Citation Nr: 21068995 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 19-07 018 DATE: November 17, 2021 ORDER New and material evidence having been received, the appeal to reopen the claim for service connection for chronic lumbar strain with minimal degenerative changes (claimed as low back condition) is granted. REMANDED Entitlement to service connection for a skin condition, to include scleroderma, punctate keratoma, and tinea pedis, as due to contaminated water exposure at Camp Lejeune is remanded. Entitlement to service connection for neurobehavioral effects, to include an acquired psychiatric disorder, as due to contaminated water exposure at Camp Lejeune is remanded. Entitlement to service connection for chronic lumbar strain with minimal degenerative changes (claimed as low back condition) is remanded. FINDINGS OF FACT 1. The July 2009 rating decision denied service connection for chronic lumbar strain with minimal degenerative changes. 2. The August 2014 rating decision declined to reopen the Veteran's claims for service connection for chronic lumbar strain with minimal degenerative changes on the basis of no nexus between a low back disability and active service. 3. New and material evidence has been submitted to reopen the claims of entitlement to service connection for chronic lumbar strain with minimal degenerative changes. CONCLUSION OF LAW The criteria to reopen the issue of entitlement to service connection for chronic lumbar strain with minimal degenerative changes have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(b). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1973 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). In November 2020, the Veteran testified in a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. Regarding the characterization of the claims, although the Veteran initially submitted a claim of service connection for scleroderma and neurobehavioral effects alone, his medical records and hearing testimony indicates diagnoses for other skin and psychiatric disorders. The Board, therefore, has re-characterized the claims to include entitlement to service connection for any skin disorder and acquired psychiatric disorder in order to contemplate the Veteran's symptoms, however diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a claim is determined by the claimant's description of the claim, the symptoms described, and the information submitted or developed in support of the claim). Regarding the Veteran's service connection claim for a low back disability, the Veteran filed a timely Form 9 in July 2018, and the Board will assume jurisdiction of the claim to which it pertains. 1. New material evidence having been received, the appeal to reopen the claim for service connection for chronic lumbar strain with minimal degenerative changes is granted The Veteran seeks to reopen his service connection claim for chronic lumbar strain with minimal degenerative changes. Unappealed rating decisions are final with the exception that a claim may be reopened by the submission of new and material evidence. When an appellant seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new and material." Second, if VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of the appellant's claim considering all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). "New" evidence means evidence not previously submitted to VA decision makers. "Material" evidence means evidence that relates to an unestablished fact necessary to substantiate the claim. Cumulative or redundant evidence is not new and material. 38 C.F.R. § 3.156(a). To reopen, the new and material evidence must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). This is a low threshold that is meant to enable, rather than preclude, reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). The focus is not on whether the evidence remedies the principal reason for the previous denial, but whether the evidence, taken together, would at least trigger the duty to assist by providing a medical opinion. Id. at 117. The Veteran was initially denied service connection for chronic lumbar strain with minimal degenerative changes in July 2009 on the basis that the Veteran's claimed disability neither occurred in nor was caused by service. The evidence at that time included the Veteran's service treatment records (STRs), which noted in-service back pain, and a VA examination, which provided a negative nexus opinion. The Veteran did not appeal or submit new and material evidence within one year of that decision; thus, the July 2009 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran requested to reopen his claim in October 2013; that request was denied in an August 2014 rating decision. The evidence at that time included medical treatment records and additional service treatment records. The AOJ denied the Veteran's claim to reopen, reasoning that sufficient new and material evidence had not been submitted to establish a connection to service. In a February 2016, following the submission of evidence, the AOJ continued the previous denial to reopen the claim. The evidence at that time included medical treatment records and additional service treatment records. Following the submission of additional evidence, the AOJ continued the previous denial to reopen the claim in a September 2017 rating decision. In September 2017, the Veteran submitted a timely notice of disagreement. Since the final August 2014 rating decision, evidence added to the claims file include: updated medical treatment records, which note chronic back pain, noting onset as in-service, and decreased range of motion; and hearing testimony, which describes the onset of the Veteran's symptoms, the subsequent treatment of his symptoms, additional theories of entitlement, and notes that the Veteran received treatment in 1977. Since this evidence was not previously considered and it raises a possibility of substantiating the Veteran's claim, it constitutes new and material evidence sufficient to reopen the claim. REASONS FOR REMAND 1. Entitlement to service connection for a skin condition, to include scleroderma, punctate keratoma, and tinea pedis, as due to contaminated water exposure at Camp Lejeune is remanded. 2. Entitlement to service connection for neurobehavioral effects, to include an acquired psychiatric disorder, as due to contaminated water exposure at Camp Lejeune is remanded. 