Citation Nr: 18145083 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 16-25 876 DATE: October 26, 2018 ORDER The petition to reopen a claim seeking service connection for conjunctivitis is denied. REMANDED Entitlement to a disability rating in excess of 40 percent for degenerative joint disease of the lumbar spine is remanded. Entitlement to a compensable rating for fracture right 5th metatarsal with arthritic changes is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for conjunctivitis was most recently denied in a February 2006 rating decision; the Veteran did not appeal this decision and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period. 2. Although new, the evidence added to the record since the February 2006 rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for conjunctivitis, and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The February 2006 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. 2. New and material evidence has not been received to reopen the Veteran’s claim for service connection for conjunctivitis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from October 1980 to January 2001. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for conjunctivitis The claim for service connection for conjunctivitis was originally denied in a June 2002 rating decision based on a finding that there was no in-service treatment or diagnosis or symptoms of this disorder and there was no current disability. The Veteran did not appeal this decision, nor was any new and material evidence actually or constructively received within a year following the decision; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.156(b), 20.302, 20.1103. The Veteran submitted a subsequent petition to reopen the claim in July 2005. A February 2006 rating decision declined to reopen the claim seeking service connection for conjunctivitis. The Veteran did not appeal this decision, nor was any new and material evidence actually or constructively received within a year following the decision; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.156(b), 20.302, 20.1103. Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA 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 is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. In determining whether evidence is “new and material,” the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); 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.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received 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, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118 (2010). Regardless of the RO’s determination as to whether new and material evidence has been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claim and to adjudicate the claim de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512 (1992). Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. The Board finds that the Veteran has not submitted new and material evidence regarding his back strain since the February 2006 rating decision declining to reopen the claim of service connection. The VA treatment records in the file do not show complaints, symptoms, diagnosis, or treatment of conjunctivitis at any time. A VA treatment record dated April 2016 indicates that the Veteran’s eyes were normal. There is no evidence in the records of conjunctivitis or any other eye infection. Although the April 2016 VA treatment record is new, it does not raise a reasonable possibility of substantiating the claim as it does not indicate the Veteran has a current disability of conjunctivitis that was incurred in service or is otherwise related to his service. 38 C.F.R. § 3.156(a). Furthermore, the evidence would not trigger the VA Secretary’s duty to assist or consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118 (2010). Accordingly, the standards under 3.156(a) are not met and the Veteran’s claim for service connection for conjunctivitis is not reopened. Id. at 110. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 40 percent for degenerative joint disease of the lumbar spine is remanded. In his May 2016 Form 9 Substantive Appeal, the Veteran indicated that his back disability was causing him to have constant right leg and hip pain. Thus, it appears his spinal condition has increased in severity since the Veteran was last examined by VA in October 2014. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his degenerative joint disease of the lumbar spine. 2. Entitlement to a compensable rating for fracture right 5th metatarsal with arthritic changes is remanded. In a Form 646 Statement of Accredited Representative filed in November 2016, the Veteran’s representative asserted that the Veteran was unable to wear certain shoes because of the tenderness of his toe. This indicates that the fracture right 5th metatarsal with arthritic changes has increased in severity since the October 2014 VA examination, at which time the Veteran reported no pain on examination. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of the fracture right 5th metatarsal with arthritic changes. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from June 2016 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected degenerative joint disease of the lumbar spine. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to degenerative joint disease of the lumbar spine alone and discuss the effect of the Veteran’s degenerative joint disease of the lumbar spine on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected fractured right 5th metatarsal with arthritic changes. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the fractured right 5th metatarsal with arthritic changes alone, and discuss the effect of the Veteran’s fractured right 5th metatarsal with arthritic changes on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Dean, Associate Counsel