Citation Nr: 22008042 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 19-21 154 DATE: February 11, 2022 ORDER New and material evidence having been received, the application to reopen the claim for entitlement to service connection for an acquired psychiatric disorder is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to an initial compensable rating for bilateral tinea pedis is remanded. FINDINGS OF FACT 1. An April 2017 rating decision denied entitlement to service connection for an acquired psychiatric disorder. The Veteran did not appeal the decision, and new and material evidence was not actually or constructively received within one year of notice of its issuance; thus, the decision became final. 2. Evidence received more than one year since the final April 2017 rating decision is neither cumulative nor redundant of evidence already of record and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The April 2017 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria to reopen the claim of entitlement to service connection for a psychiatric disorder are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1969 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Board denied, amongst other issues, an initial compensable rating for bilateral tinea pedis and the reopening of the claim for entitlement to service connection for a psychiatric disorder. The Veteran appealed the Board's denial of those two issues to the United States Court of Appeals for Veterans Claims (Court). In November 2020, the Court granted a Joint Motion for Partial Remand (JMPR) submitted by the Veteran and the Secretary of Veterans Affairs (Parties), vacated the February 2020 Board decision insofar as it denied an initial compensable rating for bilateral tinea pedis and the reopening of the claim for entitlement to service connection for a psychiatric disorder, and remanded those matters to the Board for compliance with the JMPR instructions. The Parties to the JMPR agreed that the Board failed to provide an adequate statement of reasons or bases for its decision when it failed to, pertaining to the skin issue, consider the Veteran's entitlement to a higher rating for tinea pedis under the previous construction of 38 C.F. R. § 4.118. Additionally, the JMPR indicated that the Board had failed to provide an adequate statement of reasons or bases for the reopening of the psychiatric disorder. In this regard, the Board had not properly considered relevant evidence of record, specifically, a statement from the Veteran, in which he reports that he was the victim of racial violence while in service. See Justus v. Principi, 3 Vet. App. 510 (1992) (that in considering whether evidence is both new and material to the claim, the credibility and probative weight of that evidence "is to be presumed"). See JMPR at 4-5. New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder. To reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. See 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to VA. 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 and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the "credibility" of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. See 38 U.S.C. § 5107(b). By way of history, the Veteran initially filed a claim for service connection for a psychiatric disorder in January 1974, which appealed up to the Board wherein the Board ultimately denied the claim in a February 1978 decision. The Veteran did not appeal the 1978 Board decision; as such, it became final. See 38 C.F.R. § 20.1100 (a). The Veteran filed a claim to reopen service connection for a psychiatric disorder in February 2011 and a rating decision was issued in December 2012 denying the claim. In response, the Veteran timely submitted new and material evidence keeping the claim on appeal open and a rating decision was issued in April 2017 which again denied the claim for lack of nexus to service. The Veteran did not appeal this decision, and new and material evidence was not actually or constructively received within one year of its issuance. Accordingly, the April 2017 rating decision became final, and new and material evidence is required to reopen the claim. See 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(b), 20.1103. Thereafter, in July 2018, the Veteran requested to reopen the claim and submitted private treatment records in support of this claim. The Veteran's claim was subsequently denied in an October 2018 rating decision and again via a June 2019 statement of the case in response to a November 2018 notice of disagreement. In October 2019, Veteran translated lay statements became of record wherein he asserts during active service he was hospitalized and states he "was unaware of the racism and [he] was beat up by [Caucasian] soldiers." The Veteran has offered a new theory of entitlement; namely, that his psychiatric disorder is due to the racism and physical assault resulting in hospitalization. While a new theory of entitlement, by itself, cannot be the basis to reopen a claim, if the evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). Here, in support of this theory of entitlement, the Veteran submitted his translated lay statements of record October 2019 detailing the incident and a June 2018 private medical opinion (generally) relating his psychiatric disorder to his military service. The additional evidence received relates to an unestablished fact necessary to substantiate the claim. Therefore, this evidence is new and material, and the claim may be reopened. See 38 C.F.R. § 3.156; Shade, 24 Vet. App. 110 (2010). REASONS FOR REMAND Acquired psychiatric disorder As stated above, the Veteran's claim for a psychiatric condition has been reopened, and the Veteran's claim is based in part on an active duty in-service incident involving hospitalization, which is not noted in the record. He also asserts he was given medication during service for his depression, anxiety, and sleep, but notes they are not in the records. See October 2019 Translated lay statement. Based on the aforementioned, the Board finds that the duty to assist is triggered and on remand, any outstanding service treatment records should be secured. Any outstanding private or VA treatment records should also be secured. The Board also finds that a new VA examination is warranted to assess the Veteran's diagnoses during the pendency of the appeal; have the Veteran provide details of any in-service stressor events, specifically, the incident involving racism where he was beaten and hospitalized; and for an examiner to address the etiology of the Veteran's disorder. Bilateral tinea pedis As