Citation Nr: 20044597 Decision Date: 07/02/20 Archive Date: 07/02/20 DOCKET NO. 17-44 361 DATE: July 2, 2020 ORDER The claim of service connection for a skin condition is reopened; to this limited extent, the appeal is granted. The claim of service connection for a back condition is reopened; to this limited extent, the appeal is granted. The claim of service connection for a neck condition is reopened; to this limited extent, the appeal is granted. REMANDED Entitlement to service connection for a skin condition is remanded. Entitlement to service connection for a bilateral foot condition is remanded. Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for back pain is remanded. Entitlement to service connection for neck pain is remanded. FINDINGS OF FACT 1. Service connection for a skin condition, back pain, and neck pain was denied in an unappealed June 2011 rating decision on the basis that the conditions were not shown to have onset in service and a causal nexus was not established. 2. Evidence received since the June 2011 rating decision was not previously considered by agency decision makers; is not cumulative and redundant of evidence already of record; relates to an unestablished fact; and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria to reopen the claim of entitlement to service connection for a skin condition have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria to reopen the claim of entitlement to service connection for a back condition have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria to reopen the claim of entitlement to service connection for a neck condition have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1992 to January 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge; a transcript of the hearing is of record.  Application to Reopen Previously Denied Claims The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. Id. 1. The claim of service connection for a skin condition is reopened; to this limited extent, the appeal is granted. 2. The claim of service connection for a back condition is reopened; to this limited extent, the appeal is granted. 3. The claim of service connection for a neck condition is reopened; to this limited extent, the appeal is granted. In June 2011 the RO denied the Veteran’s service connection claim for a skin condition, back pain, and neck pain on the basis that there was no evidence of a skin, back or neck condition during service or within a presumptive period, and no evidence of causal nexus. The Veteran did not initiate an appeal of this decision and it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. New and material evidence was not received within a year of notice of the decision. 38 C.F.R. § 3.156(b). The Veteran submitted an application to reopen these claims in June 2013. The RO declined to reopen them in the rating decision currently on appeal citing a lack of new and material evidence. At the time of the last final rating decision issued in June 2011, the evidence included service dental treatment records and the Veteran’s DD Form 214. The dental records did not show any relevant diagnoses or treatment. Since the last final denial, VA treatment records and a February 2020 Board hearing transcript were added to the file. Of note, the hearing transcript contains the Veteran’s self-reported history of back and neck injuries in service from a motor vehicle accident, and his development of a recurrent keloid problem that onset after shaving in basic training. He testified that the current difficulties with his back, neck, and skin all continued after service discharge. The hearing testimony is new and material as it relates to in-service events and causal nexus- unestablished facts necessary to substantiate the claim. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). When considered with the evidence of record, the duty to assist is triggered. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Thus, the claims for service connection for skin, back, and neck conditions are reopened. These issues are further addressed in the remand section below. REASONS FOR REMAND 4. Entitlement to service connection for a skin condition is remanded. The Veteran contends keloids developed on his face and body after being required to shave his face with straight razors during bootcamp, and after receiving pre-deployment air gun inoculations in his arms. See Hearing Tr. pg. 8. He has reported that his skin problems continued after service. Service treatment records are not available. The Veteran testified to seeking treatment from a private clinician and the University of Chicago for his keloids. These records should be obtained on remand. The Veteran has not been afforded a VA examination. On remand an examination or opinion should be obtained to determine the nature and etiology of his skin condition, claimed as keloids. McLendon v. Nicholson, 20 Vet. App. 79 (2006).   5. Entitlement to service connection for a bilateral foot condition is remanded. 6. Entitlement to service connection for a left knee condition is remanded. 7. Entitlement to service connection for a right knee condition is remanded. 8. Entitlement to service connection for back pain is remanded. 9. Entitlement to service connection for neck pain is remanded. During his February 2020 Board hearing, the Veteran asserted that his bilateral knee, back and neck conditions stem from an in-service motor vehicle accident. He and his representative referred to a February 1993 military record which purportedly indicated he was admitted to Portsmouth Naval Hospital overnight or a few days for observation following a vehicle accident. He also reported that he subsequently received physical therapy for about 18 months at this facility. This service record is not contained in the Veteran’s file; on remand, is asked to submit it for the Board’s review. The Veteran also testified that his bilateral foot condition is due to having worn ‘protective shoes’ in service. He stated that he continued to experience the pain and discomfort his feet after service. The Veteran further testified that he sought private treatment for his feet and knees within one year of discharge from military service. Those records are also not contained within the file. VA treatment records, which are current as of September 2014, show complaints of chronic pain, but do not currently reflect any relevant diagnosed disabilities. The Board cannot make a fully-informed decision on the issue of service connection for the Veteran’s bilateral foot, bilateral knee, back pain, and neck pain because no VA examiner has opined whether the Veteran has disabilities that onset during service, or are related service. The Veteran is competent to describe a symptom such as pain and when it onset. Considering the absence of his service treatment records, and his competent report of symptom onset in service, a VA examination or opinion should be obtained regarding to determine the nature and etiology of his bilateral foot, bilateral knee, back pain and neck pain. Additionally, a remand is necessary to obtain the Veteran’s post-service VA treatment records and updated VA treatment records. The matters are REMANDED for the following action: 1. Obtain records of any treatment, including in-patient treatment, at Portsmouth Naval Hospital beginning in February 1993. Document all requests for information as well as all responses in the claims file. 2. Update VA treatment records from September 2014 to the present, to include from the Jesse Brown VA Medical Center. 3. Ask the Veteran to complete a VA Form 21-4142 for all doctors and facilities, including the University of Chicago Medical Center and the Midwest Physician Group/Advocate Medical Group, that have treated his claimed conditions. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 4. After supplementing the claim file with any additional evidence as a result of this Remand, obtain an opinion from an appropriate clinician(s) regarding the nature and etiology of the Veteran’s skin condition (claimed as keloids) and his claimed bilateral foot, bilateral knee, back and neck conditions. The examiner(s) must review the claim file. If in-person examinations are feasible, such should be arranged. a) The examiner must opine as to whether any current skin condition, including keloids, is at least as likely as not related to an in-service injury, event, or disease, including the Veteran reported history of having to dry shave with straight razors during bootcamp and receiving pre-deployment air gun inoculations in his arms. b) For any bilateral foot, bilateral knee, back and neck conditions found, the examiner must opine as to whether such is at least as likely as not related to an in-service injury, event, or disease. The examiner is advised that the Veteran asserts his bilateral knees, neck and back were injured during a motor vehicle accident in February 1993. He also asserts testimony that his bilateral foot condition is due to the type of military boots worn during service. He reports pain in these areas since service. A fully explained rationale must be provided for each opinion. The examiner is advised that a medical opinion based solely on the absence of documentation in the record is considered inadequate; the examiner must consider the Veteran’s lay statements in rendering the opinion and rationale. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, he or she must explain why this is so. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Telamour, 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.