Citation Nr: 18145456 Decision Date: 10/30/18 Archive Date: 10/29/18 DOCKET NO. 16-00 086 DATE: October 30, 2018 ORDER The Veteran’s petition to reopen a claim for entitlement to service connection for systemic lupus erythematosis (SLE) is granted. The Veteran’s petition to reopen a claim for entitlement to service connection for immune diseases is granted. REMANDED Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for vertigo is remanded. Entitlement to service connection for SLE is remanded. Entitlement to service connection for immune diseases is remanded. Entitlement to service connection for a skin condition is remanded. Entitlement to service connection for diabetes is remanded. Entitlement to service connection for peripheral neuropathy is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety, is remanded. Whether new and material evidence has been presented in order to reopen a claim for entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. VA has received previously unconsidered evidence since a final September 2010 rating decision that confirmed and continued the denial of service connection for SLE that relates to the basis for the prior denial and raises a reasonable possibility of substantiating the claim. 2. VA has received previously unconsidered evidence since a final September 2010 rating decision that confirmed and continued the denial of service connection for immune diseases that relates to the basis for the prior denial and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the service connection claim for SLE. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. New and material evidence has been received to reopen the service connection claim for immune diseases. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 18, 1978 to December 15, 1978 with additional service in the Army National Guard of Texas. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Procedural History and Finality Issues By way of history, in relevant part, the Veteran’s claims for entitlement to service connection for SLE, immune deficiencies, depression, anxiety, diabetes, vertigo, fibromyalgia, and a skin disorder were denied in a September 2010 rating decision. The Veteran filed a timely notice of disagreement (NOD) to the denial of the service connection claims for diabetes, depression, fibromyalgia, a skin disorder, and vertigo in March 2011, but was not provided with a statement of the case for these issues. In a June 2011 rating decision, the RO denied the Veteran’s September 2010 claim for entitlement to service connection for PTSD with anxiety. In November 2011, the Veteran filed a petition to reopen claims for entitlement to service connection for SLE, fibromyalgia, diabetes, PTSD, and anxiety/depression. In response to the Veteran’s November 2011 claim, the RO provided her with a letter in March 2012, notifying her that the June 2011 rating decision denying her claim for PTSD with anxiety had not become final, and that she needed to submit evidence in favor of her claim. The letter also informed her that the September 2010 rating decision denying her claims for service connection for SLE, fibromyalgia, diabetes, anxiety, and depression, had become final. However, as noted above, the Veteran filed a timely March 2011 NOD with regard to the denial of the claims for entitlement to service connection for fibromyalgia, diabetes, anxiety, and depression. The RO then issued a rating decision in July 2013, which reopened and denied the claims for entitlement to service connection for fibromyalgia, diabetes, and PTSD with anxiety. The Board finds that, notwithstanding July 2013 rating decision, the September 2010 rating decision was not final with regard to the Veteran’s claims for which she filed a timely NOD—entitlement to service connection for depression, anxiety, diabetes, vertigo, fibromyalgia, and a skin disorder. As such, these issues are before the Board and need not be reopened. Of note, the Veteran’s claims for entitlement to service connection for SLE and immune deficiencies were subject to a final September 2010 rating decision and her claim for entitlement to service connection for PTSD was subject to a final rating decision most recently in July 2013. Finally, this case comes to the Board on appeal from a June 2015 rating decision which denied entitlement to service connection for immune diseases and peripheral neuropathy, and confirmed and continued denial of service connection for SLE, diabetes, fibromyalgia and PTSD with anxiety. The RO found that new and material evidence had not been presented sufficient to reopen claims for entitlement to service connection for vertigo, a skin condition, depression and anxiety. Petition to reopen claims for entitlement to service connection for SLE and immune diseases Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). The Veteran contended that she had SLE and specific immune deficiencies as a result of exposure to polychlorinated biphenyls (PCBs) while serving at Fort McClellan in 1978. The RO denied the Veteran’s claims for entitlement to service connection for SLE and an immune deficiency in a September 2010 rating decision. The RO found that there was no evidence in her service treatment records that a chronic condition—including SLE or an immune deficiency—was incurred or aggravated by military service, that she was diagnosed with SLE or an immune deficiency within one year of your discharge of service, or that she received continuous treatment from discharge to present for SLE or an immune deficiency. Based on the evidence of record, the RO denied her claim for service connection for SLE and a specific immune deficiency secondary to PCB exposure as the evidence did not show that the disorders were caused by service. The Veteran did not submit a notice of disagreement with the September 2010 denial of these claims, and no new and material evidence was submitted within a year of this rating decision. In November 2010, the Veteran filed a petition to reopen the claim for entitlement to service connection for SLE. In a July 2013 rating decision, the RO reopened and denied the claim, finding that the evidence continued to show SLE was not incurred in or aggravated by military service. The RO reviewed medical evidence from private doctors and VA medical records discussing the Veteran’s symptoms, but found that no relation to service was found. As is explained below, new and material evidence was submitted within one year of this decision; as such, the July 2013 rating decision did not become final. In a January 2014 statement, the Veteran alleged exposure to Agent Orange. In addition, VA medical records reflect that she underwent a VA Agent Orange Registry examination in June 2014. The Board finds that this evidence is new because it was not before the adjudicator in September 2010. The Board also finds that the new evidence is material because it raises the possibility that the Veteran’s SLE or immune deficiency may be service-connected based on exposure to Agent Orange. See Shade, 24 Vet. App. 110. The Board accordingly finds that new and material evidence has been received to reopen the claims of service connection for SLE or immune