Citation Nr: 18145976 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 08-07 968 DATE: October 30, 2018 ORDER New and material evidence has not been received the claim of entitlement to service connection for hypertension is not reopened. New and material evidence has been received to reopen the claim of entitlement to service connection for pseudofolliculitis barbae. Entitlement to service connection for pseudofolliculitis barbae is granted. FINDINGS OF FACT 1. A May 2009 rating decision denied service connection for hypertension; the Veteran did not timely appeal this denial, and new and material evidence was not submitted within the one year appeal period following the issuance of that decision. 2. Evidence received subsequent to the expiration of the appeal period with regard to the denial of service connection for hypertension does not relate to an unestablished fact necessary to substantiate the claim. 3. A May 2009 rating decision denied service connection for pseudofolliculitis barbae; the Veteran did not timely appeal this denial, and new and material evidence was not submitted within the one year appeal period following the issuance of that decision. 4. Evidence received subsequent to the expiration of the appeal period with regard to the denial of service connection for pseudofolliculitis barbae relates to an unestablished fact necessary to substantiate the claim. 5. The competent and probative evidence of record demonstrates that the Veteran’s pseudofolliculitis barbae began during and has been continuous since his active duty service. CONCLUSIONS OF LAW 1. The May 2009 rating decision which denied entitlement to service connection for hypertension is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.202, 20.302, 20.1103. 2. The criteria for whether new and material evidence has been received to reopen the claim of entitlement to service connection for hypertension have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The May 2009 rating decision which denied entitlement to service connection for pseudofolliculitis barbae is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.202, 20.302, 20.1103. 4. The criteria for whether new and material evidence has been received to reopen the claim of entitlement to service connection for pseudofolliculitis barbae have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. Pseudofolliculitis barbae was incurred inservice. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1977 to October 1980. As an initial matter, the Board notes that the Veteran’s complete service treatment records and service personnel records are not available through no fault of his own. In cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit of the doubt rule where applicable. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The analysis below has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). In September 2014, the Veteran testified at a hearing before Veterans Law Judge Brown, and in December 2017 he testified at a hearing before Veterans Law Judge Martin; transcripts of both hearings are associated with the evidence of record and the Veteran discussed the issue on appeal in the instant remand at both of those hearings. When a Veteran has had a hearing before two separate Veterans Law Judges covering one or more of the same claims on appeal, a third Veterans Law Judge is assigned to participate in a panel decision with respect to those claims; accordingly, a third Veterans Law Judge has been assigned to participate in a panel decision in this case. A Veteran has the right to a hearing before all three VLJs involved in the panel decision. 38 C.F.R. § 20.707. In a May 2018 letter to the Veteran, he was offered the opportunity to testify at another hearing before the third Veterans Law Judge who would be assigned to a panel to decide his appeal. Later that month the appellant waived his right to a third hearing. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). Accordingly, the Board will proceed with appellate review of the claim. The issue of whether service connection is warranted for a psychiatric disorder, to include PTSD, is addressed in a separate Board decision.   Legal Criteria Petitions to Reopen Generally, rating decisions that are not timely appealed are final. 38 U.S.C. § 7105. An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. See 38 C.F.R. § 3.156. The question of whether new and material evidence has been received to reopen a previously denied claim must be addressed by the Board in the first instance, because the issue goes to the Board’s jurisdiction to reach and adjudicate the underlying claim on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise 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 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.” See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The focus is not exclusively on whether evidence remedies the principal reason for denial in the last prior final decision, but on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Id. at 118. For the purpose of establishing whether new and material evidence has been submitted, the Court has also held that the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996). Service Connection Service connection may be established for disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, in order to prevail on the issue of service connection the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Factual Background and Analysis Although all the evidence of record has been thoroughly reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). The analysis in this decision focuses on what the evidence shows or fails to show with respect to the matters decided herein. The Veteran should not assume that pieces of evidence not explicitly discussed herein have been overlooked. See Allday v. Brown, 7 Vet. App. 517, 527 (1995) (finding that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for hypertension Service connection for hypertension was denied in a May 2009 rating decision because the evidence failed to show a nexus between his hypertension and his active duty service. The Veteran did not file any statement indicating disagreement with that decision or submit any additional relevant evidence within the appeal period. The relevant evidence of record at the time of the May 2009 rating decision included the Veteran’s VA treatment records, statements in support of