Citation Nr: 18145313 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 17-17 302 DATE: October 26, 2018 ORDER The application to reopen a previously denied claim for service connection for depressive disorder also claimed as memory loss is granted. REMANDED Whether new and material evidence has been received sufficient to reopen a previously denied claim for service connection for joint pain and weakness is remanded. Whether new and material evidence has been received sufficient to reopen a previously denied claim for service connection for chronic obstructive pulmonary disease (COPD) is remanded. Whether new and material evidence has been received sufficient to reopen a previously denied claim for service connection for headaches is remanded. Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for chronic fatigue syndrome is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to an initial rating in excess of 10 percent for service-connected gastroesophageal reflux (GERD) is remanded. Entitlement to an initial compensable rating for service-connected eczema is remanded. FINDINGS OF FACT 1. In a January 2003 rating decision, the RO denied the Veteran’s petition to reopen his previously-denied claims for service connection for depressive disorder also claimed as memory loss; he did not appeal that decision. 2. Additional evidence associated with the claims file since the January 2003 rating decision is not cumulative or redundant of the evidence of record at the time of the prior denial, and it relates to unestablished facts necessary to substantiate the claim for service connection for depressive disorder also claimed as memory loss. CONCLUSIONS OF LAW 1. The January 2003 rating decision that denied the Veteran’s claim for service connection for depressive disorder also claimed as memory loss is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. § 3.104, 20.302, 20.1103 (2017). 2. As evidence received since the January 2003 rating decision is new and material, the criteria for reopening the claim for service connection for depressive disorder also claimed as memory loss are met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1982 to December 1985. And from September 1990 to May 1991. Rating actions are final and binding based on the evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from the notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105 (b) and (c); 38 C.F.R. §§ 3.160 (d), 20.200, 20.201, 20.202, 20.302(a) (2017). However, if new and material evidence is presented or secured, VA shall reopen and review the former disposition of the claim. 38 U.S.C. § 5108. “New and material evidence” is defined as evidence not previously submitted to the agency decision makers which is neither cumulative or redundant, which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what evidence is new and material, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In July 1995, the Veteran filed a claim for service connection for nervous problems. In May 1996, he filed a claim for service connection for nervous breakdowns. In an April 1998 rating decision, the RO denied the Veteran’s claim for service connection for a nervous disorder to include memory loss. The RO concluded that, while the Veteran was diagnosed with depressive disorder, the evidence of record failed to demonstrate that such had its onset during, or was otherwise related to, his military service. Evidence of record included the Veteran’s service treatment records from September 1990 to May 1991, his lay statements concerning the onset and continuity of his psychiatric symptoms, and August 1995 and October 1997 VA examination reports. Although notified of the decision and his appellate rights, he did not enter a notice of disagreement with the decision. No further communication regarding his claims for service connection for a depressive disorder also claimed as memory loss was received until November 2002, when VA received his petition to reopen this claim. Therefore, the April 1998 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran filed a petition to reopen his claim for service connection for depressive disorder also claimed as memory loss in November 2002; however, his petition was denied in January 2003. The RO concluded that, despite the submission of additional VA treatment records, the evidence was not material to allow for the reopening of his previously-denied claim. After he was notified of the decision and his appellate rights, he did not enter a notice of disagreement with the decision. No further communication regarding his claims for depressive disorder also claimed as memory loss was received until December 2013, when VA received his petition to reopen this claim. Therefore, the January 2003 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the period. However, such regulation is inapplicable here, as there is no indication that new and material evidence was received prior to the expiration of the appeal periods associated with the April 1998 and January 2003 rating decisions. See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Furthermore, 38 C.F.R. § 3.156(c) is also inapplicable. The Board notes that, in July 2005 and January 2007, service records from the Veteran’s period of active duty from December 1982 to December 1985 were added to the claims file. These records are not relevant to the Veteran’s claim for service connection for depressive disorder also claimed as memory loss, as they are silent for any complaints related to any chronic psychiatric disorders or symptoms, and the Veteran has primarily contended that his psychiatric disorder is related to his subsequent service in the Persian Gulf. Evidence added to the record since the April 1998 and January 2003 rating decisions includes the Veteran’s lay statements, VA treatment records, private treatment records, Social Security Administration (SSA) records, and VA examinations from March 2014. As noted above, in April 1998, the RO concluded that, while the Veteran was diagnosed with depressive disorder, the evidence of record failed to demonstrate that such had its onset during, or was otherwise related to, his military service. The newly received evidence includes the Veteran lay statements concerning his alleged in-service exposure to explosions, including an incident in which twenty-eight soldiers were killed. See, e.g., March 2014 VA Form 21-0781, Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD) Secondary to Personal Assault. During a March 2014 VA PTSD examination, the examiner concluded that, while the Veteran’s did not meet all the criteria for a diagnosis of PTSD, his alleged stressor was related to his fear of hostile military or terrorist activity. The Board finds that the lay statements concerning his in-service experiences and the March 2014 VA examination are new because they were not before the RO at the time of the April 1998 or January 2003 rating decisions. Furthermore, this evidence is material because, when considered with the previous evidence of record, it relates to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for depressive disorder also claimed as memory loss. Thus, because the evidence submitted is both new and material, his claim for service connection for depressive disorder also claimed as memory loss is reopened. REASONS FOR REMAND Pertinent to all claims on appeal, there appears to be outstanding VA treatment records which may contain information pertinent to the Veteran’s claims. The Veteran has consistently indicated that he received treatment at the VA Medical Center (VAMC) in San Juan, Puerto Rico since May 1991. See, e.g., December 2013 VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits. The only VA treatment records associated with the claims file, however, are dated from February 1992 to July 1995; and from May 2002 to January 2003. Additionally, in August 2016, the Veteran submitted VA radiological reports from May 2016 through August 2016. The Board also notes that the March 2014 VA mental health examination discussed a number of VA treatment records dating from October 2002 to March 2014. Thus, to ensure that there is an adequate record upon which to decide the Veteran’s claims, and because VA is considered to be in constructive possession of VA treatment records, a remand is necessary to obtain all VA treatment records from the VAMC in San Juan, Puerto Rico, dated from June 1991 to the present. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Entitlement to service connection for a lumbar spine disorder is remanded. With regard to the Veteran’s claim for service connection for a lumbar spine disorder, the Board notes that his claim for service connection was previously denied in April 1998 and January 2003 rating decisions. Because he did not initiate a timely appeal of those decisions, they are final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. § 3.104, 20.302, 20.1103 (2017). Nevertheless, following these rating decisions, relevant service treatment records were added to the claims file. See 38 C.F.R. § 3.156(c). Specifically, in July 2005 and January 2007, service records from the Veteran’s first period of active duty service from December 1982 to December 1985 were added to the record. Amongst those records was a March 1985 complaint of back pain, and an assessment of a muscle strain. As such, the Board finds that new and material evidence is not required to reopen the Veteran’s claim; rather his claim for service connection for a lumbar spine disorder is to be reconsidered on the merits. See id. To date, the Veteran has not been afforded a VA examination to determine whether his lumbar spine disorder is related to his military service. Review of his service treatment records reflect a number of complaints and treatment for low back pain. As noted above, in March 1985, he reported back pain and was assessed with a muscle strain. Treatment records from October 1990, January 1991, and April 1991, also noted the Veteran’s report of low back pain, and he indicated a history of low back pain in his April 1991 Report of Medical History. Given the evidence showing a current-diagnosed lumbar spine disorder, see August 2016 VA Radiological Report, the evidence of in-service complaints related to the Veteran’s lumbar spine, and his competent report of continuous symptoms since service, VA’s duty to assist by affording him VA examination has been triggered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Entitlement to service connection for an acquired psychiatric disorder is remanded. Initially, the Board notes that separate claims for service connection for PTSD and depressive disorder also claimed as memory loss now claimed as sleep disturbances were adjudicated in the February 2017; however, the Board has broadly recharacterized the claim as entitlement to service connection for an acquired psychiatric disorder to comport with the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009). In August 1995 and October 1997, the Veteran underwent VA examinations. Although he was diagnosed with depressive disorder, not otherwise specified (NOS), the examiner failed to provide an opinion as to whether that diagnosis was related to the Veteran’s military service. In March 2014, the Veteran underwent another VA examination. He was once again diagnosed with depressive disorder, NOS, and the examiner opined that such was less likely than not related to the Veteran’s military service, but instead related to his job-related difficulties mentioned in his mental health history. The examiner failed to provide any clinical rationale in support of this conclusion. A medical examination report must contain clear conclusions with supporting data, as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). Because the August 1995 and October 1997 VA examinations failed to provide an opinion as to whether the Veteran’s acquired psychiatric disorder was related to his military service, and because the March 2014 VA examination failed to provide a rationale for the negative opinion provided, the Board finds that a new VA examination is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Entitlement to an initial compensable rating for service-connected eczema is remanded. VA examinations dated in March 2014, May 2015, and February 2017, assessed the current nature and severity of the Veteran’s service-connected eczema. Concerning the treatment associated with this disability, each of the examiners noted that the Veteran’s treatment involved the use of topical corticosteroids on a constant or near-constant basis. The Veteran’s eczema is rated under 38 C.F.R. § 4.118, Diagnostic Code 7806 (2017). Recently, VA amended the criteria for rating the skin. With regard to the meaning of “systemic therapy” prior to the new definition of the term in the revised criteria, the Court in Johnson v. McDonald, 27 Vet. App. 497, 505 (2016) held that use of a topical steroid constituted “systemic therapy” within the meaning of Diagnostic Code 7806. In Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit reversed this decision and determined that “constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs” under Diagnostic Code 7806 is generally not inclusive of topical corticosteroids. Nevertheless, the Federal Circuit also held that a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, and the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case. Id. In Burton v. Wilkie, the Court found that, for a treatment to qualify as systemic, “[Diagnostic Code] 7806 requires a treatment to ‘pertain to or affect the body as a whole’ and to operate as ‘treatment of disease.’” No. 16-2037, 2018 U.S. App. Vet. Claims Lexis 1314 (Sept. 28, 2018) (citing Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017)). Thus, to qualify as a systemic therapy, the treatment must affect the entire body in its treatment of the condition at issue. In light of the Federal Circuit’s holding in Johnson and the Court’s holding in Burton, the Board believes a medical opinion is necessary to determine whether the Veteran’s use of topical corticosteroids, in this case, operates to affect his entire body as a whole in its treatment of his service-connected eczema, or whether the use of corticosteroids treats only a smaller, localized area. The matters are REMANDED for the following action: 1. Associate with the Veteran’s claims file all VA treatment records from the VAMC in San Juan, Puerto Rico, dated from June 1991 to the present. 2. Schedule the Veteran for a VA examination to determine whether his currently-diagnosed lumbar spine disorder had its onset during or is otherwise related to his military service. The record and a copy of this Remand must be made available to the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should take a history from the Veteran as to the progression of his claimed disability. Following a review of the entire record, the examiner should address the following question: Is it at least as likely as not (i.e., a 50 percent or greater probability) that any currently-diagnosed lumbar spine disorder had its onset during, or is otherwise related to, his active duty service, to include his in-service reports of low back pain in March 1985, October 1990, January 1991, and April 1991? In offering any opinion, the examiner must consider the full record, to include the Veteran’s lay statements concerning the onset and continuity of symptomatology. A clearly-stated rationale for any opinion offered should be provided. 3. Schedule the Veteran for a VA examination to determine whether any currently-diagnosed acquired psychiatric disorder had its onset during or is otherwise related to his military service. The record and a copy of this Remand must be made available to the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should take a history from the Veteran as to the progression of his claimed disability. Following a review of the entire record, the examiner should address the following questions: (a) Identify all current psychiatric disabilities, i.e., any disorder that has been present at any time since December 2013, even if not shown on the current examination. If PTSD is diagnosed, the stressor(s) to support such diagnosis must be identified. (b) With regard to any identified acquired psychiatric disorder, is it at least as likely as not (i.e., a 50 percent or greater probability) that such had its onset in, or is otherwise related to his period active service? In offering any opinion, the examiner must consider the full record, to include the Veteran’s lay statements concerning the onset and continuity of symptomatology. A clearly-stated rationale for any opinion offered should be provided. 4. Return the claims file to the examiner who conducted the February 2017 skin examination (or to another qualified physician if the February 2017 examiner is unavailable), to address the question posed below. The record and a copy of this Remand must be made available. The need for an additional examination is left to the discretion of the clinician selected to write the addendum opinion(s). Following a review of the entire record, to include the March 2014, May 2015, and February 2017 VA examination reports and the Veteran’s VA treatment record, the examiner should address the following: Does the Veteran’s use of topical corticosteroids on a constant or near-constant basis constitute a systemic therapy, such that application of the topical corticosteroids treats his service-connected eczema throughout his entire body; or are the effects of the corticosteroids localized to the area upon which they are applied? A clearly-stated rationale for any opinion offered should be provided. 5. Thereafter, and after any further development deemed necessary, the issues on appeal should be reajudicated. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD James R. Springer, Associate Counsel