Citation Nr: 20019795 Decision Date: 03/17/20 Archive Date: 03/17/20 DOCKET NO. 16-52 966 DATE: March 17, 2020 ORDER New and material evidence having been submitted, a claim for service connection for an eye disability, to include dryness (“eye disability”), is reopened. New and material evidence having been submitted, a claim for service connection for a fungal skin infection (“skin disability”), is reopened. Entitlement to service connection for an eye disability is granted. Entitlement to service connection for a skin disability is granted. FINDINGS OF FACT 1. The claim for service connection for an eye disability was previously denied in a June 2003 rating decision, the Veteran did not appeal the decision, and no new evidence pertinent to the claim was received within one year from the date that the notice of the decision was mailed to the Veteran. 2. Evidence associated with the claims file subsequent to a final June 2003 rating decision for service connection for an eye disability relates to an unestablished fact, is not cumulative or redundant of the evidence previously of record and is sufficient to raise a reasonable possibility of substantiating the claim. 3. The claim for service connection for a skin disability was previously denied in a June 2003 rating decision, the Veteran did not appeal the decision, and no new evidence pertinent to the claim was received within one year from the date that the notice of the decision was mailed to the Veteran. 4. Evidence associated with the claims file subsequent to a final June 2003 rating decision for service connection for a skin disability relates to an unestablished fact, is not cumulative or redundant of the evidence previously of record and is sufficient to raise a reasonable possibility of substantiating the claim. 5. Resolving reasonable doubt in the Veteran’s favor, his eye disability is at least as likely as not related to his period of active duty service. 6. Resolving reasonable doubt in the Veteran’s favor, his skin disability is at least as likely as not related to his period of active duty service. CONCLUSIONS OF LAW 1. The June 2003 rating decision denying a claim to service connection for an eye disability is final. 38 U.S.C. § 7105 (2014); 38 C.F.R. § 20.1103 (2018). 2. Evidence received since a final June 2003 rating decision is new and material; therefore, the Veteran’s claim of entitlement to service connection for an eye disability is reopened. 38 U.S.C. §§ 5108, 7105(c) (2014); 38 C.F.R. §§ 3.156(a), 20.1103 (2018). 3. The June 2003 rating decision, which denied the Veteran’s claim of service connection for a skin disability, became final. 38 U.S.C. § 7105(c) (2014); 38 C.F.R. § 20.1103 (2018). 4. Evidence received since a final June 2003 rating decision is new and material; therefore, the Veteran’s claim of entitlement to service connection for a skin disability is reopened. 38 U.S.C. §§ 5108, 7105(c) (2014); 38 C.F.R. §§ 3.156(a), 20.1103 (2018). 5. The criteria for service connection for an eye disability have been met. 38 U.S.C. §§ 1110, 5107 (2014); 38 C.F.R. § 3.303 (2018). 6. The criteria for service connection for a skin disability have been met. 38 U.S.C. §§ 1110, 5107 (2014); 38 C.F.R. § 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1967 to February 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a January 2020 videoconference hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims folder. The Board notes a June 2018 rating decision granted posttraumatic stress disorder (PTSD), with a 100 percent evaluation, effective January 31, 2018. The Veteran’s combined evaluation is 100 percent. New and Material Evidence VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). “New” evidence is evidence not previously submitted to agency decision makers and “material” evidence is 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 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). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim on any basis, whether a decision on the underlying merits or, a petition to reopen. Evans v. Brown, 9 Vet. App. 273, 283 (1996). In Shade v. Shinseki, 24 Vet. App. 100 (2010), the United States Court of Appeals for Veterans Claims (Court) held that § 3.159(c)(4) does not require new and material evidence as to each previously unproven element of a claim for the claim to be reopened and the duty to provide an examination triggered. In a fact pattern where a prior denial was based on lack of current disability and nexus, the Court found that newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. Regardless of any RO determinations that new and material evidence has been submitted to reopen service connection, the Board must still determine whether new and material evidence has been submitted in this matter. