Citation Nr: 18141931 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 14-35 500A DATE: October 11, 2018 ORDER The application to reopen the previously denied claim for service connection for lumbosacral or cervical strain, also claimed as back pain, is granted. The application to reopen the previously denied claim for service connection for dermatophytosis, also claimed as residuals of a skin condition, is granted. REMANDED Entitlement to service connection for paralysis of sciatic nerve is remanded. Entitlement to service connection for dermatophytosis, also claimed as a skin condition, is remanded. Entitlement to service connection for lumbosacral or cervical strain, also claimed as back pain, is remanded. FINDINGS OF FACT 1. In a June 2009 decision, the Board denied the Veteran’s appeal to reopen the service-connection claim for back strain due to no new and material evidence. Following proper notification in June 2009, the Veteran did not appeal this decision and it became final. 2. Evidence received since the June 2009 decision bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and in connection with the evidence previously assembled raises a reasonable possibility of substantiating the claim of entitlement to service connection for back pain. 3. In a March 2003 decision, the Board denied the Veteran’s appeal to reopen the service-connection claim for skin disease due to no new and material evidence. Following proper notification in March 2003, the Veteran did not appeal this decision and it became final. 4. Evidence received since the March 2003 decision bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and in connection with the evidence previously assembled raises a reasonable possibility of substantiating the claim of entitlement to service connection for back pain. CONCLUSIONS OF LAW 1. New and material evidence sufficient to reopen the Veteran’s claim for entitlement to service connection for lumbosacral or cervical strain, also claimed as back pain has been submitted since the June 2009 decision; the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence sufficient to reopen the Veteran’s claim for entitlement to service connection for dermatophytosis, also claimed as residuals of a skin condition has been submitted since the March 2003 decision; the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force from February 1966 until his honorable discharge in December 1969. The Veteran asserts that he is entitled to service connection for paralysis of sciatic nerve; dermatophytosis, also claimed as a skin condition; and lumbosacral or cervical strain, also claimed as back pain. New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7103, 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2017). A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108 (2012). Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO or Board denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). 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 (2017). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. 1. New and material evidence to reopen the claim for entitlement to service connection for lumbosacral or cervical strain, also claimed as back pain. In a June 2009 rating decision, the Board denied service connection because new and material evidence had not been submitted. The Veteran did not appeal that decision. The decision is thus final based on the evidence then of record. See 38 U.S.C. § 7103; 38 C.F.R. § 20.1100. Evidence of record at the time of the June 2009 decision includes private provider medical treatment records, service treatment records, service personnel records, statements by the Veteran, and testimony before the Board. Since that time, the Board finds that the Veteran submitted new and material evidence for the claim of lumbosacral or cervical strain, also claimed as back pain. Specifically, the Veteran provided a letter from his private provider that stated that the Veteran’s current degenerative disease had been ongoing since 1966 and the disability was related to the Veteran’s active military service. Additionally, the Veteran provided lay statements from his mother and sister stating that the Veteran had back problems when he returned from active service in 1969. As this new evidence tends to show an in-service onset of the Veteran’s back disability, the Board will reopen this claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (noting 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 when it would not be enough to convince the Board to grant the claim). To this extent, the Veteran’s claim is granted and entitlement to service connection is addressed below. 2. New and material evidence to reopen the claim for entitlement to service connection for dermatophytosis, also claimed as a skin condition. In a March 2003 decision, the Board denied service connection because new and material evidence had not been submitted. The Veteran did not appeal that decision. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7103; 38 C.F.R. § 20.1100. Evidence of record at the time of the March 2003 decision includes service treatment records, service personnel records, and statements by the Veteran. Since that time, the Board finds that the Veteran submitted new and material evidence for the dermatophytosis, also claimed as a skin condition claim. Specifically, the Veteran provided a letter from his private provider that stated that the Veteran’s photosensitivity reaction condition had been ongoing since 1966 and the disability was service related. As this new evidence tends to show an in-service onset of the Veteran’s current skin condition, the Board will reopen this claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (noting 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 when it would not be enough to convince the Board to grant the claim). To this extent, the Veteran’s claim is granted and entitlement to service connection is addressed below. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that there is a complete record on which to decide the Veteran’s claim. Specifically, remand is required to obtain adequate VA examinations documenting the etiology of the Veteran’s paralysis of sciatic nerve; dermatophytosis, also claimed as a skin condition; and lumbosacral or cervical strain, also claimed as back pain disabilities. Paralysis of sciatic nerve In conjunction with the Veteran’s claim, the Veteran was provided VA examination in February 2018; unfortunately, however, the Board finds that the examination report is inadequate. Specifically, the report contains a determination that the paralysis of sciatic nerve was less likely than not (50 percent or lesser probability) proximately due to or the result of left knee degenerative joint disease with small effusion (inflammation) (claimed as left knee). The opinion did not address other theories of entitlement, including whether the Veteran’s current paralysis of sciatic nerve had been aggravated by or directly related to a September 1969 in-service motor vehicle accident or as secondary to the Veteran’s service-connected left knee disability. Remand is thus required to address all theories of entitlement. