Citation Nr: 20054559 Decision Date: 08/18/20 Archive Date: 08/18/20 DOCKET NO. 15-41 913 DATE: August 18, 2020 ORDER As new and material evidence to reopen a claim for service connection for vitiligo has been received, the claim is reopened. REMANDED Entitlement to service connection for vitiligo is remanded. Entitlement to service connection for bilateral ankle disability is remanded. FINDINGS OF FACT 1. A December 2008 rating decision denied service connection for vitiligo of face and neck due to radiation exposure. The Veteran did not appeal that rating decision and new and material evidence was not received within one year of the decision. 2. Evidence received since the December 2008 rating decision relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for vitiligo of face and neck and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The December 2008 rating decision that denied the claim for service connection for vitiligo of face and neck due to radiation exposure is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. 2. Evidence received since the December 2008 rating decision is new and material and the criteria for reopening of the claim for entitlement to service connection for vitiligo of face and neck due to radiation exposure, therefore, been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force as a tactical aircraft maintenance specialist from August 1975 to August 1979. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, RI, that denied service connection for bilateral ankle condition and declined to reopen a claim for service connection for vitiligo. In a December 2019 Board decision, the claim was remanded for further evidentiary development. A supplemental statement of the case (SSOC) was issued in January 2020. The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. As regards characterization of the appeal, the Board notes that, regardless of the RO’s actions regarding the claim for vitiligo, the Board has a legal duty under 38 U.S.C. §§ 5108 and 7104 to address the question of whether new and material evidence had been received to reopen a previously denied claim for service connection. That matter goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Application to reopen Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). By way of background, the Veteran’s initial claim for service connection for vitiligo of face and neck due to radiation exposure was denied in a December 2008 rating decision. The evidence considered at that time included service treatment records, military personnel records, and VA treatment records. The Veteran was notified of the denial in that same month, but he did not appeal this issue, as indicated above. The Veteran did not submit new and material evidence within the one-year appeal period. The Board acknowledges that the additional service personnel records were associated with the claims file subsequent to the December 2008 rating decision. VA regulation provides that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). 38 C.F.R. § 3.156(c). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). In this case, the service personnel records received are not relevant to the claim for service connection for vitiligo, as the records do not address whether there were any in-service skin complaints or whether there is any medical relationship between any such claimed disability and service. Accordingly, reconsideration of the Veteran’s claim under 38 C.F.R. § 3.156(c) is not required based upon the additionally received personnel records. The denial, therefore, became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. The Veteran filed an application to reopen a claim for a vitiligo of face and neck in January 2013, and the RO denied his application to reopen on the basis that no new and material evidence was received since the December 2008 rating decision. The evidence received since the December 2008 rating decision includes an August 2019 Informal Hearing Presentation (IHP), in which the Veteran, through his representative indicated that the Veteran reported loss of pigment in the neck region for about thirty years starting in the mid-1970s during service. As this evidence raises a reasonable possibility of substantiating the claim for entitlement to service connection for vitiligo, reopening of the claim is warranted. REASONS FOR REMAND 1. Entitlement to service connection for vitiligo is remanded. The Veteran asserts that his skin condition is related to his service, to include skin problems noted in service. The Veteran, through his representative, indicated in the August 2019 IHP that his skin conditions began thirty years ago during service and continued thereafter. He also asserted that he was exposed to ionizing radiation, i.e., nuclear weapons, in the period of 1976 to 1979 at Pease Air Force Base (AFB) in New Hampshire. With regard to exposure to ionizing radiation, service connection for disorders claimed as due to exposure to ionizing radiation may be established in three different ways: (a) for radiation-exposed Veterans, on a presumptive basis; (b) for radiogenic disease, on a direct basis after specified development procedures are conducted, or; (c) on a direct basis by showing that the disease was incurred during or aggravated by service. Notably, a July 2018 Memorandum from the Department of the Air Force, which queried the occupational radiation exposure monitoring records in the USAF Master Radiation Exposure Registry noted that the periodic radiation exposure evaluations on individuals and routine operations involving nuclear weapons were conducted, which revealed Air Force exposures are low and typically well below 100 mrem in a year with the exception of small groups of personnel that performed nuclear munitions maintenance operations on a routine basis. It further concluded that prolonged close proximity to nuclear weapons was not required or routine for aircraft maintenance personnel, and thus routine radiation monitoring would not normally have been accomplished, and personnel records are unlikely to contain a DD-Form 1141. The Board notes that presumptive service connection and the application of the provisions of 38 C.F.R. § 3.311 are inapplicable as the Veteran did engage in radiation-risk activity and vitiligo is not a radiogenic disease; nonetheless, the Board must also consider service connection without reference to the radiation regulations. The regulations governing service connection for radiation exposure do not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039; see also 38 C.F.R. § 3.312. Thus, although, the Veteran was not exposed to prolonged close proximity to nuclear weapons