Citation Nr: 18112697 Decision Date: 06/20/18 Archive Date: 06/20/18 DOCKET NO. 14-32 793 DATE: June 20, 2018 ORDER New and material evidence having been received, the claim for service connection for a low back disorder is reopened; the appeal is granted to this extent only. New and material evidence having been received, the claim for service connection for a skin disorder is reopened; the appeal is granted to this extent only. New and material evidence having been received, the claim for service connection for a bilateral eye disorder is reopened; the appeal is granted to this extent only. REMANDED Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for a skin disorder, to include as secondary to service-connected diabetes mellitus, type II, is remanded. Entitlement to service connection for a bilateral eye disorder, to include as secondary to service-connected diabetes mellitus, type II, is remanded. FINDINGS OF FACT 1. In a final decision issued in May 2011, service connection for a low back disorder, a skin disorder, claimed as jungle jot of the bilateral arm and foot, and a bilateral eye disorder, claimed as bilateral vision loss, were denied. 2. Evidence added to the record since the final May 2011 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claims of entitlement to service connection for a low back disorder, a skin disorder, and a bilateral eye disorder. CONCLUSIONS OF LAW 1. The May 2011 rating decision that denied service connection for a low back disorder, a skin disorder, claimed as jungle rot of the bilateral arm and foot, and a bilateral eye disorder, claimed as bilateral vision loss, is final. 38 U.S.C. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2010) [(2017)]. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a low back disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. New and material evidence has been received to reopen the claim of entitlement to service connection for a skin disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. New and material evidence has been received to reopen the claim of entitlement to service connection for a bilateral eye disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1966 to April 1968, with service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in December 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a low back disorder. 2. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a skin disorder. 3. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a bilateral eye disorder. Rating actions are final and binding based on the evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). From the date of notification of an Agency of Original Jurisdiction (AOJ) decision, the claimant has one year to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). In this regard, if the claimant files a timely notice of disagreement with the decision and the AOJ issues a statement of the case, a substantive appeal must be filed within 60 days from the date that the AOJ mails the statement of the case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b). If new and material evidence is received during an applicable appellate period following an AOJ decision (1 year for a rating decision and 60 days for a statement of the case) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Thus, under 38 C.F.R. § 3.156(b), “VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim.” Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). “[N]ew and material evidence” under 38 C.F.R. § 3.156(b) has the same meaning as “new and material evidence” as defined in 38 C.F.R. § 3.156(a). See Young v. Shinseki, 22 Vet. App. 461, 468 (2011). VA is required to determine whether subsequently submitted materials constitute new and material evidence relating to an earlier claim, regardless of how VA characterizes that later submission of evidence. Beraud v. McDonald, 766 F.3d 1402, 1405 (Fed.Cir. 2014). If VA does not make the necessary determination, the underlying claim remains pending. Id. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). 38 C.F.R. § 3.156(c). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. 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 sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran’s claims for service connection for a low back disorder, a skin disorder, claimed as jungle rot of the bilateral arm and foot, and a bilateral eye disorder, claimed as bilateral vision loss, were originally denied in a May 2011 rating decision. At such time, the AOJ considered the Veteran’s service and post-service treatment records, but found that such did not show a nexus between the Veteran’s low back or skin disorder and his military service. Additionally, the AOJ found that there was no evidence that the Veteran had a current bilateral eye disorder. Specifically, the AOJ noted that the Veteran’s service treatment records were negative for complaints, treatment, or diagnosis referable to any of the Veteran’s claimed conditions. Furthermore, post-service treatment records reflected treatment for a low back disorder in 1981, 13 years after separation, and eczema in February 2002, 34 years after separation. Therefore, the AOJ denied service connection for a low back disorder, a skin disorder, claimed as jungle rot of the bilateral arm and foot, and a bilateral eye disorder, claimed as bilateral vision loss. In May 2011, the Veteran was advised of the decision and his appellate rights. However, he did not enter a notice of disagreement with such decision. Further, no additional evidence referable to his claims on appeal was physically or constructively received within one year of the issuance of such decision and no relevant service department records have since been associated with the record. Therefore, the May 2011 rating decision is final. 38 U.S.C. