Citation Nr: 1804049 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-10 149 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Whether new and material evidence has been received to reopen claim for service connection for discoid lupus erythematosus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. A. Macek, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1971 to September 1975. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Subsequently, the RO in Los Angeles, California has taken jurisdiction of the issue. In December 2016, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a Board video conference hearing. A transcript of the hearing has been associated with the claims file. FINDING OF FACT The August 2008 rating decision which denied connection for discoid lupus erythematosus is final; evidence received since that rating decision is new but not material, and does not otherwise raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The August 2008 rating decision denying service connection for discoid lupus erythematosus is final and the criteria for reopening that claim have not been met. 38 U.S.C. §§ 5108, 7105(c) (West 2012); 38 C.F.R. §§ 3.104 (a), 3.156, 3.159(c)(4), 3.160(d), 20.200, 20.302, 20.1103 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION New and Material Evidence Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103 (2017). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a) (2017). 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). Discoid lupus erythematosus In December 2016, the Veteran testified that he began receiving treatment for discoid lupus erythematosus after his reenlistment in the military in 1973. See December 2016 Transcript. He stated that he continued to receive treatment for the condition after his 1975 separation. He acknowledged that the condition had resolved and that he no longer receives treatment for discoid lupus erythematosus reporting that his last treatment was approximately 10 years ago. In the August 2008 rating decision, the Veteran was denied service connection for discoid lupus erythematosus as it was determined that such was not shown in service. In addition, there was questionable evidence as to whether the Veteran had a current disability manifested by discoid lupus erythematosus. In a March 2008 VA examination, the examiner, citing the Veteran's lay testimony, determined that the Veteran had episodes of skin lesions during service, based on the Veteran's self-report; however, it was determined that there was no evidence of an onset of a skin condition during service and no objective medical evidence providing a positive etiology opinion linking the Veteran's skin disability, which was present at the time, to such service. VA treatment records from 2006 through 2013 were added since the August 2008 rating decision. This evidence is new as it was not considered in the rating decision which denied service connection for discoid lupus erythematosus; however, the evidence is not material as it does not contain evidence of an in-service onset of the disability and does not provide evidence that the disability was etiologically related to his military service. Unfortunately, new and material evidence has not been received to reopen the Veteran's claim. There remains no medical evidence supporting the Veteran's prior contention that a current discoid lupus erythematosus disability is etiologically related to his active military service. As such, re-opening the Veteran's claim for discoid lupus erythematosus is not warranted. Additionally, the Veteran does not present with a current manifestation of discoid lupus erythematosus. The existence of a current disability is the cornerstone of a claim for VA disability compensation, and without a current manifestation of discoid lupus erythematosus, service connection for the condition is not warranted. 38 U.S.C.§ 1110 (West 2012); see also Brammer v. Derwinski, 3 Vet. App. 223, at 225 (1992). ORDER The petition to reopen the previously denied claim for entitlement to service connection for discoid lupus erythematosus is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs