Citation Nr: 18160763 Decision Date: 12/28/18 Archive Date: 12/27/18 DOCKET NO. 15-28 664 DATE: December 28, 2018 ORDER New and material evidence to reopen the claim for entitlement to service connection for residuals, left shoulder injury has not been received; the application to reopen is denied. New and material evidence having been received, the claim for entitlement to service connection for skin rash, to include as due to herbicide exposure, is reopened; to this extent only, the appeal is granted. REMANDED Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for hypertension, to include as due to herbicide exposure and/or secondary to PTSD is remanded. Entitlement to service connection for skin rash, to include as due to herbicide exposure is remanded. FINDINGS OF FACT 1. A July 2004 rating decision denied entitlement to service connection for residuals, left shoulder injury. The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of the notice of that rating decision. 2. The evidence received since July 2004, when considered by itself or in connection with evidence previously assembled, does not relate to unestablished facts necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim of service connection for residuals, left shoulder injury. 3. A July 2004 rating decision denied entitlement to service connection for skin rash. The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of the notice of that rating decision. 4. The evidence received since July 2004, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for skin rash. CONCLUSIONS OF LAW 1. The July 2004 rating decision, which denied the Veteran’s claim of entitlement to service connection for residuals, left shoulder injury, is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103. 2. Evidence received since the July 2004 rating decision in relation to the Veteran’s claim for entitlement to service connection for residuals, left shoulder injury is not new and material, and, therefore, the claim is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The July 2004 rating decision, which denied the Veteran’s claim of entitlement to service connection for skin rash, is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103. 4. Evidence received since the July 2004 rating decision in relation to the Veteran’s claim for entitlement to service connection for skin rash is new and material; therefore, the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1967 to August 1971. The Board observes that additional VA treatment records were received following the last adjudication by the agency of original jurisdiction (AOJ) in the May 2017 supplemental statement of the case (SSOC). The Board has reviewed these records and observes that they are not pertinent to the issues of service connection for left shoulder injury, hypertension, and skin rash and increased ratings for PTSD addressed in the decision below. New and Material Evidence To reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to VA. 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Analysis The Veteran contends that his residuals, left shoulder injury occurred in service. In a July 2004 rating decision, the AOJ denied the claim of entitlement to service connection for left shoulder injury because it determined that there was no link between the current condition and the Veteran’s service. The Veteran did not submit a Notice of Disagreement (NOD) with the July 2004 rating decision. VA did not receive new and material evidence within one year of the issuance of the July 2004 rating decision. Therefore, the July 2004 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 1367–68 (Fed. Cir. 2011). In November 2011, the Veteran filed a new claim for benefits. New evidence used to substantiate the claim included VA treatment records dated from June 2007. Despite the evidence added to the claims file, nothing therein shows or implies that the Veteran’s left shoulder injury is otherwise attributable to an event, injury, or disease during service. The Board finds that the new evidence does not raise a reasonable possibility of substantiating the claim of service connection for left shoulder injury and does not relate to an unestablished fact necessary to substantiate the claim. Rather, the new evidence is cumulative and redundant of the evidence previously of record. There is no other evidence upon which to reopen the Veteran’s claim. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen the finally disallowed claim of service connection for residuals, left shoulder injury, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). In sum, absent new and material evidence showing left shoulder injury is due to service, the claim of entitlement to service connection cannot be reopened. See 38 C.F.R. § 3.152(a) REASONS FOR REMAND In his November 2018 Appellate Brief, the Veteran, through his representative stated that the Veteran’s PTSD had gotten worse. The Board notes that the Veteran’s last examination was in August 2013. Therefore, the Veteran should be afforded an examination to determine the current severity of his PTSD. The Veteran has been diagnosed with hypertension and tinea corporis (skin rash). He contends that both conditions are due to herbicide exposure. The Board notes that the Veteran did serve in Vietnam during the presumptive period of January 9, 1962 to May 7, 1975, thus the Veteran is presumed to have been exposed to an herbicide agent during his service in Vietnam. 38 C.F.R. § 3.307. Additionally, in its May 2014 and August 2017 rating decisions, the AOJ granted service connection for diabetes mellitus II and prostate cancer based on presumption due to Agent Orange exposure. Hypertension and tinea corporis are not on the list of diseases enumerated in 38 C.F.R. § 3.309(e) for which presumptive service connection is warranted based on herbicide exposure. But, this does not, preclude a claimant from establishing service connection for the claimed disorders on direct basis, to include as due to exposure to herbicides. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board notes that the Veteran has not been afforded VA examinations to determine whether his hypertension and skin rash could have been related to herbicide exposure during his military service. As noted above, regulations governing presumptive service connection for Agent Orange do not preclude a veteran from establishing service connection with proof of actual direct causation. Combee, 34 F.3d at 1039. Additionally, the Veteran has not been provided a VA examination to determine whether his hypertension was either caused or aggravated by his service-connected PTSD. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, on remand, VA examinations should be conducted to determine the nature and etiology of the Veteran’s hypertension and skin rash. The matters are REMANDED for the following action: 1. Obtain and associate all outstanding VA and private treatment records with the claims file. 2. Thereafter, schedule a VA examination to determine the current severity of the Veteran’s PTSD. The complete record, to include a copy of this remand and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. The examination report must include a notation that this record review took place. All indicated tests and studies must be conducted. The supporting rationale for all opinions expressed must be provided. The examiner shall report the nature and severity of all signs and symptoms of the Veteran’s PTSD, and fully describe the impact of the disability on the Veteran’s occupational and social functioning. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his hypertension and skin rash. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner(s). The opinions must include a notation that this record review took place. The supporting rationale for all opinions expressed must be provided. Based on a review of the entire record, the examiner(s) should respond to the following: i. Is it at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension had its onset during active service or is etiologically related to the Veteran’s active duty service, to include the Veteran’s in-service exposure to herbicide agents, to include Agent Orange? ii. If the answer to (i) is no, is it at least as likely as not that the Veteran’s hypertension is proximately due to or aggravated (permanently worsened beyond its natural progression) by his service-connected PTSD? If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. iii. For any diagnosed skin condition, is it at least as likely as not that condition had its onset during military service or is otherwise related to such service, to include the Veteran’s in-service exposure to herbicide agents, to include Agent Orange? The term “at least as likely as not” does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of a certain conclusion as it is to find against it. 4. Thereafter, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, furnish the Veteran and his representative a SSOC and afford them the opportunity to respond before the file is returned to the Board for further consideration. Michael Lane Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Henry, Associate Counsel