Citation Nr: 18147967 Decision Date: 11/08/18 Archive Date: 11/06/18 DOCKET NO. 16-36 404 DATE: November 8, 2018 ORDER New and material evidence having not been received, reopening of the claim of entitlement to service connection for an acquired psychiatric disorder is denied. New and material evidence having been received, reopening of the claim of entitlement to service connection for low back disability is granted. New and material evidence having been received, reopening of the claim of entitlement to service connection for tinea unguium, claimed as a foot fungus, is granted. Entitlement to service connection for tinea unguium, claimed as a foot fungus, is denied. REMANDED Entitlement to service connection for a low back disability is remanded. FINDINGS OF FACT 1. A June 2011 rating decision denied the Veteran’s claim to reopen his claim of entitlement to service connection for an acquired psychiatric disorder, to include depression. Evidence received since this rating decision includes lay statements from the Veteran, his family, and social service workers, which are redundant of evidence that was of record at the time of this last final denial. 2. A June 2011 rating decision denied the Veteran’s claim to reopen his claim of entitlement to service connection for a lower back disability. Evidence received since this rating decision include lay statements and a November 2017 private medical opinion. This evidence was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. A June 2011 rating decision denied the Veteran’s claim for entitlement to service connection for fungus of both feet. Evidence received since this rating decision include VA medical treatment records. This evidence was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 4. A preponderance of the evidence does not establish that the Veteran had any foot fungus or infection in service. CONCLUSIONS OF LAW 1. New and material evidence sufficient to reopen the claim of entitlement to service connection for an acquired psychiatric disorder has not been submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence sufficient to reopen the claim of entitlement to service connection for a lower back disability has been submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence sufficient to reopen the claim of entitlement to service connection for tinea unguium has been submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for entitlement to service connection tinea unguium have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training in the United States Army National Guard from July 1978 to November 1978. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. As a preliminary matter, the Board notes that the Veteran originally requested a Board hearing in his July 2016 VA Form 9. However, in February 2018, the Veteran cancelled his hearing request. Accordingly, the Board will proceed with the Veteran’s claims without a hearing. Finally, the Board notes that there is an outstanding January 2018 motion to advance the case on the docket (AOD) based on homelessness. There was no documentation associated with this AOD motion. An AOD motion may be granted if, among other factors, the Veteran is under “severe financial hardship.” 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). At this time, there is insufficient evidence to demonstrate financial hardship. However, the Board notes that this determination does not prevent the Veteran from filing another AOD motion, and submitting relevant supporting evidence, at a later date. New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105, 7266; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing 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 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. 38 C.F.R. § 3.156. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. 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. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted 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, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Id. at 117-18. Acquired Psychiatric Disorder The Veteran contends that new and material evidence sufficient to reopen his claim for entitlement to service connection for an acquired psychiatric disorder has been submitted. The Board notes that this disability was originally denied in a September 2005 rating decision. The RO acknowledged that the Veteran was being treating for an acquired psychiatric disorder, however, as it was determined that the Veteran had a preexisting psychiatric disorder that was not aggravated during service, service connection was denied. Although the Veteran’s entrance examination was negative for any psychiatric disability, the evidence of record at the time established that the Veteran had shot himself in the stomach as an attempted suicide two years prior to service. The Veteran was last denied entitlement to service connection for an acquired psychiatric disorder in a June 2011 rating decision, as no new and material evidence had been submitted since the last prior final rating decision. The Veteran filed a timely notice of disagreement, and in November 2013 was issued a statement of the case continuing the denial. The Veteran subsequently filed a VA Form 9 in February 2014; however, this was not timely. Thus, the June 2011 rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The Veteran filed a new claim to reopen his acquired psychiatric disorder claim in April 2015, which was denied in the August 2015 rating decision currently on appeal, as there was no new and material evidence. Evidence received since the June 2011 rating decision includes lay statements from the Veteran, his family, and social workers, as well as VA treatment records. The Board finds that although this evidence is new, it is not material to the Veteran’s claim and is redundant of the evidence already of record at the time of the last prior final decision. Specifically, the VA treatment records confirm that the Veteran currently has a diagnosis of depressive disorder. A May 2018 statement from a social service coordinator who had evaluated the Veteran also confirmed a diagnosis of depression. A statement from the Veteran’s brother-in-law indicated that the Veteran had “battled depression and the feeling of rejection for most of his childhood and adulthood.” A statement from the Veteran’s sister detailed his depression and attempted suicide prior to service. All this evidence, though new, is not material to the Veteran’s claim, as it goes to establish an element of service connection—a current disability—that was