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for an eye disability The Veteran seeks to reopen his claim for service connection for an eye disability. The Veteran’s eye disability claim was originally denied in a June 2003 rating decision. The denial was due to a lack of nexus, i.e. the evidence failed to show the current disability was related to service. The evidence of record at the time of the June 2003 rating decision included the service treatment records, military personnel records, and 2002 to 2003 treatment records noting a 1968 eye surgery and current eye treatment. The Veteran did not timely appeal the eye disability claim, nor did he submit new and material evidence. Therefore, the March 2014 rating decision became final. 38 U.S.C. § 7105 (2014); 38 C.F.R. § 20.1103 (2018). The relevant evidence received since the final June 2003 rating decision is detailed below. Medical treatment records from 2002 to 2004 reflecting assessments of refractive error and dry eye syndrome; VA treatment records from 2008 to 2015 reflecting treatment for dry eyes; a December 2015 VA examination indicating the Veteran has no diagnosed eye disability and an etiology opinion finding the undiagnosed disability is not related to service. As the above described evidence includes an examination report addressing the question of nexus to service, evidence submitted since the previous rating decision addresses an unestablished fact related to an unproven element of the Veteran’s claim for service connection for a psychiatric disability. See Justus v. Principi, 3 Vet. App. 510, 512-13 (1992); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Shade v. Shinseki, 24 Vet. App. 110 (2010). Thus, this evidence is both “new,” as it has not been previously considered by the VA, and “material,” as it raises a reasonable possibility of substantiating the Veteran’s service connection claim. Therefore, the claim to reopen is granted. 2. Whether new and material evidence has been received to open a claim of entitlement to service connection for a skin disability The Veteran seeks to reopen his claim for service connection for a skin disability. The Veteran’s eye disability claim was originally denied in a June 2003 rating decision. The denial was due to a lack of diagnosis. The evidence of record at the time of the June 2003 rating decision included the service treatment records, military personnel records, and 2002 to 2003 treatment records noting a past history of tinea pedis and dermatophytosis of the skin. The Veteran did not timely appeal the skin disability claim, nor did he submit new and material evidence. Therefore, the March 2014 rating decision became final. 38 U.S.C. § 7105 (2014); 38 C.F.R. § 20.1103 (2018). The relevant evidence received since the final June 2003 rating decision is detailed below. Medical treatment records from 2002 to 2004 reflecting a history of fungal feet and active treatment for toenail fungus; July 2007 VA treatment records noting a diagnosis for keratosis punctata of the palmer creases involving palms and soles; VA treatment records from 2012 to 2015 reflecting treatment for fungal feet; A December 2015 VA examination noting a 1970 diagnosis of tinea corporis and an etiology opinion finding the diagnosed disability is not related to service. As the above described evidence includes a diagnosis for a skin condition and contains an examination report addressing the question of nexus to service, evidence submitted since the previous rating decision addresses an unestablished fact related to an unproven element of the Veteran’s claim for service connection for a psychiatric disability. See Justus v. Principi, 3 Vet. App. 510, 512-13 (1992); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Shade v. Shinseki, 24 Vet. App. 110 (2010). Thus, this evidence is both “new,” as it has not been previously considered by the VA, and “material,” as it raises a reasonable possibility of substantiating the Veteran’s service connection claim. Therefore, the claim to reopen is granted. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection for an eye disability The Veteran claims he suffers from an eye disability related to his in-service eye injury. Specifically, he alleges while working as a security police, debris from an airplane crash in Vietnam entered his eyes, resulting in surgery and scarring of the eye tissue. For the reasons discussed below, the Board agrees service connection is warranted. Service treatment records (STRs) for June 1968 reflect treatment for “barleycorn” in the right eye. A consultation dated September 30, 1968 noted a cyst in the left eyelid, which was assessed as a probable, small melanoma. In October 1968 there was a follow-up note indicating the puffiness, due to tissue thickening in the eye, would take two to three months to return to normal. In November 2002, VA treatment records noted, in 1968 the Veteran had surgery on both eyes to remove particles from an explosion. Metal particles were removed, however the procedure “scarred the tear ducts.” The Veteran needs to use artificial tear medication regularly, otherwise eyes feel very dry. The optometrist noted the periphery was clear with no holes, breaks, or tears in either eye. In November 2003, treatment records noted an assessment of refractive error and dry eye syndrome. In November 2004, treatment records noted an assessment of simple astigmatism and dry eyes. The Veteran was prescribed artificial tears medication for dry eyes. A December 2015 VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. An eye diagnosis was not found. Review of the file revealed September 2015 records noting a small corneal scar. The examiner opined the condition is less likely than not related to service. In the rationale he noted the Veteran has no significant sequelae of an eye injury and he has good visual acuity. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds resolving reasonable doubt in the Veteran’s favor, his eye disability is related to service. The Board finds the medical records are more probative than the December 2015 VA examination. The VA examination rational is inadequate and inconsistent. The examiner found there was no current eye condition, however he opined the condition is not related to service. He noted a review of the file, however he did not address whether any eye condition is related to the plane crash, nor did he address the 2003 and 2004 medical records finding the Veteran suffers from dry eye syndrome and the prescribed artificial eye medication. The examiner noted the Veteran’s corneal scar but did not address whether it was related to his in-service eye treatment. The post service treatment records reflect a diagnosis and treatment for dry eye syndrome. Therefore, the post service medical records are more probative. As noted above, the Veteran is in receipt of 100 percent disability for his service-connected PTSD, however, rather than remand for a VA opinion on the eye condition, the Board will resolve doubt in the Veteran’s favor and grant service connection as directly related to his in-service treatment for barleycorn, the noted cyst, and follow up treatment in 1968. Accordingly, the Board finds that the criteria for service connection for a skin condition have been approximated and the claim will be granted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for a skin disability The Veteran claims he suffers from a skin disability related to his in-service tinea corporis diagnosis. For the reasons discussed below, the Board agrees. STRs for May 1970 noted a diagnosis and treatment for tinea corporis. In February 2003, medical records noted tinea pedis is a medical issue for the Veteran. In July 2007, VA treatment records noted a dermatology follow up appointment for keratosis punctata of the palmer creases involving palms and soles. The Veteran’s medication was increased, and he was scheduled to follow up in 6 months. In November 2012 VA treatment records, an assessment noted fungal feet. In August 2015 VA treatment records noted the Veteran is actively treated for fungal feet. A December 2015 VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. A 1970 diagnosis of tinea corporis was noted. The Veteran reported the in-service prescribed medication never resolved the issue. He has had rashes on his palms and soles since service. The examiner opined the condition is less likely than not related to service. In the rationale he noted the veteran needs further evaluation (biopsy or KOH prep) of this area in a regular dermatology visit because the examiner is unsure “if the scaliness is dyshidrosiform eczema or tinea pedis.” The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds resolving reasonable doubt in the Veteran’s favor, the current skin condition is related to service. The Board finds the medical records are more probative than the December 2015 VA examination. The VA examination rational is inadequate as the examiner acknowledges there is a skin condition but he’s unsure if it is eczema or tinea pedis. Furthermore, despite noting a follow up with a dermatologist is needed, he proceeds to provide a negative etiology opinion and the rationale does not state why. The examination is internally inconsistent. The medical records indicate the Veteran is being treated for fungal feet. He was treated for tinea corporis in service and the VA examiner has concluded the condition could be tinea corporis. Additionally, the Veteran reported the in-service prescribed medication never resolved the issue and he has had rashes on his palms and soles since service. There is no contrary evidence to rebut his statement and the July 2007 medical records confirm the rashes on his palms and soles. As noted above, the Veteran is in receipt of 100 percent disability for his service-connected PTSD however, rather than remand for a VA opinion on the skin condition, the Board will resolve doubt in the Veteran’s favor and grant service connection as directly related to his in-service tinea corporis diagnosis. Accordingly, the Board finds that the criteria for service connection for a skin condition have been approximated and the claim will be granted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jackman, 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.