Citation Nr: 20040586 Decision Date: 06/15/20 Archive Date: 06/15/20 DOCKET NO. 18-04 416 DATE: June 15, 2020 ORDER New and material evidence having been received, the claim for service connection for a skin disability to include psoriasis and skin irritation is deemed reopened. New and material evidence having been received, the claim for service connection for a spinal disorder characterized by pain of the neck and back is deemed reopened. New and material evidence having been received, the claim for service connection for bilateral bunions is deemed reopened. Service connection for tinnitus is granted. REMANDED Service connection for a skin disability to include psoriasis and skin irritation is remanded. Service connection for a spinal disorder characterized by pain of the neck and back is remanded. Service connection for bilateral bunions is remanded. Service connection for bilateral flat feet is remanded. FINDINGS OF FACT 1. A January 2015 rating decision was issued denying service connection for a skin disability to include psoriasis and skin irritation, and additional evidence or a notice of disagreement (NOD) was not associated with the record within one year after notification of the decision; but the evidence received since the January 2015 rating decision is new, material, and give rise to a reasonable possibility of substantiating the Veteran’s claim. 2. A January 2015 rating decision was issued denying service connection for a spinal disorder characterized by pain of the neck and back, and additional evidence or a NOD was not associated with the record within one year after notification of the decision; but the evidence received since the January 2015 rating decision is new, material, and give rise to a reasonable possibility of substantiating the Veteran’s claim. 3. A January 2015 rating decision was issued denying service connection for bilateral bunions, and additional evidence or a NOD was not associated with the record within one year after notification of the decision; but the evidence received since the January 2015 rating decision is new, material, and give rise to a reasonable possibility of substantiating the Veteran’s claim. 4. The Veteran has a current diagnosis of tinnitus and has manifested continuous symptomology since separation from service. CONCLUSIONS OF LAW 1. The January 2015 rating decision denying service connection for a skin disability to include psoriasis and skin irritation is final; 38 U.S.C. § 4005 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2014); and new and material evidence has been received to reopen service connection for a skin disability to include psoriasis and skin irritation. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The January 2015 rating decision denying service connection for a spinal disorder characterized by pain of the neck and back is final; 38 U.S.C. § 4005 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2014); and new and material evidence has been received to reopen service connection for a spinal disorder characterized by pain of the neck and back. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The January 2015 rating decision denying service connection for bilateral bunions is final; 38 U.S.C. § 4005 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2014); and new and material evidence has been received to reopen service connection for a spinal disorder characterized by bilateral bunions. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1131; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from August 1980 to July 1984 and from November 1980 to July 1991. These matters come to the Board of Veterans’ Appeals on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO) issued in January 2015 and in May 2016. The Veteran testified at a personal hearing before the Board in February 2020, and a transcript of the hearing is of record. New and Material Evidence In order to reopen a claim which has been denied by a final decision, new and material evidence must be received. 38 U.S.C. § 5108. 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. 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) (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 evidence to be considered in making this new and material evidence determination is that added to the record since the last final denial on any basis. Evans v. Brown, 9 Vet. App. 27 (1996); see also Shade v. Shinseki, 24 Vet. App. 110, 120 (2010) (new and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof). Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance, because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. 1. New and material evidence having been received, the claim for service connection for a skin disability to include psoriasis and skin irritation is deemed reopened. At issue is whether the Veteran has submitted new and material evidence to reopen a previously denied claim for entitlement to service connection for a skin disability to include psoriasis and skin irritation. New and material evidence having been received, service connection for a skin disability is deemed reopened. The RO originally denied the Veteran service connection in January 2015. The decision became final after the Veteran failed to submit additional evidence or file a NOD within one year of notification of the decision. The Veteran subsequently filed a claim to reopen the issue, and, in June 2017, the RO declined to reopen the Veteran’s claim. The Veteran appealed. In the January 2015 rating decision, the RO denied the Veteran’s claim for service connection, because the Veteran’s skin disability was neither incurred in nor caused by a period of service. Since the January 2015 rating decision, the Veteran testified at a personal hearing before the Board in February 2020 that he manifested skin symptomology during his period of service. See Transcript. Therefore, the evidence submitted since the last final denial is new, material, and gives rise to a reasonable likelihood of substantiating the Veteran’s claim, and the Veteran’s claim for service connection for a skin disability is deemed reopened. 2. New and material evidence having been received, the claim for service connection for a spinal disorder characterized by pain of the neck and back is deemed reopened. At issue is whether the Veteran has submitted new and material evidence to reopen a previously denied claim for entitlement to service connection for a spinal disorder characterized by pain of the neck and back. New and material evidence having been received, service connection for a spinal disorder is deemed reopened. The RO originally denied the Veteran service connection in January 2015. The decision became final after the Veteran failed to submit additional evidence or file a NOD within one year of notification of the decision. The Veteran subsequently filed a claim to reopen the issue, and, in June 2017, the RO declined to reopen the Veteran’s claim. The Veteran appealed. In the January 2015 rating decision, the RO denied the Veteran’s claim for service connection (originally characterized as a claim for service connection for arthritis), because the Veteran’s spinal disability was neither incurred in nor caused by a period of service; and did not manifest within one year of separation from service. Since the January 2015 rating decision, the Veteran testified at a personal hearing before the Board in February 2020 that injured his spine during his period of service. See Transcript. Therefore, the evidence submitted since the last final denial is new, material, and gives rise to a reasonable likelihood of substantiating the Veteran’s claim, and the Veteran’s claim for service connection for a spinal disorder is deemed reopened. 