Citation Nr: 18148182 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 15-44 480 DATE: November 7, 2018 ORDER New and material evidence having been received, the previously denied claim of entitlement to service connection for a back disorder is reopened. New and material evidence having been received, the previously denied claim of entitlement to service connection for a chronic fungal infection of the feet is reopened. New and material evidence having not been received, the previously denied claim of entitlement to service connection for a broken tooth is not reopened. REMANDED Service connection for a back disorder is remanded. Service connection for a skin disorder of the feet is remanded. Service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The Regional Office (RO) decision of October 2009 denied the Veteran’s claim of reopen entitlement to service connection for a back disorder. The Veteran did not perfect an appeal of this decision or submit new and material evidence within one year. 2. Evidence received since the October 2009 rating decision is new and material and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a back condition. 3. The RO decision of March 2013 continued a previous denial of entitlement to service connection for a chronic fungal infection of the feet. The Veteran did not perfect an appeal of this decision or submit new and material evidence within one year. 4. Evidence received since the March 2013 rating decision is new and material and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a chronic fungal infection of the feet. 5. The RO decision of January 1998 continued a previous denial of entitlement to service connection for a broken tooth. The Veteran did not perfect an appeal of this decision or submit new and material evidence within one year. 6. Evidence received since the January 1998 rating decision is not new and material and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for a broken tooth. CONCLUSIONS OF LAW 1. The October 2009 rating decision in which the RO denied claim for service connection for a back disorder is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The evidence received since the October 2009 rating decision is new and material, and the claim for service connection for a back disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (2018). 3. The March 2013 rating decision in which the RO denied claim for service connection for a chronic fungal infection of the feet is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. The evidence received since the March 2013 rating decision is new and material, and the claim for service connection for a chronic fungal injection of the feet is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The January 1998 rating decision in which the RO denied claim for service connection for a broken tooth is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 6. The evidence received since the March 2013 rating decision is not new and material, and the claim for service connection for a broken tooth is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1989 to August 1992. This case comes before the Board of Veterans’ Appeals (Board) on appeal from March 2013 and July 2015 rating decisions of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Winston-Salem, North Carolina. In the relevant portion of a March 2013 rating decision, service connection for sleep apnea was denied. A timely Notice of Disagreement was received by VA in April 2013. As of yet, no statement of the case has been issued. The Board notes that the Notice of Disagreement was received within one year of the original March 2013 denial of service connection for sleep apnea; as such, the Board construes this as an original claim and not a claim to reopen. Claims to Reopen A final claim will be reopened if new and material evidence is presented. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that 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 (a); see also Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010). A new theory of entitlement is not a basis for reopening a claim, but if evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). 1. Back disorder In a February 1995 rating decision, the RO denied service connection for a back disorder, finding that an in-service back strain was a temporary condition that resolved with treatment. As such, the RO determined there was no permanent residual noted at separation. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In November 2008, the Veteran attempted to reopen the previously denied claim of entitlement to service connection for a back disorder. An October 2009 rating decision did not reopen this claim, find that there was no evidence the Veteran developed a back disability due to his active duty service. The Veteran did not perfect an appeal of this decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. Id. In February 2011, the Veteran again attempted to reopen the previously denied claim of entitlement to service connection for a back disorder. A March 2013 rating decision acknowledged the Veteran had a current back disorder but found that there was no evidence that the condition was caused by his military service. Therefore, the Veteran’s claim to reopen was denied. The Veteran submitted a timely Notice of Disagreement in April 2013. The October 2009 rating action represents the last previous final decision on any basis as to the issue of whether the Veteran is entitled to service connection for a back condition. Evans v. Brown, 9 Vet. App. 273 (1996). Prior to the October 2009 rating decision, the Veteran contended that he sustained a back injury from a fall in service and reported a continuity of symptomatology. Service treatment records reveal he was treated for back pain due to a back strain in June 1989. In July 1989 the Veteran reported back pain from heavy lifting. He also reported back pain in March 1992 after falling down the stairs. The Veteran’s post-service treatment records prior to October 2009 indicate that the Veteran was diagnosed with lumbar spondylosis and he continuously reported low back pain. Evidence submitted since the October 2009 rating decision includes VA treatment records, including a November 2014 a magnetic resonance imaging (MRI) scan of the lumbar spine showing moderately advanced mid to lower lumbar degenerative disc disease. Furthermore, in an August 2018 Appellant’s Brief, it was noted that the Veteran wore heavy equipment during his deployment which affected his back. Given the evidence above, the Board finds that new and material evidence has been presented. Specifically, the November 2014 MRI findings of degenerative disc disease of the mid to lower lumbar spine, is new and material because, when a prior claim for service connection has been denied, and a current claim contains a different diagnosis (even one producing the same symptoms in the same anatomic system), a new decision on the merits is required. See Ephraim v. Brown, 82 F.3d 399, 402 (Fed. Cir. 1996); but see Ashford v. Brown, 10 Vet. App. 120, 123 (1997) (a new etiological theory does not constitute a new claim). The Federal Circuit has held that a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury when it is an independent claim based on distinct factual bases. The term “factual basis” is defined as the Veteran’s underlying disease or injury, rather than as symptoms of that disease or injury. Boggs v. Peake, 520 F.3d 1330, 1334-35 (Fed. Cir. 2008). Claims based on distinctly diagnosed diseases or injuries must be considered as separate and distinct claims. Id. at 1335. The Court of Appeals for Veterans Claims (Court) has held that the focus of the Board’s consideration as to whether a claim was one to reopen should be on whether the evidence truly amounted to a new claim based upon a different diagnosed disease or injury, or whether the evidence substantiated an element of a previously adjudicated matter. Velez v. Shinseki, 23 Vet. App. 199 (2009). Accordingly, for the above reason, the Veteran’s previously denied claim of entitlement to service connection for a back disorder is reopened. 