Citation Nr: 20003510 Decision Date: 01/16/20 Archive Date: 03/05/20 DOCKET NO. 16-45 278 DATE: January 16, 2020 ORDER Whether new and material evidence has been received to reopen service connection for lung tumors, now claimed as lung condition, is granted. Whether new and material evidence has been received to reopen service connection for skin rash on chest and arms, now claimed as skin condition, is granted. REMANDED Entitlement to service connection for lung condition, to include tumors, is remanded. Entitlement to service connection for median nerve neuropathy is remanded. Entitlement to service connection for a skin condition is remanded. FINDINGS OF FACT 1. The October 2012 rating decision, which denied service connection for lung tumors and the December 2012 rating decision, which denied service connection for rash on chest and arms, became final, as the Veteran did not perfect an appeal of the decision or submit new and material evidence within a year of the rating decisions. 2. Since the October 2012 and December 2012 rating decisions, the Veteran has submitted additional evidence that is new and material to raise a reasonable possibility of substantiating the Veteran’s claim for service connection for a lung condition and service connection for skin condition. CONCLUSIONS OF LAW 1. The October 2012 and December 2012 rating decisions became final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received to reopen service connection for lung tumors, now referred to as lung condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence has been received to reopen service connection for rash on chest and arms, now referred to skin condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1969 to August 1971. In October 2019, the Veteran was provided a hearing with the undersigned Veterans Law Judge and a transcript of the proceeding is of record. New and Material Evidence The Veteran is seeking to reopen service connection for lung tumors and rash on chest and arms, now referred to as lung condition and skin condition The claims were previously denied in October 2012 and December 2012 rating decisions due to there being evidence showing the Veteran’s conditions were related to his active duty service. The rating decisions became final, as the Veteran did not appeal the decisions or submit new and material evidence within one year of the rating decisions. Since the prior final decisions, the Veteran has submitted additional medical records, and has been provided a Board hearing. The Board finds this evidence is new, as it has not been part of the record before, and material, as the Veteran provided additional information as to a possible etiology of his conditions during his Board hearing. Therefore, the evidence is to be considered new and material, and the claims are reopened. REASONS FOR REMAND 1. Entitlement to Service Connection: Lung Condition and Median Nerve Neuropathy The Veteran contends that his lung condition and median nerve neuropathy are related to his active duty service. The Board finds that the Veteran has not been afforded a VA examination for the claims on appeal. VA’s duty to assist includes providing a medical examination and obtaining an opinion when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159 (2019). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of a diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The threshold for finding a link between a current disability and service so as to require medical examination is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. Here, the evidence of record shows the Veteran has been diagnosed with lung tumors and lung infection, and median nerve neuropathy. Further, in the Veteran’s October 2019 Board hearing, the Veteran contended he had Agent Orange exposure. The Board notes the Veteran’s military records confirm he had qualifying service in the Republic of Vietnam and thus, exposure to Agent Orange/herbicides is presumed. Given all of the above, the Board finds that a remand is required in order to obtain medical examinations with opinions addressing and the nature and etiologies of the claimed conditions. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to Service Connection: Skin Condition The Veteran contends that his skin condition is related to his active duty service, to include in-service complaints of rash on face and thighs. In November 2012, the Veteran received a VA examination. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service event or injury. The examiner rationalized that the Veteran’s service records show one instance of rash on face and rash on his thighs. However, there were no other notes found to indicate any chronic skin condition and no other record of rash in the areas currently affected on examination. The Board finds that that the November 2012 VA opinion is inadequate to fairly adjudicate the Veteran’s claim for service connection. Although the examiner opined the Veteran’s skin condition was not related to his in-service instances of rash, the examiner provided no medical explanation as to why his current condition was not related to his documented in-service rashes. Further, as noted above, the Veteran served in the Republic of Vietnam and exposure to herbicides is presumed. Therefore, an opinion as to whether his current skin condition is caused or related to his presumed Agent Orange/herbicide exposure should have also been provided. Thus, the Board finds that a remand is required in order to obtain a new medical examination with an opinion addressing the nature and etiology of the claimed condition. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s electronic claims file any outstanding VA and private treatment records relevant to the Veteran’s claimed conditions. 2. Once all outstanding records have been associated with the file, schedule the Veteran for an examination with the appropriate examiners to determine the etiologies of the Veteran’s lung condition and median nerve neuropathy. The claims file should be reviewed in conjunction with the examination and a copy of this remand should be provided to the examiner. Following a review of the entire record, the Veteran’s competent lay statements, as well as the Veteran’s report regarding the onset and progression of his current symptomatology, the examiner should opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s lung condition and median nerve neuropathy had their onset during, or are otherwise related to, his active duty service, to include his presumed exposure to Agent Orange/herbicides. A complete rationale for all opinions expressed should be provided and must not be based solely on the lack of any in-service records. If the examiner is unable to provide an opinion without resort to speculation, he/she should explain whether the inability is due to the limits of the examiner’s medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. 3. Schedule the Veteran for an examination with an appropriate examiner to determine the etiology of the Veteran’s skin condition. The claims file should be reviewed in conjunction with the examination a copy of this remand should be provided to the examiner. Following a review of the entire record, the Veteran’s competent lay statements, as well as the Veteran’s report regarding the onset and progression of his current symptomatology, the examiner should opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s skin condition had its onset during, or is otherwise related to, his active duty service, to include his presumed exposure to Agent Orange/herbicides and the June and November 1970 diagnoses of rash on thighs and face. A complete rationale for all opinions expressed should be provided and must not be based solely on the lack of any in-service records. If the examiner is unable to provide an opinion without resort to speculation, he/she should explain whether the inability is due to the limits of the examiner’s medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Negron, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.