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Dermatophytosis, also claimed as a skin condition In conjunction with the Veteran’s claim, the Veteran was provided a VA examination in February 2018; unfortunately, however, the Board finds that the examination report is inadequate. See February 2018 VA Examination. Specifically, the report opined that the residuals of skin rash were less likely than not incurred in or caused by the treatment for a rash in August 1966. The examiner determined that the Veteran did not have a skin condition, and that any prior skin condition had resolved. In rendering the opinion, however, the examiner failed to consider that the Veteran’s claim includes photosensitivity. The VA examiner’s opinion fails to address if there is a causal relationship between the Veteran’s photosensitivity and the August 29, 1966 diagnosis of photosensitivity during service. See August 1966 Service Treatment Records, p. 27. Third, the examiner failed to consider evidence in the record showing in-service symptoms and treatment. Specifically, the Veteran presented with a small blister-type of rash on August 1, 1966. See Service Treatment Records, p. 28. After no improvement, the service treatment records reflect that the Veteran was referred to the Dermatology department on August 24, 1966, and the Veteran was subsequently diagnosed with photosensitivity reaction on August 29, 1966. See Service Treatment Records, pp. 27, 28, and 32. The Veteran was placed on restricted duty and prohibited from going outside and ordered to avoid prolonged sunlight exposure, except to travel to and from work for 1 year. See Service Treatment Records, pp. 1-2. The Veteran credibly testified before the undersigned Veterans Law Judge that the photosensitivity condition has persisted since service and that he has continually self-medicated when not being treated by a doctor. Furthermore, the Veteran provided a letter from his private provider that he was treating the Veteran for photosensitivity reaction, and that it was related the Veteran’s active military service (however, the letter did not provide any rationale). See May 2018 Private Provider Letter. Because the examiner provided an incomplete analysis and failed to consider pertinent evidence of record, remand is required for an adequate examination. Lumbosacral or cervical strain, also claimed as back pain In conjunction with the Veteran’s claim, the Veteran was provided a VA examination in February 2018; unfortunately, however, the Board finds that the examination report is inadequate. See February 2018 VA Examination. Specifically, the examiner determined that the lumbosacral or cervical strain was less likely than not incurred in or caused by the treatment for back pain during service. The examiner opined that there was “not enough sufficient service treatment records along with medical treatment records suggesting a lower back condition since service.” Furthermore, the examiner opined that the Veteran had a pre-existing lower back condition prior to service and that the Veteran was 71 at the time of the examination, relating the condition to age. There are multiple problems with the examiner’s opinion. First, the examiner framed the issue as to whether the Veteran’s back condition was incurred in or caused by the “treatment for back pain during service.” In so doing, the examiner did not provide any rationale as to whether the condition was related to service, including but not limited to an in-service injury while playing football or while picking up branches, recurrent issues of back popping during service, or whether the Veteran’s degenerative disc disease started in service. In addition, the examiner’s opinion noted that the Veteran had a pre-existing lower back condition prior to service. The Veteran’s entrance examination indicates normal spine and other musculoskeletal condition. See Service Treatment Records pp. 90-91. Therefore, the Veteran has a presumption of soundness that can only be rebutted by clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304; See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). Although the examiner noted a back injury at age 18, the examiner provided no opinion as to whether the condition was aggravated by service. Lastly, the examiner summarily concluded that the Veteran’s condition was likely age related and was unrelated to service, without explaining how the multiple in-service back complaints factored into that finding. Specifically, the Veteran reported back pain during service on multiple occasions. The Veteran was placed on restricted duty for low back pain and lumbosacral strain three times, and being prohibited from lifting, stooping, and bending for over 1 year. See Service Treatment Records, pp. 51, 72, and 74. The Veteran reported recurrent episodes of his back popping that was not associated with heavy exercise. See Service Treatment Records, p. 26. Additionally, the Veteran reported back trouble during his separation examination. See Service Treatment Records, p. 4. In sum, because the examination report does not contain sufficient detail for the Board to make an informed decision, remand is required. See Stefl, supra. This matter is REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his paralysis of sciatic nerve disability. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner should offer comments, an opinion and a supporting rationale that addresses whether it is at least as likely as not (50 percent probability or greater) that the paralysis of sciatic nerve disability: (a) is etiologically related to service or (b) is caused or aggravated by the Veteran’s service-connected left knee disability. In rendering such determination, the examiner must address the in-service motor vehicle accident in September 1969, and the Veteran’s credible hearing testimony. All opinions must be supported by a detailed rationale. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his dermatophytosis, also claimed as a skin condition. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner should offer comments, an opinion and a supporting rationale that addresses whether it is at least as likely as not (50 percent probability or greater) that the dermatophytosis, also claimed as a skin condition is etiologically related to service. In rendering such opinion, the examiner must address the in-service complaints of blistering and photosensitivity, the restricted duty and directive to avoid prolonged sunlight exposure, and the Veteran’s credible hearing testimony regarding treatment after service. All opinions must be supported by a detailed rationale. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his lumbosacral or cervical strain, also claimed as back pain. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner should offer comments, an opinion and a supporting rationale that addresses the following: a) Is there clear and unmistakable evidence that the back condition preexisted service? If so, is there clear and unmistakable evidence that the condition was not aggravated beyond its natural progress during service? b) If the answer to the above questions in section (a) are negative, provide an opinion as to whether the Veteran’s back condition is at least as likely as not related to service. In rendering such opinion, the examiner must address the multiple complaints of back problems in service. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. DEEMER, ASSOCIATE COUNSEL