Citation Nr: 18140615 Decision Date: 10/04/18 Archive Date: 10/03/18 DOCKET NO. 15-29 889 DATE: October 4, 2018 ORDER New and material evidence has been received to reopen the claim for entitlement to service connection for keloids, left shoulder. REMANDED Entitlement to service connection for a low back condition is remanded. Entitlement to service connection for sciatica, to include as secondary to a low back condition, is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for keloids, left shoulder is remanded. FINDINGS OF FACT 1. An unappealed November 1991 decision denied service connection for keloids of the left shoulder based on findings that the Veteran’s pre-existing condition was not aggravated during active duty service. 2. Evidence submitted since the November 1991 final rating decision is not cumulative or redundant of evidence of record at the time of the prior denial, it relates to unestablished facts necessary to substantiate the Veteran’s claim for service connection for keloids, left shoulder, and it raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1.The November 1991 rating decision that denied service connection for keloids of the left shoulder is final. 38 U.S.C. § 7105; 38 C.F.R. § 3.104, 20.302, 20.1103. 2. Evidence received after the November 1991 rating decision is new and material and serves to reopen the Veteran’s claim of entitlement to service connection for keloids, left shoulder. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from December 1982 to June 1991. In his August 2015 VA Form 9, the Veteran requested a hearing before the Board. However, he later withdrew his hearing request. See June 2017 withdrawal. New and Material Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. 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 is not required as to each previously unproven element of a claim. There is a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). A November 1991 rating decision denied service connection for keloids of the left shoulder on the basis that the Veteran had keloids of the left shoulder before entering service and there was no evidence of any aggravation in service. The Veteran did not appeal that decision or submit new and material evidence within one year of that decision; therefore, it became final. 38 U.S.C. § 7105; 38 C.F.R. § 3.104, 3.156(b), 20.302, 20.1103. In October 2011 the Veteran filed a claim to reopen. Evidence added to the record since the November 1991 rating decision includes a December 2012 statement from the Veteran which describes worsening of his keloids scars while in service. In particular, he stated that prior to service, his keloid scars were small, but in service, they grew to nearly covering his whole shoulder and became sensitive to touch. The Veteran’s statements are presumed credible for the purposes of reopening; therefore, this evidence is considered new and material as it provides additional information relating to an unestablished fact necessary to substantiate this service connection claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Accordingly, the Board concludes that the November 1991 rating decision will be reopened because new and material evidence has been received. REASONS FOR REMAND 1. Entitlement to service connection for a low back condition and sciatica, to include as secondary to a low back condition, are remanded. The record reflects the Veteran has been diagnosed with low back pain and degenerative disc disease. See CAPRI and See CAPRI. The record also shows that in October 1986, while in service, the Veteran was treated for a back strain after hurting his back while lifting his daughter out of her crib. See Notice of Disagreement. In addition to his in-service injury, the Veteran also contends additional lifting was required during field exercises which forced him to strain and weaken his lower back even more. In particular, he had to unload and reload the trucks. See correspondence. In light of the Veteran’s chronic low back pain coupled with his contentions of in-service injury to his back, the Board finds a medical examination and opinion is warranted prior to adjudicating this claim. Moreover, because the Veteran’s claim for service connection for sciatica is secondary to his low back condition, these issues are inextricably intertwined, requiring a medical opinion as well. 2. Entitlement to service connection for sleep apnea is remanded. The Veteran contends he suffered breathing problems in service which led to a tonsillectomy. As a result of those breathing problems and his tonsillectomy, he contends he now has sleep apnea. The Veteran recounted at his last in-service physical, he was questioned as to his sleep habits in which he indicated he often snored and had difficulty sleeping. See correspondence. The June 2015 VA examiner diagnosed the Veteran with obstructive sleep apnea and found it was not associated with the tonsillectomy surgery because the Veteran stated his symptoms improved after tonsillectomy surgery was completed. See examination. While the examiner provided a negative nexus between the Veteran’s sleep apnea and his in-service tonsillectomy surgery, the examiner did not provide an opinion as to whether the obstructive sleep apnea was caused or related to his service, including contentions of snoring and sleep trouble. As such, another medical addendum opinion is required prior to adjudicating this claim. 3. Entitlement to service connection for keloids, left shoulder is remanded. The record reflects the Veteran had a pre-existing condition of keloids on his left shoulder. However, the Veteran contends his pre-existing condition was aggravated by his service. In his December 2012 statement, the Veteran described in-service irritation while he wore BDU shirts to his three keloids on his upper left shoulder. The irritation made the scars itch and protrude from his shirt. They became noticeable to others. The Veteran further reported the scars on his shoulder grew and were very sensitive. Prior to his service, the Veteran indicated the scars were small but after his service they nearly cover his entire shoulder. In light of the Veteran’s contentions of aggravation to his left shoulder keloids from his service, the Board finds a VA examination is also necessary prior to adjudicating this claim. The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any low back disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the October 1986 treatment for a back strain or the Veteran’s assertions of strain to the low back during field exercises. Additionally, the examiner is asked to opine whether it is at least as likely as not that any diagnosed sciatica is (1) proximately due to any low back disability, or (2) aggravated beyond its natural progression by a low back disability. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s sleep apnea is at least as likely as not related to his service, including any evidence of snoring and sleep troubles in service. If it is determined that the requested opinion may not be provided without an examination of the Veteran, such should be scheduled. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any keloids of left shoulder. The examiner must opine whether it was at least as likely as not aggravated (non-temporary increase in severity) by service and, if so, whether any increase in severity was clearly and unmistakably (undebatable) due to its natural progress. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Churchwell, Associate Counsel