Citation Nr: 18139806 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 15-12 159 DATE: October 1, 2018 ORDER New and material evidence having not been received, the claim of entitlement to service connection for a right knee disorder, to include residuals of an injury, is not reopened. New and material evidence having been received, the claim of entitlement to service connection for a skin disorder, to include lichen planus, is reopened. REMANDED Entitlement to service connection for a skin disorder, to include lichen planus, is remanded. Entitlement to service connection for a foot disorder, to include bilateral hallux valgus with bunions and pes planus, is remanded. REFERRED ISSUE The record raises a claim to reopen the issue of entitlement to service connection for a left knee disorder. This issue, however, is not currently developed or certified for appellate review. Accordingly, this matter is referred to the RO for appropriate consideration. FINDINGS OF FACT 1. The evidence received since the October 2008 rating decision does not relate to an unestablished fact necessary to reopen the claim of entitlement to service connection for a right knee disorder to include residuals of an injury. 2. The evidence received since the September 2003 rating decision relates to an unestablished fact necessary to reopen the claim of entitlement to service connection for a skin disorder. CONCLUSIONS OF LAW 1. An October 2008 rating decision denying entitlement to service connection for a right knee disorder to include residuals of an injury is final; new and material evidence has not been received to reopen the claim. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. A September 2003 rating decision denying entitlement to service connection for a skin disorder to include lichen planus is final; new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1971 to November 1974. At a March 2018 Board hearing before the undersigned the Veteran provided testimony associating the three disabilities on appeal with medical treatment he received in-service or conditions he described as aggravation of those disabilities. New and Material Evidence In a September 2003 rating decision VA declined to reopen the claim of entitlement to service connection for a skin disorder. Thereafter, the Veteran did not perfect a timely appeal, and he did not submit new and material evidence within one year of that decision. Hence, the September 2003 rating decision is final. 38 U.S.C. § 7105. In an October 2008 rating decision VA declined to reopen the claim of entitlement to service connection for a right knee disorder. Thereafter, the Veteran did not perfect a timely appeal, and he did not submit new and material evidence within one year of that decision. Hence, the October 2008 rating decision is final. Id. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Evidence is new if it has not been previously submitted to agency decision makers. Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or 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 phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110, 117(2010). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the evidence will be presumed credible. See Kutscherousky v. West, 12 Vet. App. 369, 371(1999). Right knee The Veteran contends that residuals of a right knee injury were incurred inservice. The October 2008 rating decision declined to reopen a claim of entitlement to service connection for a right knee disorder finding that new and material evidence had not been submitted to reopen a prior claim denied in an October 1975 rating decision. That rating decision noted that the appellant had injured his knee as a child, and it found no evidence of inservice aggravation. The evidence available in October 2008 included the appellant’s service medical records. A review of those records reveals that while the appellant had a left knee injury inservice, no complaints, findings or diagnoses of a right knee disorder were noted at any time. These records do not annotate any history of the appellant suffering a right knee disorder as a child. At the Veteran’s November 1974 separation examination his lower extremities were opined to be clinically normal. Also available in October 2008 was an August 1975 VA compensation examination report. At that examination the appellant, for the first time, reported a history of knee numbness, as well as a history of injuring his right knee as a child. Clinical examination was notable for a right knee scar, but otherwise no knee disorder was diagnosed. Since October 2008, the appellant has presented testimony that while on active duty he dislocated/sprained his right knee, and that he had arthritis in that joint since. No medical opinion evidence linking a right knee disorder to service has been proffered. While the Board is obligated to presume the credibility of evidence submitted in support of a claim to reopen, that obligation does not extend to evidence that is inherently incredible. Here the service medical records reveal absolutely no evidence of any complaints, findings or diagnosis pertaining to a right knee disorder. While there is evidence that tracks the appellant’s testimony with respect to his left knee, no such testimony exists pertaining to the right knee joint. Moreover, it is well to note that while voluminous records regarding treatment for various ailments have been submitted since October 2008, no clinical evidence has been presented showing or even suggesting that the claimant suffers from a right knee disorder that is related to service. Accordingly, the Board finds that new and material evidence to reopen the claim of entitlement to service connection for a right knee disorder has not been submitted. The claim is denied. Skin disorder The Veteran contends that a skin disorder, diagnosed as lichen planus had its onset during his active service. A claim to reopen this issue was denied in a September 2003 rating decision because no evidence was submitted which raised a reasonable possibility of changing the outcome of a prior decision had been submitted. Evidence added to the record since VA outpatient treatment records which include a July 2012 notation that the inservice diagnosis of bug bites may have been in error. Since this evidence suggests a link between the Veteran’s in-service skin complaints, and a current diagnosis, the Board finds that it is new and material evidence with regard to the lichen planus disability claim sufficient to warrant reopening. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND As noted above, a July 2012 VA outpatient note indicated that biopsies showed that the appellant suffered from lichen planus. The examining physician at that time appears to raise the possibility that an inservice diagnosis of bug bites may have been in error. Accordingly, the Board finds that the appellant should be provided with a VA examination to address the nature and etiology of any current skin disorder. With respect to the appellant’s claim of entitlement to service connection for a foot disorder he contends that his foot conditions that pre-existed entry on active duty were aggravated by his service. In this regard, the appellant’s November 1971 induction physical examination report indicates a finding of pes planus. The Veteran testified at his hearing that the rigors of basic training, marching, drilling, and the steel decks of the ship all contributed to aggravating his foot condition that existed prior to service. In February 2011, the appellant submitted a statement from Arkansas Specialty Orthopedics which noted a 30 year history of bilateral foot pain. The Veteran has not received a VA examination to address his nature and etiology of any foot disabilities. Accordingly, the Board finds that further development is needed, and that the Veteran should be afforded a VA examination. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 to permit VA to secure all pertinent treatment records concerning care for a skin or foot disorder. Thereafter, appropriate action should be undertaken. This action is to also include, but is not limited to, securing pertinent VA treatment records from the VA Medical Center Little Rock dated since August 2018. If the RO cannot locate such 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 government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Thereafter, schedule the Veteran for VA dermatology and orthopedic examinations to determine the nature and etiology of a skin disorder to include lichen planus, as well as a diagnosed foot disorder. The examiners must be provided access to the appellant’s VBMS and Virtual VA files. Following the examination the skin examiner must opine whether it is at least as likely as not that any currently diagnosed skin disorder is related to service. Following the examination the foot examiner must opine whether it is at least as likely as not that pes planus was permanently aggravated during the Veteran’s active duty service, as well as whether any other diagnosed foot disorder, to include bilateral hallux valgus and bunions, is related to his active duty service. The examiners are advised that they must discuss the Veteran’s self-reported history of a continuity of symptoms since he served on active duty. The examiners are advised that while the Veteran is not competent to diagnose a condition, he is competent to state that he has had symptoms of a diagnosis since active duty. Finally, the examiners are advised that while the absence of corroborating clinical records may NOT be the determinative factor, the terms competence and credibility are not synonymous. All opinions must be supported by a complete and thorough rationale. If the 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 does not have the needed knowledge or training. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Allen M. Kerpan, Associate Counsel