already established at the time of the June 2011 denial. The new evidence does not raise a reasonable possibility of substantiating the Veteran’s claim, as the RO found that the acquired psychiatric disorder clearly and unmistakably existed prior to service and clearly and unmistakably was not aggravated during service, and this new evidence relates to the Veteran’s current disability and not towards aggravation of a preexisting disability. Accordingly, the Board finds that reopening of the Veteran’s claim for entitlement to service connection for an acquired psychiatric disorder is not warranted. Low Back Disability The Veteran contends that new and material evidence sufficient to reopen his claim for entitlement to service connection for a low back disability have been submitted. The Board notes that this disability was originally denied in a February 1979 rating decision, as the Veteran’s low back disability was found to have preexisted service. In June 2003, the Board denied entitlement to service connection for the low back disability and found that the low back disability clearly and unmistakable preexisted service and underwent no chronic increase in severity during active service due to aggravation. The Veteran was last denied entitlement to service connection for a low back disability in a June 2011 rating decision, as no new and material evidence had been submitted since the last prior final rating decision. As previously explained, the Veteran filed a timely notice of disagreement to the June 2011 rating decision, but did not file a timely VA Form 9 to the November 2013 statement of the case. Thus, the June 2011 rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The Veteran filed a claim to reopen his claim for entitlement to service connection for a lower back disability in April 2015, which was denied in the August 2015 rating decision currently on appeal, as there was no new and material evidence. Evidence associated with the claims file since the last prior denial includes VA treatment records, lay statements, and a November 2017 private medical opinion. Relevant evidence includes statements from the Veteran’s sister indicating that the Veteran reported worsening back pain in service. Further, the November 2017 private medical opinion indicated that the Veteran’s lumbar radiculopathy was related to his history of falls and the physical training routines while on active duty. It is material because it relates to an unestablished fact necessary to establish the Veteran’s claim. Additionally, the evidence is neither cumulative nor redundant, as this evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Accordingly, for all the above reasons, the Veteran’s claim for entitlement to service connection for a low back disability is reopened. Tinea Unguium The Veteran contends that new and material evidence sufficient to reopen his claim for entitlement to service connection for tinea unguium has been submitted. The Board notes that this disability was originally denied in the June 2011 rating decision, as there was no evidence of a current disability, or of any in-service disease or injury. As previously discussed, as the Veteran did not file a timely VA Form 9, this rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The Veteran filed a claim to reopen his claim for entitlement to service connection for tinea unguium in April 2015, which was denied in the August 2015 rating decision currently on appeal. Evidence received since this rating decision includes VA treatment records indicating a current diagnosis of tinea unguium. As this evidence relates to a previously unestablished element of service connection, a current disability, and is not cumulative nor redundant, the Board finds it sufficient new and material evidence to reopen the Veteran’s claim. See 38 C.F.R. § 3.156(a). Accordingly, the Veteran’s claim for entitlement to service connection for tinea unguium is reopened. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Active military, naval, or air service includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). Because the evidence establishes that the Veteran served in active duty for training, his service will be considered as active duty. In general, service connection requires the following: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Here, the Veteran maintains that he is entitled to service connection for tinea unguium, claimed as a foot fungus. A review of the record reveals that the Veteran has a current diagnosis of tinea unguium; thus, a current disability for this claim has been established. However, the Board finds that the Veteran’s claim must fail, as a preponderance of the evidence of record does not establish the incurrence of an in-service foot fungus disease or injury. The Veteran claimed in an April 2015 statement that he received treatment for a foot fungus in service, and that this disability continued to this day. However, the evidence of record weighs against the Veteran’s claim. Specifically, upon review of the Veteran’s service treatment records, there is no indication of any reports of, or treatment for, a foot fungus. Further, the first instance in the numerous medical records associated with claims file of reports of a foot fungus is in February 2011—over thirty years after the Veteran’s separation from service. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and entitlement to service connection for tinea unguium is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Finally, the Veteran maintains that he is entitled to service connection for his low back disability. He acknowledges that he had a preexisting back injury prior to service, specifically a bullet lodged in his spine, but he claimed that he injured his back when he fell during training, which aggravated his back disability. For the reasons discussed below, the Board finds that taking into consideration the new evidence associated with the claim, a remand is necessary to obtain a new medical opinion. The Board notes the Veteran has been diagnosed with degenerative joint disease of the cervical and lumbosacral spine, multilevel disc disease, status-post gunshot wound to the abdomen with bullet fragment remaining adjacent to L4 vertebra, and chronic low back pain. Thus, the questions that remain before the Board are first whether the low back disability was preexisting, and if so, whether this preexisting disability was clearly and unmistakably not aggravated during service. A May 1978 Report of Medical History completed by the Veteran at the time of enlistment denied any history of recurrent back