deficiency. Hence, the appeals to this extent are allowed. REASONS FOR REMAND As an initial matter, the Veteran has contended that she was discharged from active duty in December 1979 due to vertigo. Her separation Reports of Medical Examination and History reflect that the discharge was an “Administrative Emergency” and that it was a dependency discharge under Chapter 6 Sec II; AR 635-200. However, her service personnel records do not reflect any details about the circumstances of her discharge. On remand, an attempt to obtain separation documents, reflecting the circumstances for her early discharge in December 1979, should be made. The record includes a Report of Separation and Record of Service reflecting that the Veteran had service in the Army National Guard of Texas and as a Reserve of the Army from April 1979 to April 1986. While there are documents reflecting the Veteran’s location and duties during this time, there are no service treatment records included these records. On remand, service treatment records from this period of service should be obtained and added to the record. VA medical records reflect that the Veteran was provided with a VA Agent Orange Registry examination in June 2014; however, a copy of this examination report is not in the record. On remand, the report from this examination should be added to the record. The Board notes that the most recent private treatment records in the claims file were received by VA in May 2015 and the most recent VA records in the claims file are dated in October 2015. As it appears that the Veteran has been in receipt of ongoing treatment for her claimed disorders, these records should be obtained on remand. Fibromyalgia, Vertigo, SLE, Skin Condition, Diabetes and Peripheral Neuropathy The Veteran has contended that she was ill during her active duty at Fort McClellan, experiencing weakness, breathing problems, overall pain, and dizziness, and that these were the first signs of SLE. Her service treatment records reflect reports of dizziness and pain and that she underwent an appendectomy while in service. She has also contended that her currently claimed disabilities are due to exposure to PCBs and Agent Orange while in service at Fort McClellan. VA has a duty to assist the Veteran by attempting to verify the claimed Agent Orange exposure. The Veterans Benefits Administration (VBA) Manual (M21-1) provides a procedure for verifying exposure to herbicides in locations other that the Republic of Vietnam or along the demilitarized zone (DMZ) in Korea. See M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Subsection 7. This procedure requires: (1) asking the appellant for the approximate dates, location, and nature of the Veteran's alleged exposure; (2) furnishing the detailed description of exposure to Compensation Service for confirmation; and (3) requesting a review of the Department of Defense (DOD) inventory of herbicide operations to determine whether herbicides were used as alleged. If Compensation Service’s review confirms that herbicides were used as alleged, then a determination must be made as to whether service connection is in order. If Compensation Service's review does not confirm that herbicides were used as alleged, then a request must be sent to the Joint Services Records Research Center (JSRRC) for verification of exposure to herbicides. It does not appear that the procedural requirements set out in VBA M21-1 have been completed with regard to the Veteran’s claimed exposure to Agent Orange. Thus, a remand is required in order to determine whether the Veteran was exposed to an herbicide or some other toxic chemical and to obtain additional medical opinion. Psychiatric Disorder, to include Depression, and Anxiety The Veteran contends that she has a currently diagnosed psychiatric disorder that is related to service. VA medical records reflect current diagnoses of depression and anxiety. Service treatment records reveal that in June 1978, she was seen for “nerves.” The Board finds that the Veteran should be provided with a VA examination to determine whether any currently diagnosed psychiatric disorder is related to service. The issue of whether new and material evidence has been received to reopen a previously denied claim of service connection for PTSD is inextricably intertwined with this claim. The matters are REMANDED for the following action: 1. Obtain the Veteran’s December 1979 separation documents, indicating the circumstances of her early discharge as an “Administrative Emergency” and dependency discharge under Chapter 6 Sec II; AR 635-200. 2. Obtain complete service treatment records from the Veteran’s service in the Army National Guard of Texas and as a Reserve of the Army from April 1979 to April 1986. 3. Obtain a copy of the Veteran’s Agent Orange Registry examination conducted in June 2014 and add to the claims file. 4. Ask the Veteran to complete a VA Form 21-4142 for all private providers that have treated the disorders on appeal since May 2015. Make two requests for the authorized records from any identified facilities/providers, unless it is clear after the first request that a second request would be futile. 5. Obtain the Veteran’s VA treatment records reflecting treatment since October 2015. 6. Follow M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Subsection 7 or its equivalent and request herbicide exposure verification from the Department of Defense. If the Department of Defense does not confirm herbicide exposure, refer the Veteran's pertinent information to the United States Army and Joint Services Records Research Center (JSRRC) or other appropriate entity with a request for verification of exposure to herbicides or other hazardous or toxic chemicals. All documentation sent and received by the AOJ must be associated with the claims file. 7. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s claimed disabilities. First, the examiner must determine whether the Veteran has current diagnoses (meaning diagnosed since March 2009) of SLE or other immune deficiencies, diabetes, fibromyalgia, peripheral neuropathy, a skin disorder, and a disorder manifested by vertigo. For each diagnosed disorder, the examiner must opine as to whether it is at least as likely as not related to an in-service injury, event, or disease to include as due to in-service exposure to PCB’s or agent orange (if such exposure has been confirmed). The examiner must address the Veteran’s contentions that she experienced symptoms including weakness, breathing problems, overall pain, and dizziness, and that these were the first signs of SLE and that her service treatment records reflect reports of dizziness and pain and that she underwent an appendectomy while in service. The examiner must opine as to whether it is at least as likely as not that these symptoms were early manifestations of any of his currently diagnosed disabilities. 8. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any currently diagnosed psychiatric disorders, to include depression and anxiety. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including her report of “nerves” while in service in June 1978. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Harrigan Smith