Citation Nr: 21062012 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 18-39 992 DATE: October 6, 2021 ORDER As new and material evidence has been submitted, the previously denied claim of entitlement to service connection for sarcoidosis is reopened, and to that extent only, the appeal is granted. As new and material evidence has been submitted, the previously denied claim of entitlement to service connection for skin rashes / lesions (most recently claimed as skin condition), is reopened, and to that extent only, the appeal is granted. REMANDED Service connection for sarcoidosis is remanded. Service connection for skin rashes / lesions (most recently claimed as skin condition), to include as secondary to sarcoidosis, is remanded. Service connection for asthma, to include as secondary to sarcoidosis, is remanded. Service connection for degenerative disc disease lower back (DDD) is remanded. FINDINGS OF FACT 1. In an unappealed September 2011 rating decision, the RO denied service connection for sarcoidosis finding that the evidence did not show an in-service event, disease, or injury that caused the claimed condition. 2. Additional evidence received since the most recent September 2011 final rating decision includes medical evidence and lay evidence at least arguably that is new, not cumulative or redundant of the evidence of record at the time of that decision, and at least arguably relates to nexus to service. 3. In a July 1996 rating decision, the RO denied service connection for skin rashes / lesions finding that the condition was not incurred in service; thereafter, in unappealed April 2006 and December 2014 rating decisions, the RO continued the denial of service connection for skin rashes / lesions finding the evidence submitted was not new and material. 4. Additional evidence received since the most recent December 2014 final rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim of service connection for skin rashes / lesions, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The RO's September 2011 rating decision regarding the claim of service connection for sarcoidosis is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 220.1103. 2. New and material evidence has been submitted to reopen the claim for service connection for sarcoidosis. 38 U.S.C. §§ 1110, 7105; 38 C.F.R. §§ 3.303, 3.156, 20.1103. 3. The RO's December 2014 rating decision regarding the claim of service connection for skin rashes / lesions is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 220.1103. 4. New and material evidence has been submitted to reopen the claim for service connection for skin rashes / lesions. 38 U.S.C. §§ 1110, 7105; 38 C.F.R. §§ 3.303, 3.156, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1982 to March 1992 with additional Reserves service. These matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO) in Decatur, Georgia. Following the RO's denial of the claims addressed herein, the Veteran timely appealed to the Board requesting a hearing. Said hearing occurred in January 2021, a transcript of which has been associated with the claims file and reviewed. Specifically regarding service connection for sarcoidosis and skin rashes / lesions, the Board notes the RO's decision not to reopen these claims is not binding on the Board and, consequently, the Board is obligated to consider the issue of new and material evidence and make an independent determination. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Thus, the issues have been appropriately recharacterized above. New and Material Evidence Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104, 7105. The 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, the Secretary shall reopen the claim and review the former disposition of the 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. 38 C.F.R. § 3.156(a). The Court of Appeals for Veterans Claims has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and has viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110, 121 (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." Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. See Shade, 24 Vet. App. at 118. 1. As new and material evidence has been submitted, the previously denied claim of entitlement to service connection for sarcoidosis is reopened, and to that extent only, the appeal is granted. In this case, the RO denied service connection for sarcoidosis in a September 2011 rating decision. At the time, the RO found that the evidence did not show an event, disease, or injury in service that may have caused the claimed sarcoidosis. The RO notified the Veteran of its decision and the Veteran's appellate rights. The Veteran did not initiate an appeal of the RO's decision within one year nor submit additional evidence within one year of the RO's decision. As a result, the RO's September 2011 rating decision became final. Thus, the Veteran's service connection claim for sarcoidosis may only be considered on the merits if new and material evidence has been received since the time of the prior adjudication. The Veteran filed a petition to reopen this claim in December 2015 contending that the additional evidence of record since the September 2011 rating decision is new and material. As will be discussed in more detail below, the Board agrees and finds reopening of each claim is warranted. The evidence of record at the time of the September 2011 rating decision included service treatment records, a letter noting complete service treatment reports were unavailable, an article discussing environmental hazards, and post-separation treatment records from 2004 through 2010. Evidence added to the claims file after the September 2011 rating decision included additional post-separation VA treatment records, Veteran testimony, and multiple buddy statements. The treatment records reference sarcoidosis with reports of skin rashes / lesions as "related to sarcoidosis." Additionally, the Veteran testified, and buddy statements reflect, that she has experienced lung related problems since separating from service. These treatment records relate to previously unestablished elements of service connection including nexus to service and present alternate theories of entitlement regarding chronicity. Thus, for the purposes of reopening, the additional evidence is both "new" and "material" as it is not duplicative, not cumulative, and raises a reasonable possibility of substantiating the Veteran's service connection claim for sarcoidosis. Based on the above, the Veteran's claim of service connection for sarcoidosis is reopened. 