remand. See Golz v. Shinseki, 590 F. 3d 1317 (Fed. Cir. 2010). Outstanding VA and private treatment records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. VA treatment records dated since May 2012 should be associated with the claims file. 2. Afford the Veteran an additional opportunity to identify any outstanding private treatment records, to specifically include any private treatment received from Dr. Cruz and Dr. Hector. The AOJ should then take appropriate steps to associate the identified records with the claims file. Any negative response should be associated with the claims file. 3. The Veteran's Social Security Administration records should be sought. If the records sought are not available, the claims file should be annotated to reflect such and the Veteran should be notified. 4. Schedule the Veteran for an appropriate VA examination in order to determine the nature of the Veteran's skin disability. a) Identify all skin disabilities found to be present. b) Is it at least as likely as not that the Veteran's tinea versicolor noted on the June 1987 enlistment examination report increased in disability during his active service. c) If the examiner determines that it is at least as likely as not that the tinea versicolor increased in disability during the Veteran's active service, the examiner must provide an opinion as to whether there is clear and unmistakable evidence that such increase in the disability was due to the natural progression of the skin disability. d) For all other diagnosed skin disability(ies), to include tinea corporis, is it at least as likely as not that the skin disability had its onset in service or is otherwise related to service. In rendering the requested opinions, the examiner should consider the October 1987 service treatment record which notes peeling skin and the November 1987 service treatment record which notes tinea corporis. The examiner should also review the April 2012 VA examination report which diagnosed tinea versicolor and tinea cruris and stated that the November 1987 finding of tinea corporis appears to be more consistent with a diagnosis of tinea versicolor. Additionally, the examiner should review the January 2011 and May 2012 private opinions which state that the Veteran has a difficult case of tinea corporis and that it is "certainly possible" for the Veteran to have a "lingering" tinea infection which started in service. 5. Then readjudicate the claim. If any of the benefits sought on appeal are denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond. 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 2014). ______________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs