Citation Nr: 18159574 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 16-53 375 DATE: December 20, 2018 ORDER New and material evidence having been received, the Veteran’s claim for entitlement to service connection for myasthenia gravis is reopened; to this extent only, the appeal is granted. REMANDED Entitlement to service connection for myasthenia gravis is remanded. FINDINGS OF FACT 1. A May 2012 rating decision declined to reopen a claim seeking service connection for myasthenia gravis that was previously denied on the basis that the evidence did not show that the disability was incurred in or caused by service, or manifested to a compensable degree within one year after separation from service; the Veteran did not appeal the decision and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period. 2. Evidence received since the time of the May 2012 rating decision is new and raises a reasonable possibility of substantiating the Veteran’s claim.   CONCLUSIONS OF LAW 1. The May 2012 rating decision declining to reopen a claim of service connection for myasthenia gravis is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received to reopen the claim of entitlement to service connection for myasthenia gravis is new and material. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from January 1987 to June 1991. This matter is before the Board of Veterans’ Appeals on appeal from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Whether new and material evidence has been received to reopen a claim for service connection for myasthenia gravis A claim for service connection for myasthenia gravis was denied in a May 2000 Board decision on the basis that the evidence did not show that the disability was incurred in or caused by service, or manifested to a compensable degree within one year from separation from service. The Board notified the Veteran of its decision and of his appellate rights. Board decisions are final as of the date of their issuance. 38 C.F.R. § 20.1100. The Veteran did not file a timely appeal to the U.S. Court of Appeals for Veterans Claims. 38 U.S.C. § 7266. The Veteran filed to reopen his claim in June 2010. A May 2012 decision by the RO declined to reopen the claim based on a finding that the evidence submitted was not new and material. The Veteran did not appeal the decision, nor did he submit any new and material evidence during the one-year appeal period. Therefore, the decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. In determining whether evidence is “new and material,” the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); 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.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received 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, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118 (2010). Regardless of the RO’s determination as to whether new and material evidence has been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512 (1992). Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Justus, 3 Vet. App. at 513. The Veteran filed a petition to reopen his claim for service connection for myasthenia gravis in April 2015. The case was reopened in a rating decision issued by the RO in August 2015 on the basis that the Veteran had submitted new and material evidence for the claim. Here, the evidence received since the May 2012 RO decision includes a VA treatment record dated in August 2010; a VA opinion dated in July 2015; and VA treatment records from July 2016 to February 2018 showing treatment for myasthenia gravis. This evidence is new as it was not before adjudicators when the Veteran’s claim was last denied in May 2012. The Board must now determine whether this evidence also qualifies as material, such that it relates to an unestablished fact necessary to substantiate the Veteran’s claim. In undertaking this analysis, the Board notes that the May 2012 RO decision declined to reopen the claim as the evidence continued not to show that the disability was incurred in or caused by service, or manifested to a compensable degree within one year from separation from service. The Board finds that the new evidence also qualifies as material, as it raises a reasonable possibility of substantiating the Veteran’s claim. See Shade, 24 Vet. App. at 118 (2010). In particular, the August 2010 VA treatment record reflects the VA treating provider’s opinion that it was equally as likely as it was unlikely that the Veteran started to develop myasthenia gravis during active duty because, according to the Veteran’s statements, he started developing exercise intolerance toward the end of his active duty service. Accordingly, the Board finds that the above evidence also qualifies as material. The Board acknowledges that this VA treatment record was created in August 2010, prior to issuance of the May 2012 RO decision. However, at the time of the May 2012 decision, the Veteran had not adequately identified receiving VA treatment in 2010; therefore, the RO did not obtain the record and it was not actually considered by the RO at the time of the May 2012 decision. 38 C.F.R. § 3.159(c)(2)(i). The Board therefore finds that new and material evidence has been received since the prior final denial of this claim in May 2012. Shade, 24 Vet. App. at 117. The claim of entitlement to service connection for myasthenia gravis is thus reopened. REASONS FOR REMAND Entitlement to service connection for myasthenia gravis is remanded. The Veteran was afforded a VA examination for myasthenia gravis in July 2011. The VA examiner opined that myasthenia gravis was not caused by or a result of the Veteran’s service in the Persian Gulf as there was no evidence in current medical literature to support such a link. The RO requested a further opinion addressing the cause of the disease, which was issued in July 2015. The Board cannot make a fully-informed decision on the issue of service connection for myasthenia gravis because the July 2011 and July 2015 opinions did not address the statements by the Veteran, his wife, and friends that the Veteran’s symptoms began while on active duty or within one year after discharge. A medical opinion is inadequate when the examiner fails to consider all of the relevant evidence of record, including lay statements. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Remand is required for a new opinion to address the lay evidence.   The matter is REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from May 2018 to the present. 2. Obtain an addendum opinion from an appropriate clinician to determine the etiology and time of onset for the Veteran’s myasthenia gravis. The claims file must be made available to the examiner in conjunction with this request. It is left to the discretion of the examiner as to whether an examination of the Veteran is needed. The examiner must opine as to the following: A.) Whether it is at least as likely as not that myasthenia gravis (1) began during active service, (2) manifested within one year after discharge from service, or (3) symptoms were noted during service with continuity of the same symptomatology since service? B.) Whether it is at least as likely as not that myasthenia gravis is otherwise related to the Veteran’s active duty service, including environmental exposures during service in Saudi Arabia and Kuwait during the Persian Gulf War and medications (pyridostigmine and ciprofloxacin) taken in February 1991? In providing opinions on the above questions, the examiner must consider the following evidence, including (1) a September 1999 letter from Dr. D.P. indicating that the Veteran had the initial symptoms of myasthenia gravis dating back to at least 1992; (2) the Veteran’s statement recorded in a July 1995 UNC Hospital neurology report that he noted twitching of eyelids and biceps after taking anti-poisonous gas medications in 1991, and that those symptoms became more severe after discharge; (3) in September 1996, the Veteran told a private physician that his ptosis became worse during the Gulf War and that he began to experience diplopia at that time, and that he noticed generalized weakness in 1991 or 1992; (4) in a July 1997 Compensation and Pension examination, the Veteran said that he developed weakness and fatigue just after separation from service; (5) in his February 2000 Board hearing testimony, the Veteran said that headaches and blurred vision began two or three months after discharge from service; (6) in an October 2010 letter, the Veteran’s wife said that she noticed his fatigue beginning in March 1992, and his double vision beginning approximately 1993; and (7) in an October 2010 letter a friend from the Marine Corps stated that the Veteran complained to him about medical issues approximately a year after separation. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate   whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Dean, Associate Counsel