his claim, and claim for compensation benefits. This evidence did demonstrate that the Veteran had a diagnosis of hypertension in 2009 but did not demonstrate any nexus between his hypertension and active service. In January 2013, the Veteran filed a petition to reopen his claim for service connection for hypertension. In June 2013 rating decision VA determined new and material evidence had not been submitted to reopen his claim and confirmed and continued the previous denial. Evidence added to the record subsequent to the May 2009 rating decision consists of, in pertinent part, treatment records which continue to document that the Veteran has a diagnosis of, and is being treated for, hypertension. The Board finds this evidence is new because it was not before adjudicators at the time of the May 2009 rating decision. Significantly, this evidence is not material. The new evidence merely shows the Veteran continues be treated for hypertension; it does not demonstrate that hypertension began during his active duty service, that it was compensably disabling within one year of separating from active duty, or that it is related to his active duty service. Accordingly, the newly submitted evidence is not material as it does not raise a reasonable possibility of substantiating the Veteran’s claim; therefore, the petition to reopen the claim for service connection for hypertension must be denied. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for pseudofolliculitis barbae Service connection for pseudofolliculitis barbae was denied in a May 2009 rating decision because the evidence failed to show a nexus between his condition and his active duty service. The Veteran did not file any statement indicating disagreement with the May 2009 decision or submit any additional relevant evidence within the appeal period. The relevant evidence of record at the time of the May 2009 rating decision included the Veteran’s VA treatment records, statements in support of his claim, and claim for compensation benefits. This evidence showed that the Veteran had a diagnosis of pseudofolliculitis barbae but did not demonstrate any nexus between his disability and his active service. In January 2013, the Veteran filed a petition to reopen his claim for service connection for pseudofolliculitis barbae. In June 2013 rating decision, VA determined that new and material evidence had not been submitted to reopen his claim and confirmed and continued the previous denial. Evidence added to the record subsequent to the May 2009 rating decision consists of, in pertinent part, a September 2017 letter from a VA medical provider who noted that the Veteran had pseudofolliculitis barbae, and that he reported having pseudofolliculitis barbae while on active duty. Based on this history the examiner opined that it was possible that pseudofolliculitis barbae was related to the appellant’s active duty service. The Board finds this evidence is new because it was not before adjudicators at the time of the May 2009 rating decision. The Board also finds this evidence is material as it supports a nexus between the Veteran’s condition and his active service, the element of service connection which was missing at the time of the May 2009 denial. Accordingly, the Board finds the newly submitted evidence raises a reasonable possibility of substantiating the Veteran’s claim; therefore, the claim of entitlement to service connection for pseudofolliculitis barbae is reopened. 3. Entitlement to service connection for pseudofolliculitis barbae The Veteran claims his pseudofolliculitis barbae began during service and that he has continued to suffer from this condition since separating from active duty service. Specifically, he contends that he was put on a shaving profile during service. As noted previously, the Veteran’s complete service treatment records are not currently available. Some medical conditions are capable of lay observation and diagnosis. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). Here, the Board finds that the Veteran is competent to report having a rash after shaving, and that he is competent to state that this rash has continued since service. See McCartt v. West, 12 Vet. App. 164, 167 (1999) (implying that a skin rash may be the type of condition lending itself to lay observation and satisfy the nexus requirement). The Board also finds that the Veteran is credible regarding the onset, type, and duration of symptoms he has experienced. The record contains a September 2017 medical opinion in which the examiner determined it was possible that pseudofolliculitis barbae was related to the appellant’s active duty service. The Board acknowledges that this opinion is based on the Veteran’s reports of his history of irritation and inflammation after shaving during and since service. Again, however, the Veteran’s complete service treatment records are not available, and he is competent to report his lay observations. Accordingly, finding there to be a reasonable doubt, the Board will grant entitlement to service connection for pseudofolliculitis barbae. Due Process Considerations With respect to the Veteran’s petition to reopen his claim for service connection for hypertension, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). VA’s duty to notify was satisfied by letters dated January 2013 and March 2017. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The duty to assist the Veteran has also been satisfied in this case. The VA has obtained the Veteran’s available service treatment records, service personnel records, Social Security Administration disability benefit records, and VA treatment records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. As discussed previously, the Veteran’s complete service treatment records from his active duty and Reserve service have been unable to be located; he has been informed of this pursuant to VA regulation. See 38 C.F.R. § 3.159. Although the Veteran was not afforded a VA examination with respect to his petition to reopen his claim, VA does not have a duty to provide him with one in such a circumstance. See Paralyzed Veterans of Am. V. Sec’y of Veterans Affairs, 345 F.3d 1334, 1342-43 (Fed. Cir. 2003) (holding that there is no duty to provide a VA examination or obtain a medical opinion with respect to the claim to reopen). CONTINUED ON NEXT PAGE   As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jessica O'Connell, Associate Counsel