2. As new and material evidence has been submitted, the previously denied claim of entitlement to service connection for skin rashes / lesions (most recently claimed as skin condition), is reopened, and to that extent only, the appeal is granted. Here, the RO originally denied the Veteran's skin rash claim in a July 1996 rating decision because at that time there was no evidence that the disability was incurred in service or was due to service. The claim again reached the RO in December 2014 where the matter was again denied finding the additional evidence submitted was not new and material because it did not relate to an unestablished fact necessary to substantiate the claim (nexus) and did not raise a reasonable possibility of substantiating the claim. The RO notified the Veteran of its decision and the Veteran's appellate rights. The Veteran did not initiate an appeal of the RO's decision within one year nor submit additional evidence within one year of the RO's decision. As a result, the RO's December 2014 rating decision became final. Thus, the Veteran's service connection claim for skin rashes / lesions may only be considered on the merits if new and material evidence has been received since the time of the prior adjudication. The Veteran filed a petition to reopen the claim in December 2015 contending that the additional evidence of record since the December 2014 rating decision is new and material. As will be discussed in more detail below, the Board agrees and finds reopening of the claim is warranted. At the time of the December 2014, final rating decision, the evidence included the Veteran's lay statements, post-separation treatment records from 2009 through 2011 and 2012 through 2014, and service treatment records from 1982 to 1992. Evidence added to the claims file after the December 2014 rating decision included additional post-separation VA treatment records, Veteran testimony, and multiple buddy statements. The additional post-separation treatment records contain reports of onset of symptoms during service and since separation and notations that the rashes / lesions are related to sarcoidosis. Buddy statements and the Veteran's testimony reference symptom onset during service with continued rashes / lesions since separation. These treatment records relate to previously unestablished elements of service connection including nexus to service. Thus, for the purposes of reopening, the additional evidence is both "new" and "material" as it is not duplicative, not cumulative, and raises a reasonable possibility of substantiating the Veteran's service connection claim for skin rashes / lesions. Based on the above, the Veteran's claim of service connection for skin rashes / lesions is reopened. REASONS FOR REMAND 1. Service connection for sarcoidosis is remanded. The Veteran contends her sarcoidosis was caused by or incurred during service and has continued since separation, to include environmental hazards she was exposed to during her deployment in Saudi Arabia. The Board finds the evidence of record is insufficient to resolve her claim. The Veteran was afforded a VA examination in February 2011 and May 2016 that addressed her Persian Gulf War service and whether the Veteran's condition was an undiagnosed illness or a chronic multi-symptom illness of unexplained origin, but neither examiner addressed whether the Veteran's condition was directly incurred in or related to service in light of her description of in-service symptoms and symptoms since service. See Miller v. Wilkie, 32 Vet. App. 249 (2020). That is, although the examiners touched on whether presumptive service-connection was warranted in light of her Gulf War service, neither examiner reconciled direct service connection whether or not the presumption is applicable. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Veteran's service treatment records, moreover, note an in-service skin rash outbreak while she was in the Persian Gulf in March 1991. She has consistently indicated rashes in-service in 1991 and 1992 and on and off breakouts ever since the in-service rashes. Treatment records in 2014 note that the Veteran's rash / lesions "are related to sarcoidosis." To date, however, an examiner has not considered or addressed whether the Veteran's in-service skin rashes / lesions were manifestations of or symptoms of sarcoidosis at that time. Of note, UpToDate references skin lesions as a symptom of sarcoidosis. See UpToDate, "Extrapulmonary manifestations of sarcoidosis," https://www.uptodate.com/contents/extrapulmonary-manifestations-of-sarcoidosis?search=sarcoidosis&source (Last accessed September 10, 2021). Thus, service connection for sarcoidosis is remanded to afford the Veteran another VA examination to consider direct service connection in light of the Veteran's contentions describing continuous symptoms since service, the in-service reference to in-service rash outbreaks, and the post-service medical records indicating that skin rashes are related to sarcoidosis. 2. Service connection for skin rashes / lesions (most recently claimed as skin condition), to include as secondary to sarcoidosis, is remanded. As noted above, the Veteran's service treatment records confirm she had an in-service outbreak of a rash while in the Persian Gulf. She further testified that the rashes were periodic throughout 1991 and 1992 and continued periodically after service. After service, a September 1995 VA examination notes a "very pruritic" rash at that time. VA outpatient treatment records confirm ongoing complaints and treatment of rashes in various body locations throughout time with various diagnosis, to include dermatitis. A February 2011 VA examiner opined that the Veteran's dermatitis was of "unknown" etiology. Some treatment records from 2014, in contrast, indicate the rashes and lesions could be a manifestation of sarcoidosis. The Board finds the medical evidence is insufficient to determine the Veteran's current skin diagnosis/diagnoses during the pendency of this appeal and the likely etiology of any and all diagnoses found, to include whether the condition was directly incurred in service in light of the in-service rash treatment, or a manifestation of sarcoidosis, or related to her toxin exposure in the Gulf War. A remand for a VA examination and medical opinion is warranted. 3. Service connection for asthma, to include as secondary to sarcoidosis, is remanded. The Board finds remand is required regarding this claim as it is inextricably intertwined with the pending service connection claim for sarcoidosis. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Sarcoidosis encompasses pulmonary symptoms, such as coughing and chest pain, which have also been noted symptoms of asthma within the Veteran's treatment records. Thus, it is unclear whether the two conditions are connected or whether the sarcoidosis causes or aggravates the Veteran's asthma. As such, the claims are intertwined and should be adjudicated together. 4. Service connection for lower back DDD is remanded. The Veteran contends her lower back DDD was caused by or incurred during service with symptoms since separation. The Board finds the evidence of record is insufficient to resolve her claim. The Veteran was afforded a VA examination in May 2016 during which the examiner opined the Veteran's DDD was less likely as not related to service based, in-part, on the reasoning that the Veteran's service treatment records were silent for complaints related to the back except for a report of medical history noting recurrent back pain. The examiner stated that the most significant contributing factor for DDD is age and weight. The Veteran has previously stated, however, that her back pain began during service and has continued since separation. She described two different contended incidents during service in relation to her back pain. She stated that she jumped down from large trucks during service for drills and that she had to run in full gear. The May 2016 VA examiner failed to address or consider the Veteran's lay statements of onset and continued symptoms. See Miller v. Wilkie, 32 Vet. App. 249 (2020). Upon review, the Board additionally notes the Veteran appears to have been in a motor vehicle accident in 2001 after which she reported experiencing back pain. Albeit this incident appears to have been outside a period of service, but nonetheless the incident was similarly unaddressed or reconciled by the VA examiner. Thus, remand is necessary to determine whether this is an intercurrent cause of the Veteran's current DDD. See 38 C.F.R. §§ 3.307, 3.309. As such, this claim is remanded to obtain another VA examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for a new VA examination with a rheumatologist or pulmonologist to determine the nature and etiology of the Veteran's sarcoidosis in light of her exposure to environmental toxins during the Gulf War, her in-service complaints and treatment for skin rashes, and her lay statements describing in-service respiratory symptoms and chronic symptoms since service. The entire claims file and this remand should be made available to the examiner for review. The examiner should render an opinion, including rationale, addressing the following: - Addressing the opinions rendered in the prior February 2011 and May 2016 VA examinations and any other evidence deemed relevant, resolve whether the Veteran's sarcoidosis is either an undiagnosed illness, or alternatively a diagnosed illness but the result of a medically unexplained chronic multi-symptom illness (MUCMI). The term "MUCMI" refers to a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic MUCMIs of partially understood etiology and pathophysiology will not be considered "medically unexplained." - If the Veteran's sarcoidosis is neither an undiagnosed illness nor a MUCMI, the examiner is further asked to address whether it is at least as likely as not that the Veteran's sarcoidosis (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? In so opining, the examiner is directed to address and consider the Veteran's statements describing burn pit exposure, her service treatment records referencing rashes / lesions, and her lay statements of respiratory symptoms during service and since separation. The examiner is also directed to consider treatment records in 2014 noting that the Veteran's rash / lesions "are related to sarcoidosis." - If the examiner finds the Veteran's sarcoidosis is at least as likely as not related to service, the examiner should render an opinion addressing whether it is at least as likely as not the Veteran's current asthma is caused or aggravated by sarcoidosis. The VA examiner is cautioned that the term "aggravated," as used in 38 C.F.R. § 3.310(b), does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. Schedule the Veteran for a VA examination for her claimed skin rash disability. The examiner must review the claims file. The examiner is asked to identify any and all skin conditions found during the pendency of this appeal (whether the skin condition is active at the time of the examination) and opine as follows: - Is any and all found skin conditions either an undiagnosed illness, or alternatively a diagnosed illness but the result of a medically unexplained chronic multi-symptom illness (MUCMI). The term "MUCMI" refers to a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic MUCMIs of partially understood etiology and pathophysiology will not be considered "medically unexplained." - Is any and all found skin conditions at least as likely as not related to service, including the in-service rash outbreak in March 1991, her toxin exposure around burn pits in Saudi Arabia, and the Veteran's contention of ongoing periodic outbreaks since that time? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of her in-service symptoms as well as her post-service symptoms. - Is any and all found skin conditions at least as likely as not proximately due to sarcoidosis? - Is any and all found skin conditions at least as likely as not aggravated, i.e., worsened beyond its natural progression, by sarcoidosis? The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Schedule the Veteran for a new VA examination with an appropriate examiner to determine the nature and etiology and the Veteran's lower back condition. The entire claims file and this remand should be made available for review. The examiner should render an opinion, including rationale, addressing the following: - Is it at least as likely as not that the Veteran's lower back degenerative disc disease (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? In so opining, the examiner is directed to address and consider the Veteran's lay statements of experiencing symptoms of back pain during service, the description of her duties of jumping from trucks for drills and running with full gear, and the Veteran's documented recurrent back pain in 1992. The examiner is also directed to address and consider whether the Veteran's noted post-service 2001 motor vehicle accident with contemporaneous complaints of back pain was an intercurrent cause of the Veteran's current lower back degenerative disc disease. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. After the above development, and any other development deemed necessary, readjudicate the claims. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, 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.