Citation Nr: 20022041 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 17-26 481 DATE: March 30, 2020 ORDER The application to reopen the claim of entitlement to service connection for lumbar spine degenerative disc disease is granted. The application to reopen the claim of entitlement to service connection for a skin disability claimed as bumps-lesions arms and legs, is denied. REMANDED Service connection for lumbar spine disability is remanded. FINDINGS OF FACT 1. In an unappealed November 2007 rating decision, the RO denied service connection for lumbar spine degenerative disc disease. 2. Evidence received since the November 2007 rating decision is not cumulative and redundant of evidence previously of record and does relate to an unestablished fact necessary to substantiate the claim of service connection for lumbar spine degenerative disc disease. 3. In an unappealed June 2014 rating decision, the RO denied service connection for a skin disability claimed as bumps-lesions arms and legs. 4. Evidence received since the June 2014 rating decision is cumulative and redundant of evidence previously of record and does not relate to an unestablished fact necessary to substantiate the claim of service connection for a skin disability claimed as bumps-lesions arms and legs. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of service connection for lumbar spine degenerative disc disease, the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence has not been received to reopen the claim of service connection for a skin disability claimed as bumps-lesions arms and legs, the claim is not 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 to include from November 1986 to April 1992 and from October 2001 to July 2003. He appeals these claims stemming from a December 2015 rating decision. The Veteran provided testimony before the undersigned Veterans Law Judge (VLJ) in November 2019. The VLJ clarified the issues on appeal; clarified the concept of service connection and new and material evidence; identified potential evidentiary defects; clarified the type of evidence that would support the Veteran’s claims; inquired as to the existence of potential outstanding records; and held the record open for 60 days for the submission of additional evidence. The actions of the VLJ comply with 38 C.F.R. § 3.103.   Additional evidence and argument have been added to the record and the 60-day period has passed. New and Material Evidence 1. Lumbar spine degenerative disc disease In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as 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. See 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). 38 C.F.R. § 3.156 (a) creates a low threshold. Shade v. Shinseki, 24 Vet. App. 110 (2010). The regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” See id. In a June 2014 rating decision, the RO declined to reopen a November 2007 rating decision that denied the claim of service connection for lumbar spine disability based on the finding that a lumbar spine disability preexisted his second period of service and was not aggravated in service. However, the June 2014 decision appears to not have considered a May 2014 opinion of Dr. W. Also, in connection with what was styled as a September 2015 claim to reopen, the Veteran testified that he had injured his low back on active duty in 2010. Added evidence includes a memo from the Air Force certifying the Veteran had multiple Qualifying Title 10 Active Duty service from October 2001 to March 2008. Also, the Veteran submitted treatment records from a period in 2010 and 2011 associated with a line of duty investigation which he claims suggest the back may have been injured or aggravated on active duty in 2010 or 2011. Also the May 2014 report of Dr. W., received in June 2014, was resubmitted. It reflects that the Veteran’s low back disorder may have been caused or aggravated by military service duty dating 2001 through 2010. The Veteran also testified that he hurt his back when deployed during the Gulf War carrying heavy packs and doing heavy manual labor. Here, the Veteran has presented testimony that he may have had periods of service qualifying as active duty in 2010 and or 2011 that have not been verified despite his efforts. (Credibility is assumed in an application to reopen.) Dr. W.’s opinion, if accepted as credible. is in favor of the claim. Also, the Veteran he disclosed details of back injury in service in 2002 due to heavy lifting. Under the circumstances of this claim, there is added evidence which meets the low threshold for new and material evidence. Reopening of the claim is warranted. 2. Skin disability claimed as bumps-lesions arms and legs In the June 2014 rating decision, the RO denied the claim of service connection for skin disability claimed as bumps-lesions arms and legs on the basis that there was no current disability. It was noted that he had rash, papular rash, or eczema type rash, in service in 1989 and 1991, but that there was no current disability shown in the post-service record. No notice of disagreement or new and material evidence was submitted within one year and the decision became final. In September 2015 the Veteran attempted to reopen the claim. He testified that he believes he has current disability of the skin. He reported he saw a doctor after his Gulf War service in 2003 but that doctor closed and moved. The Veteran underwent a July 2019 VA examination of the skin which disclosed no current diagnosis or active case of urticaria. The examiner noted that urticaria was diagnosed in 1989 when Veteran was on active duty but was deemed secondary to an allergic reaction to unknown trigger. The examiner noted no further instances of urticaria in STRs. Service connection for urticaria and pseudofolliculitis barbae was denied in an October 2019 rating decision, and those issues are not part of this appeal. The Board finds that the evidence submitted since the June 2014 denial is redundant or cumulative of the evidence of record at the time of the last prior final decision. The RO had previously considered the fact that the Veteran had no current skin disability claimed as bumps-lesions arms and legs. There is no new skin disorder of this nature noted. The 2019 skin examination establishes this. The Veteran’s assertions that there is current skin disability are not new but instead are redundant. The critical facts have not changed: there is no current skin disability characterized by bumps and lesions on the arms and legs. Consequently, the claim may not be reopened because no new and material evidence has been received. While 38 C.F.R. § 3.156 (a) creates a low threshold, and does not require new and material evidence as to each previously unproven element of a claim, the Veteran has not presented new and material evidence with respect to any previously unproven element of the claim. This claim to reopen is denied. REASONS FOR REMAND Lumbar spine degenerative disability The Veteran urges that current lumbar disability is due to the aforementioned injuries and aggravations in service. Significantly, he asserts that he had additional periods of active service in 2010 and 2011. While he has presented testimony and some treatment records which seem consistent with this, such service remains unverified. Also, Dr. W. has stated that there may be a connection between the back disorder and service in 2001, 2002, 2006, 2008 and 2010. Under the circumstances, the Board finds that the Veteran’s service should be verified to ascertain whether there was any additional active service. Then, a medical opinion should be obtained as to whether any current low back disorder is related to a qualifying period of service. Therefore, remand is necessary. 38 C.F.R. § 3.159 (c). The matters are REMANDED for the following action: 1. Verify the Veteran’s periods of Federal service to include service after July 2003. Then, the Veteran should be scheduled for a VA examination by an appropriate clinician to ascertain whether the Veteran has lumbar spine degenerative disc disease that is at least as likely as not related to any active service, either by incurrence or based on aggravation. The claims file must be reviewed. The examiner should obtain a complete medical history   concerning the Veteran’s alleged in-service injury. The examiner should specifically address any etiological theories raised by the Veteran at the examination. A complete rationale for the medical opinion is required. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. RIPPEL 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.