3. New and material evidence having been received, the claim for service connection for bilateral bunions is deemed reopened. At issue is whether the Veteran has submitted new and material evidence to reopen a previously denied claim for entitlement to service connection for bilateral bunions. New and material evidence having been received, service connection for bilateral bunions is deemed reopened. The RO originally denied the Veteran service connection in January 2015. The decision became final after the Veteran failed to submit additional evidence or file a NOD within one year of notification of the decision. The Veteran subsequently filed a claim to reopen the issue, and, in June 2017, the RO declined to reopen the Veteran’s claim. The Veteran appealed. In the January 2015 rating decision, the RO denied the Veteran’s claim for service connection, because the Veteran’s bilateral bunions were neither incurred in nor caused by a period of service. Since the January 2015 rating decision, the Veteran testified at a personal hearing before the Board in February 2020 that he manifested feet symptoms. See Transcript. Therefore, the evidence submitted since the last final denial is new, material, and gives rise to a reasonable likelihood of substantiating the Veteran’s claim, and the Veteran’s claim for service connection for bilateral bunions is deemed reopened 4. Service connection for tinnitus is granted. At issue is whether the Veteran is entitled to service connection for tinnitus. The weight of the evidence indicates that the Veteran is entitled to service connection. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. “Service connection” basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Furthermore, service connection can be established through application of statutory presumptions, including for chronic diseases like diseases of the nervous system, when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. With regard to the claim for tinnitus however, the analysis and the result are different. The Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). As such, the primary role of the Board in adjudicating the tinnitus claim, is to assess the credibility of the Veteran’s statements. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, the Board finds the Veteran’s testimony during a personal hearing before the Board as to the onset of his tinnitus credible. See Transcript. The Veteran has been diagnosed with tinnitus, and he has credibly reported that his tinnitus began in-service and has continued to the present time. Id. The Veteran has not attempted to bolster or exaggerate his symptoms, and based on his reports of ringing, the Veteran was diagnosed with tinnitus. As such, the criteria for service connection for tinnitus have been met. In reaching this conclusion, the Board acknowledges that a VA examiner found that it was not likely that the Veteran’s tinnitus was related to his military service. The Board, however, finds the Veteran’s statements to be credible as to the onset and continuity of ear ringing, and the Board finds these statements sufficiently credible to refute the basis of the examiner’s conclusion. Thus, resolving any reasonable doubt in the Veteran’s favor, the Board finds that service connection for tinnitus is warranted, and the Veteran’s claim is granted. REASONS FOR REMAND 1. Service connection for a skin disability to include psoriasis and skin irritation is remanded. At issue is whether the Veteran is entitled to service connection for a skin disability to include psoriasis and skin irritation. The Veteran’s current treatment records indicate that the Veteran is manifesting psoriasis. The Veteran’s service treatment records indicate that the Veteran sought treatment for a rash on his head in May 1991 during the Veteran’s second period of service. As there is a potential link between the Veteran’s current diagnosis of psoriasis and an in-service incurrence of skin irritation, the Board concludes that sufficient evidence has been submitted to trigger VA’s duty to assist, and this matter must be remanded for a VA examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Service connection for a spinal disorder characterized by pain of the neck and back is remanded. At issue is whether the Veteran is entitled to service connection for a spinal disorder characterized by pain of the neck and back. The Veteran provided competent and credible testimony at a personal hearing before the Board that he was manifesting neck and back symptoms including neck and back pain. See Transcript. The Veteran’s service treatment records indicate that the Veteran sought treatment for spinal pain in December 1990 during the Veteran’s second period of service. As there is a potential link between the Veteran’s current spinal symptomology and an in-service incurrence of spinal pain, the Board concludes that sufficient evidence to trigger VA’s duty to assist has been submitted, and this matter must be remanded for a VA examination. See McLendon. 3. Service connection for bilateral bunions is remanded. 4. Service connection for bilateral flat feet is remanded. At issue is whether the Veteran is entitled to service connection for bilateral bunions and bilateral flat feet. The Veteran’s current treatment records indicate that the Veteran has been diagnosed with feet conditions. The Veteran provided competent and credible testimony at a personal hearing before the Board that he began to manifest feet symptoms during a period of service. See Transcript. As there is a potential link between the Veteran’s current diagnosed feet conditions and an in-service incurrence of feet symptomology, the Board concludes that sufficient evidence to trigger VA’s duty to assist has been submitted, and these matters must be remanded for a VA examination. See McLendon.   The matters are REMANDED for the following action: 1. Arrange to provide the Veteran with a VA examination in order to answer the following question. Is it at least as likely as not (50 percent or more) that a medical nexus exists between an in-service incurrence or a current diagnosis of psoriasis? Why or why not? 2. Arrange to provide the Veteran with a VA examination in order to answer the following question. Is it at least as likely as not (50 percent or more) that a medical nexus exists between an in-service incurrence and a current diagnosis of spinal disability to include one characterized by back or neck pain? Why or why not? 3. Arrange to provide the Veteran with a VA examination in order to answer the following question. Is it at least as likely as not (50 percent or more) that a medical nexus exists between an in-service incurrence and a current diagnosis of a foot condition to include bilateral bunions and bilateral flat feet? Why or why not? DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Seaton 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.