Citation Nr: 18156917 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-45 084 DATE: December 11, 2018 ORDER New and material evidence not having been received, the appeal to reopen a claim of entitlement to service connection for erectile dysfunction is denied. New and material evidence not having been received, the appeal to reopen a claim of entitlement to service connection for a skin rash of the groin is denied. New and material evidence having been received, the appeal to reopen a claim of entitlement to service connection for a skin rash of the neck is granted. REMANDED Entitlement to service connection for a skin condition, including of the neck, back, chest, abdomen, and arms and legs, is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. A July 2004 rating decision denied entitlement to service connection for erectile dysfunction, a skin rash of the groin, and a skin rash of the neck; no appeal was taken from that determination and new and material evidence was not received within the one-year appeal period. 2. An August 2010 rating decision denied entitlement to service connection for erectile dysfunction, including as secondary to hypertension; no appeal was taken from that determination and new and material evidence was not received within the one-year appeal period. 3. Since the July 2004 rating decision, new and material evidence has not been received to reopen the claim for entitlement to service connection for a skin rash of the groin. 4. Since the August 2010 rating decision, new and material evidence has not been received to reopen the claim for entitlement to service connection for erectile dysfunction. 5. Since the July 2004 rating decision, new and material evidence has been received to reopen the claim for entitlement to service connection for a skin rash of the neck. CONCLUSIONS OF LAW 1. The July 2004 rating decision is final as it pertains to the claims of entitlement to service connection for a skin rash of the groin and neck. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The August 2010 rating decision is final as it pertains to the claim of entitlement to service connection for erectile dysfunction. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 3. New and material evidence has not been received since the August 2010 rating decision to reopen the claim of entitlement to service connection for erectile dysfunction. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. New and material evidence has not been received since the July 2004 rating decision to reopen a claim of entitlement to service connection for a skin rash of the groin. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. New and material evidence has been received since the July 2004 rating decision to reopen the claim of entitlement to service connection for a skin rash of the neck. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Army from March 1981 to August 1981, and from January 2003 to January 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA). New and Material Evidence The Veteran seeks to reopen claims of entitlement to service connection for erectile dysfunction, a skin rash of the groin, and a skin rash of the neck. Service connection may be granted if there is a disability resulting from personal injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish 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. Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this case, there are prior final decisions on the respective claims. A July 2004 rating decision denied service connection for erectile dysfunction, a skin rash of the groin, and a skin rash of the neck. For all three, the agency of original jurisdiction (AOJ) found that there was no evidence of inservice incurrence and no evidence of a nexus between the conditions and service. Notice of the determinations was issued to the Veteran, but no appeal was taken from that determination, and new and material evidence was not received within the one-year appeal period. As such, the July 2004 rating decision became final. 38 U.S.C. § 7105. In April 2010, the Veteran petitioned to reopen the service connection claim for erectile dysfunction, which was denied in an August 2010 rating decision. The AOJ found that there was still no evidence of in-service incurrence or nexus. Additionally, the AOJ denied the claim on a secondary basis as the Veteran contended that his erectile dysfunction was caused by his non-service connected hypertension. Therefore, the August 2010 rating decision became final as to the claim for entitlement to service connection for erectile dysfunction. 38 U.S.C. § 7105. The Veteran filed to reopen all three claims in August 2013. As a result, the Board must first determine whether the Veteran has submitted new and material evidence under 38 C.F.R. § 3.156(a) to have a final denial reopened under 38 U.S.C. § 5108. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Although the AOJ determined that new and material evidence was not submitted to reopen the claims, the Board must conduct a de novo review of whether new and material evidence has been submitted to reopen the claims. Id.; Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and further analysis is neither required nor permitted. Id. at 1384. If new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA’s duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The law is interpreted in favor of enabling reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Evidence is material where it is relevant and probative of the issues at hand and where there is a reasonable possibility that, when viewed in the context of all the evidence, both new and old, it would change the outcome. Id.; Evans v. Brown, 9 Vet. App. 273, 283 (1996). New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial. 38 C.F.R. § 3.156(a). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). For purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The focus is not exclusively on whether the 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. Shade, 24 Vet. App. at 118. Thus, evidence is new and material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. 1. New and material evidence has not been received to reopen a claim of entitlement to service connection for erectile dysfunction. New and material evidence has not been received to reopen the claim of entitlement to service connection for erectile dysfunction. After filing the petition to reopen, additional medical records were received showing that the Veteran continues to have erectile dysfunction. While these records are new, they are not material as they do not show that the condition existed during service or indicate a nexus between the condition and service, which were the bases for the denials in July 2004 and August 2010. As a result, the Board finds that new and material evidence has not been received to reopen the previously denied claim of entitlement to service connection for erectile dysfunction; therefore, the Board will not discuss the merits of the claim. Butler v. Brown, 9 Vet. App. 167, 171 (1996) (holding that the Board must first determine that new and material evidence was presented before it can adjudicate the merits of a claim). For these reasons, the appeal to reopen is denied. 2. New and material evidence has not been received to reopen a claim of entitlement to service connection for a skin rash of the groin. New and material evidence has not been received to reopen the claim of entitlement to service connection for a skin rash of the groin as there is no evidence of a current skin rash or skin condition of the groin. The additional evidence of record since the July 2004 rating decision includes the Veteran lay statement that the skin rash has spread “throughout his body.” VA 21-4138 (Aug. 2, 2013) (petitioning to reopen his previously denied claims of erectile dysfunction and skin rash of the groin and neck). However, hundreds of pages of medical records were received during this appeal period dating back to April 2004, and the records neither show nor did the Veteran report a current skin condition of the groin. In other words, there is less evidence to substantiate the claim. See Degmetich v. Brown, 104 F.3d 1328, 1330-33 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation); Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). As a result, the Board finds that new and material evidence has not been received to reopen the previously denied claim of entitlement to service connection for a skin rash of the groin; therefore, the Board will not discuss the merits of the claim. Butler, 9 Vet. App. at 171. For these reasons, the appeal to reopen is denied. 3. New and material evidence has been received to reopen a claim of entitlement to service connection for a skin rash of the neck. Unlike the other two claims, new and material evidence has been received to reopen the claim of entitlement to service connection for a skin rash of the neck. The new evidence received during the appeal period consists of additional lay statements and medical records. The Veteran stated in his petition to reopen that the skin rash has spread “throughout his body.” VA 21-4138 (Aug. 2, 2013). Medical records from the Hampton VA Medical Center (VAMC) show that, during a dermatology consult on April 19, 2011, the Veteran reported years of multiple, recurrent, slightly raised round lesions in an irritated area of his neck associated with a chronic lesion. He reported having surgery in the impacted area of the neck. Furthermore, he reported having itchy areas on his left side (abdomen), right wrist, and upper chest for which he tried over the counter creams with minimal results. He also reported occasional itching in his armpits, and on the palms of his hands and soles of his feet. After examination, the examiner assessed prurigo nodules of the chest and left abdomen, lichen simplex chronicus of the right wrist, tinea pedis, intermittent pruritus of the axilla (armpits), and acanthosis nigricans of the armpits secondary to underlying obesity. During another dermatology consult on August 5, 2013, the Veteran reported longstanding “itching on [his] neck, back, arms and legs” since retiring from active duty in 2004. The examination revealed a velvety hyperpigmented plaque on the back of the neck and a few hyperpigmented small papules on right extensor hand. The examiner assessed generalized pruritus and prurigo nodules with the former as the inciting factor. Given the reported longstanding nature of the Veteran’s condition and the new medical opinion suggesting a possible relationship to service, the new evidence is material as it relates to the unestablished element of a nexus and triggers the VA’s duty to assist by providing a medical examination and/or opinion which might raise a reasonable possibility of substantiating the claim. Accordingly, the appeal to reopen the claim of entitlement to service connection for a skin rash of the neck is granted. REASONS FOR REMAND 1. Entitlement to service connection for a skin condition, including of the neck, back, chest, abdomen, and arms and legs, but not of the groin, is remanded. This appeal stems from the Veteran’s August 2013 petition to reopen the July 2004 rating decision which denied service connection for a skin rash of the neck. The Veteran has asserted, and the medical evidence shows, that the Veteran has pruritus (severe itching) which has spread to other areas of his body, as well as other skin conditions, including prurigo nodules, lichen simplex chronicus, tinea pedis, and acanthosis nigricans. The diagnosis of neck pruritus is consistent with the diagnosis rendered during the February 2004 VA examination. See VAX (Feb. 19, 2004) (showing diagnosis of neck dermatitis with pruritus). To this end, the scope of the Veteran’s claim includes any skin condition reasonably encompassed by his reported symptomatology. