Citation Nr: 21005790 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 19-05 896A DATE: February 2, 2021 ORDER New and material evidence has been received sufficient to reopen a claim for entitlement to service connection for a skin condition. REMANDED Entitlement to service connection for a skin condition is remanded. Entitlement to service connection for a thyroid condition is remanded. Entitlement to service connection for a throat condition is remanded. Entitlement to a rating in excess of 20 percent for service-connected urethral papilloma prior to August 9, 2017 and 40 percent thereafter (except for the period of a temporary total rating from April 11, 2018 to May 31, 2018) is remanded. Entitlement to a total disability rating based on individual unemployability is remanded. FINDINGS OF FACT 1. The claim for entitlement to service connection for a skin condition was denied in a February 1956 rating decision which was not appealed. 2. Evidence received following the February 1956 rating decision is new and material and is sufficient to reopen the claim for entitlement to service connection for a skin condition. CONCLUSIONS OF LAW 1. The February 1956 rating decision, which denied service connection for a skin disorder, is final. 38 U.S.C. § 7104 (b) (2012); 38 C.F.R. § 20.1103. 2. New and material evidence has been received since the last denial of service connection for a skin disorder and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1953 to December 1954. This matter comes before the Board from a September 2015 rating decision and an April 2018 rating decision. The Veteran indicated he wanted a Board hearing on his March 2019 Form 9. However, in January 2020 correspondence he expressed a desire to cancel his hearing. As such, the Board has adjudicated the claims based on the evidence of record. Whether new and material evidence has been submitted to reopen a claim for service connection for a skin disorder A February 1956 rating decision denied service connection for the Veteran’s claimed skin disability. The RO determined the evidence of record failed to establish a link between the skin condition and his service-connected urethral papilloma. The Veteran was notified of the decision, but did not appeal. There was also no new and material evidence within a year of the decision. Accordingly, the decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103, 20.204. VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, is related 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 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). The Court has held that evidence is presumed credible for the purpose of reopening a claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption is rebuttable when the evidentiary assertion is inherently incredible. See King v. Brown, 5 Vet. App. 19, 21 (1993) (evidentiary assertions are presumed true except when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion). The United States Court of Appeals for the Federal Circuit (Court) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence has not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Bostain v. West, 11 Vet. App. 124, 126-27 (1998). 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, 117 (2010). When making a determination as to whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade, 24 Vet App. 110 (2010). The Veteran filed a new claim for service connection for a skin disorder in March 2015. The evidence received since the February 1956 rating decision includes the Veteran’s December 2015 statement that he has continued to have rashes on his right arm since service. This evidence was not of record at the time of the prior decision, and related to unestablished facts necessary to substantiate the claim. Therefore, the new evidence submitted subsequent to the February 1956 rating decision bears directly and substantially upon the specific matter under consideration, including that the condition has persisted since service, and is not cumulative or redundant, and in connection with evidence previously assembled raises a reasonable possibility of substantiating the claim of entitlement to service connection for a skin condition. REASONS FOR REMAND 1. Entitlement to service connection for a skin rash is remanded. The Veteran indicates he has experienced skin rashes since his separation from service. Service treatment records note a diagnosis of urticaria. The Veteran’s December 2015 notice of disagreement indicates that he still experiences rashes on his right arm; however, the Veteran’s medical records do not note a diagnosis for or treatment of a skin condition. However, the Veteran is competent and credible to report rashes on his skin. As such, there is an indication of the possible existence of a current disability that may have its onset in-service. A remand is necessary to determine whether there is a current skin disability and whether it is etiologically related to the in-service diagnosis of urticaria or the Veteran’s service-connected urethral papilloma. 2. Entitlement to service connection for a thyroid condition is remanded. 3. Entitlement to service connection for a throat condition is remanded. The Veteran contends that he has a thyroid condition and a throat condition due to service. The Veteran has raised multiple theories of entitlement. First, the Veteran contends that while in-service he was exposed to chemical agents and dust as his duties required him to drive around in an open jeep and at the end of the day he would be covered in dust, which he believed contained chemical agents used to control the foliage. Second, that his thyroid and throat conditions are secondary to his service-connected urethral papilloma or service-connected sinus condition. The record notes the Veteran underwent thyroid surgery and that he experiences the sensation of something in his throat. Such indicates the possibility of a current thyroid disability and throat disability that maybe be caused by or aggravated by his service, or service-connected disabilities. A remand is required to determine the nature and etiology of the Veteran’s thyroid and throat condition. 4. Entitlement to a rating in excess of 20 percent for service-connected urethral papilloma prior to August 9, 2017 and 40 percent thereafter is remanded. The Veteran filed for an increased rating on March 18, 2015. A September 2015 rating decision increased the Veteran’s rating to 20 percent effective March 18, 2015 and an April 2018 rating decision increased the Veteran’s rating to 40 percent effective August 9, 2017. The Veteran was most recently afforded a VA examination in August 2017 at which time he reported private treatment for this urethral condition approximately every six months. It was noted at the examination that these records are not in the claims file. An effort should be made to obtain the Veteran’s private treatment records in order to fully evaluate the severity of the Veteran’s condition. Additionally, the record indicates the Veteran underwent a cystourethroscopy in April 2018. As such, the August 2017 VA examination may not be an accurate depiction of the Veteran’s current disability and another VA examination is necessary to evaluate the Veteran’s current severity. 5. Entitlement to a total disability rating based on individual unemployability is remanded. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU is part of a rating issue when unemployability is expressly raised by a veteran or reasonably raised by the record. The record indicates the Veteran is unemployed and the record reasonably raises the contention that the Veteran maybe unable to secure gainful employment due to his service-connected disabilities, to include his urethral papilloma. As such, the Board finds that TDIU is part and parcel to the increased rating claim and is inextricably intertwine to the claim for increased rating for urethral papilloma. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. P. Make two requests for the authorized records from Dr. P’s office, unless it is clear after the first request that a second request would be futile. 2. Send the Veteran the proper notice that advises him about what is needed to substantiate a claim for a TDIU. In addition, ask the Veteran to complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any skin disability. After reviewing the claims file and examining the Veteran, the examiner should provide an opinion as to the following (a.) State whether it is at least likely as not (50 percent or greater probability) that the Veteran’s skin disability had its onset in service or is otherwise etiologically related to active service. The diagnosis of urticaria in service should be addressed as well as the lay statements the Veteran has experienced skin rashes since service. (b.) State whether it is at least as likely as not that the Veteran’s skin disorder is either caused or aggravated by the service-connected urethral papilloma disability. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any thyroid and throat disability. After reviewing the claims file and examining the Veteran, the examiner should address the following: (a.) State whether it is at least likely as not that the Veteran’s thyroid and/or throat disability had its onset in service or is otherwise etiologically related to active service. Including exposure to road dust and the Veteran’s belief that he was exposed to chemicals in the dust. (b.) State whether it is at least likely as not that the Veteran’s thyroid and/or throat disability is either caused or aggravated by the service-connected urethral papilloma or sinus disability. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected urethral papilloma. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 6. Then, readjudicate the claims on appeal. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rekowski 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.