or involved in radiation risk activity, it appears he may have been exposed to ionizing radiation, well below 100 mrem. A May 2018 VA examination report noted a diagnosis of vitiligo. The examiner concluded that the Veteran’s vitiligo was less likely than not (less than 50 percent probability) incurred in or caused by facial skin problems on July 7, 1976, and October 26, 1976, as well as treatment for PFB, pruritis, acne, blisters; emotional distress; and allergies requiring skin test during service. She explained that the National Institute of Health and other medical dermatologic resources indicated vitiligo is a skin disorder of hypopigmentation caused by melanocyte destruction and that the exact cause is unknown; however, the disorder is associated with autoimmune disorders, more commonly Addison’s disease, thyroid dysfunction and pernicious anemia. She indicated vitiligo has no association with and is not related to PFB, pruritis, acne, blisters, emotional distress, or allergies. The Board finds that the opinion is inadequate because it did not address the Veteran’s contentions that he had skin discoloration during and since service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). In addition, the examiner did not address whether his skin condition was caused by low exposure to ionizing radiation. As such, an addendum opinion must be obtained on remand. The Board also notes that in the August 2019 IHP, the Veteran, through his representative indicated that VA treatment records from May 2007 to May 2018 noted the Veteran reported loss of pigment in the neck region for about thirty years starting in the mid-1970s. The Board notes, however, VA treatment records prior to 2008 are not associated with the record. Thus, on remand, the AOJ should attempt to obtain any outstanding VA treatments prior to 2008. 2. Entitlement to service connection for a bilateral ankle disability is remanded. In the December 2019 Remand, the Board requested that that Veteran undergo a VA examination to address the etiology of his bilateral ankle disability, and to specifically address his contention that his symptoms began while duck walking across aircraft carriers during service, as well his report of continuity of symptoms. The December 2019 VA examiner diagnosed the Veteran with bilateral deltoid ligament sprain, status-post left ankle triple arthrodesis. As to the etiology of the diagnosed bilateral ankle disability, the examiner provided a negative nexus opinion and explained that the Veteran’s service treatment records were absent for a complaint of ankle pain or injury, to include the Veteran’s separation examination. She noted that the Veteran did not have any problems until his left ankle surgery in 2013, over thirty years after his discharge. In providing a negative nexus opinion, the December 2019 VA examiner relied solely on the lack of treatment for bilateral ankle disability during service. The Board notes that an opinion based on the absence of treatment records without consideration of the Veteran’s competent and credible reports as to continuity of symptoms is inadequate. See Dalton, supra. The matters are REMANDED for the following action: 1. Obtain any outstanding records of VA evaluation and/or treatment of the Veteran including those dated prior to 2008. Follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran a letter requesting that he provide sufficient information and, if necessary, authorization, to obtain additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran provide appropriate authorization to obtain, all outstanding, pertinent, private (non-VA) medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. Arrange to obtain an addendum opinion for his claimed bilateral ankle conditions by an appropriate physician. The entire, electronic claims file, to include a complete copy of the REMAND, must be made available to the designated individual, and the opinion should include discussion of the Veteran’s documented medical history and assertions. The examiner should render an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s diagnosed bilateral ankle disability had its onset during service, or is/was otherwise medically related to an in-service injury, disease or event, to specifically include the Veteran’s contention that his symptoms began while duck walking across aircraft carrier during service. In addressing this question, please accept as true and comment on the Veteran’s lay statement that he experienced bilateral ankle symptoms during service and that such symptoms have continued since that time, and determine whether a nexus to service is “medically plausible” based on the same. Do not rely on the absence of documented treatment is not available for the disability, as that will render the opinion inadequate. Should the examiner decide that a physical examination of the Veteran is required to address these questions, such should be scheduled. All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. 4. Arrange to obtain an addendum opinion for his claimed skin condition by an appropriate physician. The entire, electronic claims file, to include a complete copy of the REMAND, must be made available to the designated individual, and the opinion should include discussion of the Veteran’s documented medical history and assertions. After review of the record, the physician should clearly identify all skin conditions, to include vitiligo, currently present, or present at any point pertinent to the claim on appeal (even if currently asymptomatic or resolved). Then, for each such diagnosed disability, the physician should render an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset during service, or is/was otherwise medically related to an in-service injury, disease or event, to specifically include the Veteran’s contention that his skin condition is due to service, to include any exposure to ionizing radiation well below 100 mrem. In addressing this question, please address the notations of skin complaints during service and accept as true and comment on the Veteran’s lay statement that he experienced skin discoloration symptoms during service and that such symptoms have continued since that time, and determine whether a nexus to service is “medically plausible” based on the same. Do not rely on the absence of documented treatment is not available for the disability, as that will render the opinion inadequate. Should the examiner decide that a physical examination of the Veteran is required to address these questions, such should be scheduled. All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah Campbell, 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.