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). As a result, his claim has been expanded and recharacterized. As discussed above, new and material evidence has triggered the VA’s duty to assist in providing a VA examination and medical opinion. See 38 C.F.R. § 3.159(c)(4)(i). Therefore, this issue must be remanded to obtain a VA examination and medical opinion. 2. Entitlement to service connection for a left and right knee disability is remanded. These claims must be remanded to obtain a medical examination and opinion. The first Shedden element has been met as the Veteran has been diagnosed with degenerative joint disease in both knees with superior patellar enthesopathy, pain and related symptomology. Regarding the second and third Shedden elements, the Veteran asserted that he worked through “severe aches and pains, especially [in] my knees [and] ankles” during his military service, and that he had continued symptoms until he was diagnosed with degenerative joint disease in his left knee in September 2012 and his right knee in September 2014. While the Veteran is competent to report that he injured his knees during service and had “severe aches and pains” during service with continued symptomatology ever since, his reports are currently inconsistent with other evidence in the record. The Veteran’s service treatment records are devoid of any complaints or treatment for any knee condition. Similarly, his periodic and separation reports of medical examination and reports of medical history are silent for any findings or endorsement of any knee condition. One month after separating from service, the Veteran underwent a VA examination for compensation purposes in February 2004 and the examination did not reveal any complaints, issues or diagnosis pertaining to either knee. Furthermore, post-service medical records are silent for any complaints, treatment, or diagnosis of any knee condition until September 2012 when the Veteran sustained a fall and injury to his left knee during private employment. Subsequently, the first reference of right knee pain came in May 2013, only after the Veteran sustained his left knee injury. Hampton VAMC (May 28, 2013). The Veteran submitted many medical opinions which attempted to establish that his current bilateral knee disabilities were caused by service. The Board has reviewed these opinions, however they either lack rationale or are premised solely on the Veteran’s contradicted reports of what occurred in service. However, since there is an indication that the Veteran’s bilateral knee disability may be related to service, as reflected by the medical opinions of record, and the Veteran has not yet been afforded a VA examination. Accordingly, the most appropriate course of action is to remand in order to provide the Veteran with a VA examination. See 38 C.F.R. § 3.159(c)(4)(i). On remand, the AOJ should request any outstanding records which may be pertinent to the Veteran’s claim. Of note, the Veteran reported that he saw a Suffolk Orthopedist to evaluate his knees and discuss surgical options. Additionally, the record indicates that the Veteran filed a workers’ compensation claim with his employer following the September 2012 left knee injury. These records are pertinent to the Veteran’s claims for a left and right knee disability and should be obtained. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all doctors or treatment facilities who/which may have information pertinent to his claim for service connection for the left and/or right knee disability. Provide the Veteran the appropriate form(s) for Authorization of Release of such records to VA. Upon receipt of such authorization, attempt to obtain all identified records, to include for the period from September 2012 to the present. For any private doctors or facilities, ask the Veteran to complete a VA Form 21-4142. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. All attempts to obtain identified records should be documented of record. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any skin condition, to include pruritus, prurigo nodules, lichen simplex chronicus, tinea pedis, and acanthosis nigricans. The examiner must opine as to whether any diagnosed skin condition was at least as likely as not incurred in service or is related to service. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left and/or right knee disability, to include degenerative joint disease in both knees with superior patellar enthesopathy, pain, and related symptomology. The examiner must opine whether any left or right knee disability is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s contention that his knee disabilities stem from training, work, and physical activities while on active duty, repelling from helicopters, and from frequent jumps off a “duce and a half.” In rendering an opinion, the examiner is asked to comment on the significance, if any, of the absence of any complaints or treatment until the Veteran injured his knee during a fall at work in September 2012. 4. After undertaking any additional development deemed appropriate, and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Kutrolli, Associate Counsel