Citation Nr: 1808759 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 12-33 623A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for discoid lupus erythematosus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D.S. Chilcote, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1974 to November 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In December 2017, the Veteran testified before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the record. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The merits of the underlying claim for service connection for lupus are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. In a February 2006 rating decision, the RO denied service connection for lupus. The Veteran did not appeal that decision or submit new and material evidence within one year thereafter. 2. The evidence received since the February 2006 rating decision, by itself or in conjunction with previously considered evidence, is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The February 2006 rating decision denying service connection for lupus is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 2. The evidence received since the February 2006 rating decision is new and material as to the claim for service connection for lupus and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In order to reopen a claim which has been denied by a final decision, a claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by RO, Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For the 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, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that 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 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. Id. at 118. The RO previously considered and denied a claim for service connection for lupus in a November 1986 rating decision. In particular, the RO observed that a May 1986 hospital report documented an approximately four month history of a lesion on his noise and right cheek. A biopsy had revealed discoid lupus erythematosus. The RO also noted that the Veteran's service treatment records documented pseudofolliculitis barbae, but no other skin problems or lupus. Therefore, the RO determined that the disorder first manifested after service in 1986 and that there was no basis for establishing service connection. The Veteran was notified of that decision and of his appellate rights, but he did not appeal that determination or submit new and medical evidence within one year thereafter. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103. Therefore, the November 1986 rating decision is final. The Veteran later sought to reopen the claim, but the RO denied the application to reopen in a February 2006 rating decision because new and material evidence was not submitted. In that decision, the RO found that the evidence still did not demonstrate that he had the disorder in service or within one year thereafter. The Veteran was notified of the February 2006 rating decision and of his appellate rights, but he did not appeal that determination or submit new and medical evidence within one year thereafter. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103. Therefore, the February 2006 rating decision is final. The evidence received since the February 2006 rating decision includes a December 2013 disability benefits questionnaire from Dr. S.M. (initials used to protect privacy) noting the Veteran's reported history that he was first diagnosed in 1978. The Veteran also submitted a February 2017 letter from Dr. M.A. and a March 2017 letter from Dr. J.J.. Dr. M.A. stated that the Veteran has discoid lupus erythematosus affecting his face which has been present since 1978. In a previous letter dated in December 2010, Dr. M.A. stated that she first treated the Veteran sometime between 1985 and 1988, when she was a dermatology resident at the VA Medical Center (VAMC) in Birmingham. Dr. J.J. stated that he has treated the Veteran "since the late 1970's or early 1980's." According to Dr. J.J., the Veteran presented with a facial lesion and was subsequently diagnosed with discoid lupus erythematosus. This evidence was not previously considered by the RO, relates to an unestablished fact necessary to substantiate the claim, and could reasonably substantiate the claim. Moreover, 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). Thus, the Board finds that this evidence is both new and material, and the claim for service connection for lupus is reopened. However, as will be explained below, the Board is of the opinion that further development is necessary before the substantive merits of the Veteran's claim can be meaningfully addressed. ORDER New and material evidence having been received, the claim for service connection for discoid lupus erythematosus is reopened; the claim is granted to this extent only. REMAND As set forth above, the available treatment records note the earliest diagnosis of lupus in 1986. In this regard, VA medical records from April 1986 show that the Veteran presented with a three-month history of a sore or lesion on his nose which was continuing to spread. A subsequent biopsy confirmed the diagnosis. Although Dr. J.J. stated that he began treating the Veteran in the late 1970s or early 1980s, and the Veteran testified that he first saw Dr. J.J. for a skin rash in 1979, these records do not appear in the claims file. In addition, Dr. M.A. stated that she began treating the Veteran for lupus in the mid-1980s while she was a resident at VAMC in Birmingham; these records are not included in the file either. The Veteran testified that he was referred to Dr. M.A. by Dr. J.J. See December 2017 Board hearing at 18. Thus, on remand, the AOJ should attempt to obtain these medical records. In addition, the Board notes that the Veteran has not been afforded a VA examination in connection with his current claim. Therefore, the Board finds that the Veteran should be afforded a VA examination and medical opinion. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his discoid lupus erythematosus. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. A specific request should be made for records from Dr. J.J. from the 1970s and 1980s. See November 2017 hearing transcript. The AOJ should also secure any outstanding VA medical records, to include records from the Birmingham VAMC dated in the 1970s and 1980s. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of the Veteran's discoid lupus erythematosus. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran's lupus manifested in service or is otherwise causally or etiologically related to his military service, to include any symptomatology therein. In so doing, he or she should address the Veteran's testimony during the November 2017 hearing that he first experienced symptoms in service and his representative's assertion that his condition was misdiagnosed as pseudofolliculitis barbae in service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability is viewed in relation to its history," copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The AOJ should review the VA medical opinion to ensure that it is in compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. 4. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 5. When the development has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).