3. Entitlement to service connection for chronic lumbar strain with minimal degenerative changes (claimed as low back condition) is remanded. Evidence indicates that there may be outstanding relevant VA hospital records. During a November 2020 hearing, the Veteran reported that he was treated at a VA Hospital in Allen Park in 1977, 1979, 1980, and 1991 for the disabilities on appeal. Any VA treatment records are within VA's constructive possession and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. Also, evidence indicates that there may be additional outstanding relevant VA treatment records. In a December 2020 Medical Treatment Record, the Veteran's representative reported that the Veteran was treated at a VA Medical Center beginning in 1975 and has continued to receive VA treatment for the disabilities on appeal. However, records prior to 1999 are not of record. Any VA treatment records are within VA's constructive possession and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. The November 2020 Board hearing indicates that there may be outstanding and relevant United States Postal Service records. A remand is required to allow VA to request these records. Further, during the November 2020 board hearing, the Veteran raised the issue of whether the Veteran's skin conditions are a continuation of his diagnosed tinea pedis and tinea versicolor, which he received treatment for in service. Therefore, the Board cannot make a fully informed decision on the issue because no VA examiner has provided an opinion regarding the above theory of entitlement. Additionally, during the November 2020 Board hearing, the Veteran stated that he has experienced bipolar disorder, posttraumatic stress disorder (PTSD), depression, mood swings, reckless behavior, anger management issues, impulsivity issues, and polysubstance use, due to his service and/or contaminated water exposure at Camp Lejeune. The Board cannot make a fully informed decision on the issue of entitlement to service connection for neurobehavioral effects, to include an acquired psychiatric disorder, because no VA examiner has opined whether it is related to service, including as due to contaminated water exposure at Camp Lejeune. The matters are REMANDED for the following action: 1. Associate with the claims folder updated treatment records. 2. Obtain the Veteran's VA treatment records for the period from 1975 to 1999. 3. Obtain the Veteran's Allen Park VA Hospital records from 1977, 1979, 1980, and 1991. 4. Obtain the Veteran's federal records, e.g., retirement documents, disability determinations, and/or workers' compensation documents, from the United States Postal Service. Document all requests for information as well as all responses in the claims file. 5. The Veteran should be afforded an appropriate VA examination in order to determine the current nature and etiology of his skin conditions, to include scleroderma, punctate keratoma, and tinea pedis. The claims file must be made available to and be reviewed by the examiner. The examiner should specifically indicate whether the Veteran has a skin condition, to include scleroderma, punctate keratoma, and tinea pedis, and provide an opinion as to whether each diagnosed disability at least as likely as not (50 percent or greater probability) began during service or is otherwise etiologically related to the Veteran's military service, to include as due to contaminated water exposure at Camp Lejeune. The examiner should specifically discuss the nature and course of tinea pedis and tinea versicolor, and discuss why or why not any current tinea disorder is not the same disorder noted in service. The examiner should consider the following: the Veteran's service treatment records reflecting treatment for tinea pedis and tinea versicolor; the June 2009 Medical Treatment Record - Government Facility, which notes treatment for tinea versicolor, fungal infection, and scleroderma; the August 2014 Medical Treatment Record - Government Facility, which notes a diagnosis of punctate keratoderma; the May 2015 Medical Treatment Record - Government Facility, which notes exposure to benzene and vinyl chloride may cause scleroderma like skin changes; the June 2018 Medical Treatment Record - Government Facility, wherein the Veteran's private dermatologist opines that the Veteran's skin conditions are related to service; and the November 2020 Boarding hearing testimony. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 6. The Veteran should be afforded an appropriate VA examination in order to determine the current nature and etiology of his acquired psychiatric disorder. The claims file must be made available to and be reviewed by the examiner. The examiner should indicate all psychiatric disorders manifested since service, to include the diagnoses of bipolar disorder, PTSD, depression, mood swings, reckless behavior, anger management issues, impulsivity issues, and polysubstance use noted in clinical records. The examiner is requested to discuss whether the previously diagnosed conditions were proper and currently asymptomatic, or a misdiagnosis. The examiner should specifically indicate whether the Veteran has an acquired psychiatric disorder, to include bipolar disorder, PTSD, depression, mood swings, reckless behavior, anger management issues, impulsivity issues, and polysubstance use and provide an opinion as to whether each diagnosed disability is at least as likely as not (50 percent or greater probability) occurred in or is otherwise etiologically related to the Veteran's military service, to include as due to contaminated water exposure at Camp Lejeune. If PTSD is diagnosed, the examiner should identify the stressors supporting the diagnosis and discuss whether there is in-service evidence of behavioral changes, or markers, that may constitute credible evidence that the claimed stressor occurred. The examiner should consider the following: the Veteran's VA treatment records noting anger management group sessions and a history of polysubstance abuse, PTSD, depressive disorder, and personality disorder; a May 1999 Psychiatry Progress note, which reports a diagnosis of cannabis and alcohol dependence or abuse, and a personality disorder; the Veteran's military personnel records; the December 2014 VA 21-0781, Statement in Support of Claim for PTSD wherein the Veteran described being assaulted by a drill instructor; the January 2015 VA 21-0781, Statement in Support of Claim for PTSD wherein the Veteran described witnessing a fellow recruit being punished; the January 2015 VA 21-0781, Statement in Support of Claim for PTSD wherein the Veteran described witnessing a fellow recruit's appendix burst, later finding out that the recruit had passed away; the January 2015 VA 21-0781, Statement in Support of Claim for PTSD wherein the Veteran described being forced to fight a superior; the January 2015 VA 21-0960P-3 Review PTSD DBQ, wherein the Veteran is diagnosed with PTSD; the July 2015 Third Party Correspondence, wherein the Veteran's private doctor opined that the Veteran's psychological symptoms are related to the Veteran's service; the November 2020 Boarding hearing testimony; and the January 2021 Medical Treatment Record - Non-Government Facility containing an opinion from Dr. E, which states that the combination of abusive conditions as well as the effects of the neurotoxins' that the Veteran was exposed to, is as likely as not, a source of his neurobehavioral symptoms. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. (continued on the next page) 7. Thereafter, readjudicate the issues on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his Attorney should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his Attorney should be afforded the applicable time period to respond. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Patrick C. Brady, 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.