2. Chronic fungal infection of the feet In a January 1998 rating decision, the RO denied service connection for a chronic fungal infection of the feet because, although a fungal infection of the feet was noted in an October 1991 service treatment record, it was not a chronic disability and post-service treatment records are negative for a fungal infection of the feet until June 1994. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the January 1998 rating decision includes service treatment records and VA treatment records dated through 1996. These records confirm that the Veteran was treated and diagnosed with fungal infection of the feet in October 1991 for seven days. Post-service treatment records indicate he was treated for foot fungus in June 1994. In April 2012, the Veteran submitted a claim seeking to reopen the previously denied claim of entitlement to service connection for a chronic fungal infection of the feet and reported a continuity of symptomatology. In a March 2013 rating decision, the RO denied service connection for a chronic fungal infection of the feet as there was no evidence of a chronic or disabling condition associated with the acute findings of foot fungus noted in 1991. The Veteran submitted a timely Notice of Disagreement in April 2013. Although a Statement of the Case was not issued, the Veteran submitted a claim to reopen this issue in August 2014 and another rating decision was issued in July 2015 which determined new and material evidence was not provided. Therefore, the Board finds that the January 1998 rating action represents the last previous final decision on any basis as to the issue of whether the Veteran is entitled to service connection for a chronic fungal infection of the feet. Evans v. Brown, 9 Vet. App. 273 (1996). Evidence submitted after the January 1998 rating decision includes additional VA treatment records. According to a July 2016 VA treatment record, the Veteran stated he was diagnosed with tinea pedis and onychomycosis. A January 2017 VA treatment record indicates the Veteran reported using a topical antifungal on his feet. The Board finds that new and material evidence has been presented. The evidence, including the VA treatment records dated July 2016 and January 2017 is new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim - evidence of a chronic condition. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, for the above reason, the Veteran’s previously denied claim of entitlement to service connection for a fungal infection of the foot is reopened. 3. Broken tooth In a January 1998 rating decision, the RO denied service connection for a broken tooth, finding that the Veteran’s broken tooth was not a disability for which compensation may be established. The RO noted that replaceable missing teeth were not disabling conditions for VA purposes. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The Board finds that the evidence received since the January 1998 rating decision does not raise a reasonable possibility of substantiating the claim. Initially, the Board notes that replaceable missing teeth are not considered disabling conditions, and may be considered service-connected solely for the purpose of determining entitlement to a VA dental examination or outpatient dental treatment. See 38 C.F.R. § 3.381. Furthermore, no relevant medical evidence was obtained and there is no indication other than the Veteran’s own statements that present dental disabilities for VA compensation exist. The Veteran’s statements are essentially the same as those considered in his earlier claim. See Bostain v. West, 11 Vet. App. 124 (1998) (lay testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence). In sum, the evidence added to the record as to this matter is essentially cumulative of the evidence previously considered. To date, he has not provided any evidence to substantiate the previously missing element of his claim which is to demonstrate a current dental disease or disability for which compensation benefits could be authorized. There is no indication that the newly-obtained evidence could, if the claim was reopened, reasonably result in substantiation of the service connection claim. Therefore, the claim may not be reopened. REASONS FOR REMAND 1. Back condition/fungal infection of the feet VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, the Veteran claims that his current back disability stems from his military service due to an injury from a fall and/or wearing heavy equipment during his deployment. The Veteran also stated he has a skin disorder of the feet as a result of heat and sweating of the feet on a daily basis while serving in Desert Storm. He further stated experiencing a continuity of symptomatology of both disabilities since his military service. Because there is evidence of currently diagnosed disabilities, an in-service event, and an indication that the current disabilities may be associated with the in-service event, VA examinations are required in order to clarify the diagnoses of the Veteran’s claimed back condition and skin disorders of the feet and to obtain etiological opinions. 2. Sleep apnea Regarding the claim of entitlement to service connection for sleep apnea, as discussed above, the Veteran submitted a timely Notice of Disagreement with a March 2013 rating decision, but a Statement of the Case has not yet been issued. A remand is required for the AOJ to issue a Statement of the Case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matter is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to clarify the diagnosed back conditions and determine the etiology of each diagnosis. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the diagnosed back conditions had onset in, or is otherwise related to, active military service. The examiner must specifically address the Veteran’s assertions of an in-service injury and the impact of wearing heavy equipment during his deployment. The examiner must specifically address the complaint and treatment of back pain contained in the Veteran’s service treatment records. Furthermore, the examiner is asked to address the Veteran’s lay statements of continuity of symptomatology. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to clarify the diagnosed skin disorder(s) of the feet and determine the etiology of each diagnosis. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the diagnosed skin disorder(s) of the feet had onset in, or are otherwise related to, active military service. The examiner must specifically address the treatment of fungal infection of the feet as contained in the Veteran’s service treatment records. Furthermore, the examiner is asked to address the Veteran’s lay statements of continuity of symptomatology. 5. Issue a Statement of the Case as to the issue of entitlement to service connection for sleep apnea. If the decision remains adverse to the Veteran, he and his representative should be informed that he must file a timely and adequate substantive appeal if he wishes to appeal the claim to the Board. They must be informed of the time period allowed for perfecting a timely appeal. 6. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. (Continued on the next page)   7. Ensure compliance with the directives of this remand. If the report is deficient in any manner, the Agency of Original Jurisdiction must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Yoo, Counsel