pain, stomach or intestinal trouble. An October 1978 notation in his service treatment records reflects the Veteran reporting back pain, and offered a history of a bullet in the back two years prior to service. An October 1978 Narrative Summary in the Veteran’s service treatment records noted that the Veteran reported back pain, and provided a medical history of sustaining a gunshot wound to the abdomen 1 ½ years prior, with the bullet lodging next to the lumbar spine. He further related that since the time of the injury, he had a sharp, right-sided back pain which had been aggravated by motion, without nay neurological complaints. There were no reports of intercurrent injury. Upon examination, the Veteran was diagnosed with chronic back pain, secondary to a gunshot wound. The Board notes that there is no indication in the service treatment records of any in-service injury to the Veteran’s back. Of record are private medical records from May 1975, prior to service, reflecting the Veteran presenting with a self-inflicted gunshot wound to the right abdomen. Imaging studies revealed that the bullet fragments were in the vicinity of the right side of the fourth lumbar vertebra. Private medical records post-service from July 1985 reflect the Veteran presenting to the emergency department with a pain in his back due to a slip-and-fall. Upon examination, the Veteran was diagnosed with a contusion of the occiput and lumbosacral area. In a September 1985 letter, the Veteran’s private physician recounted that the Veteran reported that while in the military, he fell and aggravated his back in training, and that after the injury, the medical review board discharged him from service. Also of record are private treatment records reflecting that the Veteran was seen for reports of cervical, thoracic, and lumbar pain from a June 1996 motor vehicle accident. On June 1996 imaging study, the Veteran was not found to have a fracture or dislocation. However, a metallic bullet fragment was found to be embedded adjacent to the L4 vertebral body. The Veteran reported that he had a bullet wound to his back when he was 18, he denied any other traumas or injuries. The Veteran was provided a VA spine examination in August 2001. The Veteran reported that he had a gunshot wound with an entrance wound through the abdomen on the right side prior to service, and he gave a history of a fall while in service when he was climbing up or jumping up poles, and since then he had back pain. The examiner reviewed the Veteran’s medical history and indicated that through the years, the Veteran had been seen in multiple clinics multiple times due to continued back pain. Initially due to his gunshot wound, but later due to the 1985 slip-and-fall, and 1996 car accident. On examination, the VA physician provided a diagnosis of degenerative joint disease of the cervical and lumbosacral spine, multilevel disc disease, status-post gunshot wound to the abdomen with bullet fragment remaining adjacent to L4 vertebra, and chronic low back pain. However, the examiner did not provide an opinion as to whether the Veteran’s low back disability preexisted service, or whether it was aggravated during service. Also of record is a November 2017 statement from a private nurse practitioner who examined the Veteran. The nurse practitioner indicated that the Veteran was being treated for choric low back pain and lumbar radiculopathy, and that the Veteran had a previous gunshot wound with a retained bullet in his lower spine. She recounted how the Veteran was seen in service for right leg and lower back pain with spasms. The Veteran reported that this was after a 10-foot fall, and that he did not have these types of pains prior to going through basic training. The nurse practitioner opined that the lumbar radiculopathy is more likely than not caused by the Veteran’s history of falls and the physical training routines during service. The Board notes that no opinion was provided regarding which specific back disabilities preexisted service, and whether these disabilities were aggravated during service. Relevant lay statements of record include a February 2018 statement by the Veteran’s sister. She recalled receiving letters from the Veteran while he was in training where he indicated that his back pain was aggravating. Due to the inadequacies and incompleteness of the August 2001 VA examination and November 2017 private nurse practitioner opinion, the Board finds that a remand is necessary to obtain new medical opinions. Accordingly, the matter is REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Forward the Veteran’s electronic claims file to an appropriate examiner for supplemental opinions as to the nature and etiology of the Veteran’s lower back disability. It is left to the examiner’s discretion whether to reexamine the Veteran. Following the review of the claims file, the examiner should provide opinions on the following: a) Identify any currently diagnosed lower back disability. b) Opine as to whether it is at least as likely as not (a 50 percent probability or greater) that any of the Veteran’s currently diagnosed low back disabilities are related to the residuals of the 1975 abdominal gunshot wound with fragments of the bullet lodged in the Veteran’s lumbar spine, and if this disability clearly and unmistakable existed prior to service. i. If it is likely that any of the Veteran’s currently diagnosed low back disabilities is related to residuals of the 1975 gunshot wound, and existed prior to service, whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s reported back pain in-service were manifestations of his current disabilities. ii. If so, opine as to whether the Veteran’s preexisting low back disability was aggravated beyond its natural progression during service. For purposes of this opinion, the examiner is asked to presume that the in-service fall occurred as described by the Veteran. iii. The examiner should also address the impact of the 1985 slip-and-fall and the 1996 motor vehicle accident on the Veteran’s current low back disabilities. c) In the alternative, if the examiner finds that any of the Veteran’s current low back disabilities is not related to the residuals of the 1975 gunshot wound, opine as to whether it is at least as likely as not (a 50 percent probability or greater) that any of the Veteran’s currently diagnosed low back disabilities are related to the reported in-service fall as described by the Veteran. A complete rationale for all opinions should be provided. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Angeline DeChiara, Associate Counsel