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2010) [(2017)]. The evidence received since the May 2011 final decision includes VA treatment records indicating the Veteran has a current bilateral eye disorder, to include cataracts and a refractive error, and an October 2014 VA examination reflecting a diagnosis of onychomycosis. Furthermore, the Veteran testified at the December 2017 Board hearing as to the nature of his claimed in-service injuries and duties, and a continuity of symptomatology after service regarding his low back, skin, and bilateral eye disorders. The Board also observes that, while not specifically claimed by the Veteran, service connection for diabetes mellitus, type II, was subsequently awarded in a December 2014 rating decision and such disease may result in complications involving the skin and eyes. Consequently, as the evidence received since the final May 2011 rating decision includes documentation regarding the alleged chronic nature of the Veteran’s claimed disorders since service, thus suggesting the onset therein; evidence of a current bilateral eye disorder; and the suggestion of an alternate theory of entitlement in regard to his claimed skin and vision disorders, the Board finds that such newly received evidence is not cumulative or redundant of the evidence of record at the time of the May 2011 decision and raises a reasonable possibility of substantiating the Veteran’s claims of entitlement to service connection for low back, skin, and bilateral eye disorders. Accordingly, the Board finds that new and material evidence has been received and the Veteran’s claims for such disorders are reopened. REASONS FOR REMAND 4. Entitlement to service connection for a low back disorder. The Veteran contends he has a current low back disorder due to the nature of his physical duties during his military service, to include carrying heavy backpacks and ammunition. He also stated that he had an injury during service around 1967, where he felt his back pop after attempting to lift one of the heavy backpacks. The Veteran’s post-service treatment records reveal that he underwent laminectomies in the early 1980s and that he continues to experience back pain. Thus, the Board finds that a remand is necessary to afford the Veteran a VA examination to determine the nature and etiology of his low back disorder. 5. Entitlement to service connection for a skin disorder, to include as secondary to service-connected diabetes mellitus, type II. The Veteran contends he has a skin disorder that had its onset during his military service in Vietnam as the conditions of such service caused him to always have his shoes and socks on even when they were wet. The Veteran was afforded a VA examination in October 2014, at which time onychomycosis was diagnosed, but no opinion was provided. Thus, the Board finds that a remand is warranted to obtain an opinion to address whether the Veteran’s currently diagnosed skin disorder is related to his military service, or his service-connected diabetes mellitus. 6. Entitlement to service connection for a bilateral eye disorder, to include as secondary to service-connected diabetes mellitus, type II. The Veteran contends that he has a current bilateral eye disorder that resulted from blasts and explosions that occurred near his face during his military service. The Veteran’s post-service treatment records indicate that the Veteran has a current bilateral eye disorder, identified as cataracts and a refractive error. Thus, the Board finds that a remand is necessary to afford the Veteran a VA examination to determine the nature and etiology of his bilateral eye disorder, to include whether such is related to his military service or his service-connected diabetes mellitus. The matter is REMANDED for the following action: 1. The Veteran should be afforded an appropriate VA examination to determine the nature and etiology of any low back disorder. The record, to include a copy of this Remand must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. Following a full review of the record, the examiner should respond to the following: (A) Please identify all of the Veteran’s currently diagnosed low back disorders. (B) For each identified diagnosed low back disorder, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that such disorder had its onset in, or is otherwise related to, the Veteran’s active duty service, to include the nature of his physical duties during service. In offering such opinion, the examiner must consider and discuss the lay statements of record regarding the onset of the Veteran’s low back disorder and the continuity of symptomatology of such disorder. The examiner is also advised that the sole basis of a negative opinion cannot be the fact that the Veteran’s service treatment records are silent as to any low back disorder or complaints thereof. A rationale for any opinion offered should be provided. 2. Return the record to the VA examiner who provided the October 2014 skin examination. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. If the October 2014 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. (A) The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s skin disorder, diagnosed as onychomycosis, had its onset in, or is otherwise related to, the Veteran’s active duty service, to include having to keep his shoes and socks on while wet. The examiner is advised that the sole basis of a negative opinion cannot be the fact that the Veteran’s service treatment records are silent as to any skin disorder or complaints thereof. (B) The examiner should also opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s skin disorder, diagnosed as onychomycosis, is caused or aggravated by his diabetes mellitus, type II. For any aggravation found, the examiner should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. A rationale for any opinion offered should be provided. 3. The Veteran should be afforded an appropriate VA examination to determine the nature and etiology of any bilateral eye disorder, to include cataracts and a refractive error. The record, to include a copy of this Remand must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. Following a full review of the record, the examiner should respond to the following: (A) Please identify all of the Veteran’s currently diagnosed bilateral eye disorders, to include cataracts and a refractive error. (B) For each diagnosed refractive error, the examiner should opine whether such was subject to a superimposed disease or injury during service, to include experiencing blasts and explosions near his face, that resulted in additional disability. If so, please identify the additional disability. (C) For each identified diagnosed bilateral eye disorder other than a refractive error, to include cataracts, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that such disorder had its onset in, or is otherwise related to, the Veteran’s active duty service, to include experiencing blasts and explosions near his face. The examiner is advised that the sole basis of a negative opinion cannot be the fact that the Veteran’s service treatment records are silent as to any bilateral eye disorder or complaints thereof. (D) For each identified diagnosed bilateral eye disorder other than a refractive error, to include cataracts, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that such disorder is caused or aggravated by his diabetes mellitus, type II. For any aggravation found, the examiner should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Clark, Associate Counsel