stated above, the Parties to the JMPR agreed that the Board failed to provide an adequate statement of reasons or bases for its decision when it failed to consider the Veteran's entitlement to a higher rating for tinea pedis under the previous rating criteria in 38 C.F. R. § 4.118. The Board concedes that the Veteran's use of his topical cream, Lotrisone (composed of two drugs known as "Clotrimazole" and "Betamethasone"), is a corticosteroid. Accordingly, as the Veteran filed his claim in July 2018, before the current August 2018 rating criteria took effect, the Board must review the claim under the current and previous rating criteria and determine which criteria is more favorable to the Veteran. The representative's argument outlined in his March 2021 Appellate Brief maintains that the regulation in effect at the time of the July 2018 claim is more favorable, and thus should be reviewed in accordance with pre-August 2018 rating criteria. The September 2018 VA examination revealed the Veteran has bilateral tinea pedis and uses topical medication with a total duration of constant or near-constant in the past 12 months, which occupies less than 5 percent of this total body area. As previously noted, the Veteran uses Lotrisone as his topical cream. The VA examiner did not discuss whether the Veteran's use of the topical medication is "like" a corticosteroid or other immunosuppressive drug in that it affects the body as a whole and, therefore, constitutes systemic therapy. As this is a medical question outside of the Board's fact-finding proficiency, the Board finds remand for a VA addendum medical opinion must be obtained to resolve this issue. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is prohibited from exercising its own independent judgment to resolve medical questions). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Obtain any outstanding service treatment records, to include any hospitalizations incurred during service or any medications given for any psychiatric conditions or sleep impairments. 3. With any necessary assistance from the Veteran, secure outstanding relevant private treatment records, if any. 4. After completing #1, #2, and #3, schedule the Veteran for an examination with an examiner addressing the nature and etiology of his acquired psychiatric disorder, to include major depressive disorder and schizophrenia. The claims file should be made available to and should be reviewed by the examiner. The examiner is requested to respond to the following: (a.) Please diagnose all acquired psychiatric disorders present since July 2018, even if resolved, to include major depressive disorder and schizophrenia. (b.) For each disorder diagnosed in subpart (a), opine as to whether it is at least as likely as not (50 percent or greater probability) that such disorder had its onset during or is otherwise etiologically related to the Veteran's service, to include as a result of stressful events in service. The examiner should discuss the lay statements that the Veteran has submitted in support of his claim, to include his translated October 2019 statements relating to a race-based, in-service incident where he was beaten by Caucasian services members and was hospitalized due to the same for 2 weeks, after which, he became depressed; that he was transferred to another location and fell into more of a depression along with anxiety and anger; that he got into more altercations and fights the Caucasian service members; that he was given medication for depression, anxiety, and sleep impairment; that he lost weight and had no appetite; that he went AWOL because of all the bad things that happened to him; that he has more than 40 years receiving psychiatric treatment; that he indicates that there was a separate incident where he was taunted, insulted, and beaten up by Caucasian soldiers and he was punished, but not them, and he feared for his life; that he was unaware of the racism in the United States; that he also asserts that later on, Caucasian and African-American service members beat him up. Please also discuss the June 2018 private medical examiner's opinion that the Veteran's psychiatric disorder(s) is related to service. The Board draws the attention to the October 2016 letter from his friend and fellow service member that there were multiple times when he (and other fellow service member) had to take the Veteran to the hospital, and the hospital gave him antipsychotic medication due to his mental condition. In addressing this question, the examiner is advised that the Board has found the Veteran competent to report getting beat up during service due to him being Puerto Rican and fearing for his life during at least one of the instances of the same, which the Board finds him credible in this regard. A complete rationale must be provided for all opinions expressed. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why this is the case (e.g., lack of evidence relating to the specifics of this case, insufficient state of general medical knowledge, examiner's own limitations in expertise, etc.). 5. Obtain an addendum medical opinion regarding the nature of the Veteran's bilateral tinea pedis. Following a complete review of the electronic claims file, including this remand, the examiner must address the following inquiry: Whether the Veteran's use of topical medications, including Lotrisone, is "like" a corticosteroid or other immunosuppressive drug to constitute systemic therapy in that it affects the body as a whole. In answering this question please address the Veteran's counsel's statement that Lotrisone affects the body as a whole in that, as noted in the patient information summary published by the patient-holder, prescription drug Merck that it "may cause serious side effects", including but not limited to, "causing the adrenal glands to stop working and increase chances of developing cataracts and glaucoma" as well as a warning to pregnant women that they should not use Lotrisone as it may cause harm to their unborn baby, as it is not known if the cream passes to the breast milk, so it should not be used by women who are nursing. See March 2021 Appellate Brief. A complete rationale must be provided for all opinions expressed. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why this is the case (e.g., lack of evidence relating to the specifics of this case, insufficient state of general medical knowledge, examiner's own limitations in expertise, etc.). 6. Then, readjudicate the claims on appeal. Romina A. Casadei Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. J. Rogers, 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.