Citation Nr: 18147577 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 16-35 622 DATE: November 5, 2018 ORDER The claim for service connection for systemic lupus erythematosus (lupus) disability is reopened; the appeal is granted to this extent only. REMANDED ISSUE Entitlement to service connection for lupus is remanded. Entitlement to service connection for nephritis, to include as secondary to lupus is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACTS 1. The October 2007 rating decision that denied service connection for lupus is final. 2. New and material evidence has been received to reopen the claim for service connection for lupus. CONCLUSIONS OF LAW 1. The October 2007 rating decision that denied service connection for lupus is final. 38 U.S.C.§ 7104 (b); 38 C.F.R. § 20.1103. 2. New and material evidence has been received, and the claim for service connection for lupus may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Appellant had active duty for training (ACDUTRA) in the Army National Guard from June 1999 to December 1999. She served in the Army National Guard and Army reserves from December 1998 to January 2007. New and Material The RO’s determination not appealed within one year becomes a final decision, which may only be reopened with a showing of new and material evidence. 38 U.S.C. §§ 5108; 7105. “New” evidence means evidence not previously submitted to the RO. On the other hand, “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 already of record at the time of the last denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). This is a “low threshold” in which the phrase “raises a reasonable possibility” should be interpreted as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). In this case, an October 2007 rating decision denied service connection for lupus, which became final because it was not appealed within one year. In October 2007 rating decision, the claim was denied because the evidence did not show that the Appellant had lupus in service. Therefore, the Board finds that the in-service incident or the nexus elements of service connection were not established by the evidence of record at that time. Since the October 2007 rating decision, the Appellant was provided an examination in June 2015, where she reported that her lupus was diagnosed in January 2002. The examiner provided a positive nexus opinion. This medical opinion is new evidence that was not previously considered by the RO. To the extent it goes towards establish a nexus element of service connection claim, it is material evidence. In light of the low threshold for reopening a claim noted above, the Board finds that the June 2015 medical opinion is new and material evidence that warrants reopening the claim. REMANDED ISSUE The Board regrets further delay, but additional development is necessary before the claim can be adjudicated. The Appellant served in the National Guard from December 1998 to April 2002, and the Army Reserve from April 2002 to January 2007. The Appellant’s DD-214 reflects that she had ACDUTRA from June 1999 to December 1999. In addition, the record contains a Appellants Affairs/Department of Defense Identity Repository (VADIR) record showing the Appellant’s period of service National Guard and Army Reserve. However, the VADIR does not specify the Appellant’s period of ACDUTRA and Inactive duty training (INACDUTRA). Therefore, a remand is necessary to ascertain the details about the Appellant’s service. Furthermore, review of the record shows that the Appellant’s complete service treatment record (STR) is not in the claims file. Although a formal finding of unavailability of STRs was issued in August 2007, a subsequent report of contact indicates that such memo no longer applies in light of the Appellant’s report of her period of service. Upon remand, the RO should attempt to obtain the Appellant’s complete STRs and indicate if the records are unavailable. A. Lupus As to the Appellant’s claim for service connection for her lupus, the Board finds the June 2015 medical opinion inadequate because the examiner states that the Appellant was diagnosed with lupus while she was in the military, but the examiner did have the benefit of considering the specific date of the Appellant’s ACDUTRA when issuing the opinion. The examination opinion cites to the period from 1999 to 2007, and not to a specific period of ACDUTRA. B. Nephritis With respect to the claim nephritis, the Appellant underwent a VA examination in July 2015, where the examiner remarked that an examination by the Appellant’s nephrologist is necessary to confirm diagnosis of the condition. Furthermore, during this examination, the Appellant reported that her nephritis was aggravated by her Lupus and a medical opinion regarding this contention has not been obtained. For this reason, a remand is necessary to obtain an adequate medical examination. C. TDIU Finally, because a decision on the remanded issues of service connecition for lupus and nephritis could significantly impact a decision on the issue of entitlement for service connection for TDIU, the issues are inextricably intertwined, and a remand is required. The matter is REMANDED for the following action: 1. Take the necessary steps to verify specific dates of the Appellant’s active duty for training (ACDUTRA), and/or inactive duty for training (INACDUTRA). This specifically includes classifying all periods of ACDUTRA, and INACDUTRA, and the stating the relevant branch of service. A Chronological Statement of Retirement Points or VADIR Information Report is NOT acceptable. All records/responses received should be associated with the claims file. A memorandum should be issued listing each period of service, including even brief periods of active duty for training and inactive duty for training, and this information must be made available to all VA examiners prior to completion of VA examination requests listed below. 2. Take the necessary steps to obtain complete service treatment records. If the AOJ cannot locate any required records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. 3. After completion of directives #1-#2, schedule the Appellant for an examination by an appropriate clinician to determine the nature and etiology of the Appellant’s lupus. After reviewing the claims file in its entirety, the examiner should answer the following: Is the Appellant’s systemic lupus erythematosus at least as likely as not (50 percent or greater probability) a disease incurred during a period of ACDUTRA? The examiner must provide a complete explanation for all opinions. If the examiner is unable to render the requested opinion without resorting to speculation, he/she must state whether there is inadequate factual information, whether the question falls beyond the knowledge of the examiner, whether the question falls beyond the scope of the medical community, or another reason. 4. After completion of directives #1-#3, schedule the Appellant for an examination by an appropriate clinician to determine the nature and etiology of the Appellant’s nephritis. After reviewing the claims file in its entirety, the examiner should answer the following questions: Does the Appellant have nephritis? If so, is the Appellant’s nephritis at least as likely as not (50 percent or greater probability) a disease incurred during a period of ACDUTRA? In the alternative, if the Appellant has nephritis, is it at least as likely as not (50 percent or greater probability) caused by her systemic lupus erythematosus; and Is it at least as likely as not (50 percent or greater probability) that the Appellant’s nephritis has been aggravated by her systemic lupus erythematosus. The examiner must provide a complete explanation for all opinions. If the examiner is unable to render the requested opinion without resorting to speculation, he/she must state whether there is inadequate factual information, whether the question falls beyond the knowledge of the examiner, whether the question falls beyond the scope of the medical community, or another reason. 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement for a TDIU. If the benefit sought is not granted to the Appellant’s satisfaction, send the Appellant a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.SOLOMON