Citation Nr: 20052997 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 18-00 438 DATE: August 10, 2020 ORDER New and material evidence, having been received, the claim for entitlement to service connection for a chest disability is reopened. REMANDED Entitlement to service connection for a chest disability is remanded. Entitlement to service connection for pseudofolliculitis barbae (PFB) is remanded. FINDINGS OF FACT 1. In an October 2005 rating decision, the Regional Office (RO) denied the Veteran’s claim of entitlement to service connection for a chest disability. The RO notified him accordingly in October 2005. The Veteran did not file a Notice of Disagreement (NOD) or submit additional relevant evidence or argument within one year. 2. Additional, non-cumulative evidence received since the October 2005 rating decision relates to unestablished facts necessary to substantiate the service connection claim for a chest disability and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The October 2005 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. 2. New and material evidence having been received, the claim of entitlement to service connection for a chest disability is reopened. 38 U.S.C. §§ 5107, 5108, 7105; 38 C.F.R. §§ 3.156, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active service with the United States Air Force from March 1990 to March 1996. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision of a Department of Veterans Affairs (VA) RO. In April 2019, the Board issued a decision which denied entitlement to service connection for PFB. The Board decision also determined that new and material evidence for entitlement to service connection for a chest disability had not been presented. Reopening of the chest disability claim was denied. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In February 2020, the Veteran and the Secretary of the Veterans Affairs (collectively, as parties) filed a Joint Motion for Partial Remand (JMPR). The parties requested that the Court vacate the Board’s April 2019 decision in part and remand the matter for further consideration and instructions consistent with the JMPR. The JMPR stipulated that the Board reassess whether the Veteran submitted new and material evidence as to his previously denied claim of entitlement to service connection for a chest disability. The Court further noted that the Veteran had palpitations likely due to occasional premature ventricular contractions (PVCs). The JMPR also stipulated that the Board address whether lay testimony of the Veteran was competent to diagnosis PFB. The Court granted the JMPR in February 2020. In February 2020, the Veteran filed a VA 21-526EZ for entitlement to service connection for high blood pressure (also known as hypertension). The modernized review system, also known as the Appeals Modernization Act (AMA), applies to the Veteran’s claim for high blood pressure. The Veteran through his attorney withdrew high blood pressure from legacy consideration by filing a separate claim under AMA during this ongoing appeal. As such, the Board will not consider or address hypertension as to the Veteran’s claim for a chest disability. 1. New and material evidence having been received, the claim of entitlement to service connection for a chest disability is reopened. Generally, if a claim of entitlement to service connection has been previously denied, by the Board or by a RO, that decision is final, unless the Veteran appealed in a timely manner. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. However, a previous claim of entitlement to service connection can be reopened if the Veteran files again and if new and material evidence is presented. 38 U.S.C. § 5108. The VA is required to review all the evidence submitted by a Veteran since the last final denial of the claim in order to determine whether a claim must be reopened and readjudicated on the merits. Glynn v. Brown, 6 Vet. App. 523 (1994). “New” evidence means not previously part of the actual records before the agency adjudicators. “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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Smith v. West, 12 Vet. App. 312 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). Shade further holds that 38 C.F.R. § 3.156 “suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim [.]” Id. The Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, the RO denied the Veteran’s original service connection claim for a chest disability in an October 2005 rating decision. The RO determined that there was no evidence that the Veteran’s claimed chest condition existed. As the Veteran did not appeal that denial or submit any evidence within one year, it became final. In April 2016, the Veteran filed a new application on a VA 21-526EZ form, for “chest pains”, which was deemed a claim to reopen the issue of entitlement to service connection for a chest disability. The Veteran had a cardiology consultation at the VA in April 2017. The cardiologist found that the Veteran had minimal palpitations likely due to occasional PVCs. See CAPRI received March 2020. The Veteran also reported palpitations to his primary care providers. See Medical Treatment Records-Non-Government Facility received March 2020. These records support that the Veteran, at a minimum, likely has a current disability. Furthermore, the Veteran reported chest pain during service. See STR-Medical received November 2016. The VA has received additional, presumptively credible statements from the Veteran describing irregular heartbeat and chest pain during service. See VA 21-4138 and VA 21-526EZ received February 2020. The bar to reopening a claim for new and material evidence is low. Shade, 24 Vet. App. 110. The evidence submitted since the prior, final October 2005 denial, relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. Therefore, such evidence is new and material, and the claim for service connection for a chest disability is reopened. REASONS FOR REMAND 1. Entitlement to service connection for chest disability is remanded. According to the August 2016 rating decision, and the November 2017 Statement of the Case (SOC), the RO did not reopen the Veteran’s claim for a chest disability. The RO stated that while the Veteran submitted new evidence, the evidence was not material, because the cardiology work-up was “essentially normal.” See SOC dated November 2017. As discussed above, the Board is reopening the claim for a chest disability. At a minimum, the VA cardiology consultation supports that the Veteran has a current disability related to his chest. See CAPRI received March 2020. The Board specifically notes, as to the Veteran’s chest, his complaints of palpitations and the corresponding diagnosis of palpitations with PVCs. As such, the issue must be remanded to the RO for adjudication on its merits. See Hickson v. Shinseki, 23 Vet. App. 394 (2010). 2. Entitlement to service connection for PFB is remanded. Although further delay is regrettable, a remand is necessary for the following development. The Veteran contends that he has had PFB since service. He reports that during service, he had to shave on a regular basis. He developed bumps on his chin and the side of his mouth. He contends that shaving during service caused him to develop PFB. See VA 21-4138 and VA 21-526EZ received February 2020. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr v. Nicholson, 21. Vet. App. 303 (2007). While the Veteran may report lay observable symptomatology, the issue as to whether his current symptoms are caused by his service, is a medically complex question, requiring medical knowledge and training. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Since there is insufficient competent medical evidence on file for the VA to decide the claim, the Board finds that the VA has a duty to assist the Veteran by providing a VA examination and opinion. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4)(i) (2018). Additionally, a review of the claims file reveals that there are outstanding service treatment records. The Board notes that the Veteran’s separation examination report is not of record. In light of the missing service treatment records and the heightened duty to assist in cases involving missing service treatment records, a remand is required to obtain the Veteran’s complete service treatment records. The matters are REMANDED for the following action: 1. Take all appropriate actions to attempt to obtain potentially missing service treatment records. 2. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After completing the above development, schedule the Veteran for a VA examination to assess his claim of entitlement to service connection for PFB. A complete copy of the claims file must be made available to the examiner. The examiner must consider the Veteran’s lay reports of observable symptomatology. The examiner must also take a history regarding the symptoms from the Veteran. After a thorough review of the medical and lay evidence of record, the examiner should address the following: (a.) List any and all skin conditions with which the Veteran is presently diagnosed, including whether he has a present diagnosis of PFB. The examiner should also comment on whether medical records or service treatment records document any diagnosis of PFB. (b.) If the Veteran has a diagnosis of a skin condition, is it at least as likely as not (i.e. a probability of 50 percent or more) that the skin condition had its onset during active service or within one year of separation from service, or, otherwise resulted from active military service? The examiner should provide a complete rationale for all opinions provided. 4. After completing all indicated development, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and her representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is returned to the Board. B. Mullins Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Associate Counsel, C. Parnell 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.