Citation Nr: 21027258 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 19-24 540 DATE: May 5, 2021 ORDER New and material evidence having been received, the claim for service connection for right and left foot dyshidrosis, to include as due to herbicide exposure, is reopened and, to that extent only, the appeal is granted. REMANDED Service connection for right foot dyshidrosis, to include as due to herbicide exposure, is remanded. Service connection for left foot dyshidrosis, to include as due to herbicide exposure, is remanded. FINDINGS OF FACT 1. A March 2016 rating decision denied service connection for right and left foot dyshidrosis. The rating decision was not appealed nor was new and material evidence received within the appeal period. 2. The evidence received since the last final rating decision relates to an unestablished fact necessary to substantiate the claims of service connection for right and left foot dyshidrosis and raises a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The March 2016 rating decision that denied service connection for right and left foot dyshidrosis is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received; the claims of service connection for right and left foot dyshidrosis are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1965 to February 1969, to include service in the Republic of Vietnam. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In August 2018, the Veteran submitted a Notice of disagreement with the August 2017 rating decision. In a September 2019 decision, the Board denied the petition to reopen the Veteran's claim for service connection for right and left foot dyshidrosis. Subsequently, the Veteran appealed this issue to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 Order, the Court vacated the Board's September 2019 decision denying the reopening of the Veteran's claim for service connection for right and left foot dyshidrosis and remanded the matter to the Board for action consistent with the Joint Motion for Remand (JMR). The claim is once again before the Board. The Board notes that in the September 2019 decision, the Board also remanded the issue of entitlement to service connection for an acquired psychiatric disorder. Subsequently, in a July 2020 decision, the Board denied service connection for this issue. However, at the time the Veteran appealed the Board denial of his claim to reopen service connection right and left foot dyshidrosis, the service connection claim for an acquired psychiatric claim was still in remand status. Because of this, when the Veteran's appeal finally made its way to the Court, only the denied claim to reopen service connection for right and left foot dyshidrosis was vacated and remanded to the Board. New and Material Evidence New and material evidence has been received to reopen the claim for service connection for right and left foot dyshidrosis. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. "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, 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, 38 C.F.R. § 3.156(a) creates a low threshold, and the phrase "raises a reasonable possibility of substantiating the claim" enables, rather than precludes, reopening. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In this case, service connection for right and left foot dyshidrosis was denied in a March 2016 rating decision. The Veteran did not disagree with this rating decision nor was new and material evidence received within the appeal period. 38 U.S.C. § 7105. Evidence received since that decision includes a March 24, 2016 VA treatment record that assessed the Veteran with "probable onychomycosis bilateral hallux." This evidence is new to the record, relates to previously unestablished facts to support the claims, and raises a reasonable possibility of substantiating the claims. 38 C.F.R. § 3.156(a). Accordingly, the claims are reopened. REASONS FOR REMAND 1. Service connection for right foot dyshidrosis, to include as due to herbicide exposure, is remanded. 2. Service connection for left foot dyshidrosis, to include as due to herbicide exposure, is remanded. As there is considerable overlap in the applicable evidence for the Veteran's claims, the Board will discuss them together. The Board notes that during the period on appeal, the Veteran has never had a VA examination to determine if his foot conditions are related to active service. In his previous appeal, he had a VA examination in February 2016. In that examination report, the Veteran was diagnosed with athlete's foot. The examiner noted that the Veteran was originally diagnosed and treated for this condition in June 1968, during active service. The examiner reported that the Veteran was treated for lesions that resolved with no sequelae. The examiner opined that it was less likely than not that the Veteran's foot conditions were related to service. The rationale was that the Veteran's currently had a different foot diagnosis, although the VA examiner never listed what that was. Additionally, the Board notes that the Veteran's service treatment records (STRs) do not appear to contain a June 1968 record for treatment for athlete's foot. Instead, this notation seems to have come from the Veteran's January 1969 Report of Medical Examination and Report of Medical History for separation. At that time, the Veteran noted that he had "foot trouble" on the questionnaire. Because the Veteran is not a medical expert, his lay description of his foot condition on exit may not have accurately described his foot condition during service. Because of this, a new VA examination is necessary to determine what kind of foot condition the Veteran has, and whether it is related to active service, to include as due to herbicide exposure. The matters are REMANDED for the following actions: 1. Please note that this Veteran's case has been advanced on the docket and, by law, ALL remanded claims must be processed expeditiously. 2. In accordance with the provisions of 38 C.F.R. § 3.159(c)(1), contact the Veteran for additional information about treatment for his condition and make efforts to obtain all VA and private treatment records concerning these claims. 3. Schedule the Veteran for a VA skin examination to determine the nature and cause of any diagnosed bilateral foot disability, to include right and left foot dyshidrosis. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case, to include the March 24, 2016 VA treatment record that noted "probable onychomycosis bilateral hallux." A notation to the effect that this record review took place should be included in the report. After the above has been completed, the examiner should address whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed foot disability is causally related to active service, to include herbicide exposure, or represents the initial manifestation of his current diagnosis. 4. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Abrams, 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.