Citation Nr: 22013640 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 19-11 085 DATE: March 10, 2022 ORDER New and material evidence has been submitted, and the claim of entitlement to service connection for a back disorder is reopened. New and material evidence has been submitted, and the claim of entitlement to service connection for a skin disorder is reopened. REMANDED Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for a skin disorder is remanded. FINDINGS OF FACT 1. In a May 2014 rating decision, the regional office (RO) denied the Veteran's service-connection claim for a back disorder. The Veteran did not appeal, nor was new and material evidence received within one year of this determination. 2. Since the May 2014 rating decision denying the Veteran's service-connection claim for a back disorder, new evidence has been associated with the claims file that raises a reasonable possibility of substantiating the claim. 3. In a May 2014 rating decision, the RO denied the Veteran's service-connection claim for a skin disorder. The Veteran did not appeal, nor was new and material evidence received within one year of this determination. 4. Since the May 2014 rating decision denying the Veteran's service-connection claim for a skin disorder, new evidence has been associated with the claims file that raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The RO's May 2014 denial of the claim for service connection for a back disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 2. The criteria for reopening the claim for service connection for a back disorder are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The RO's May 2014 denial of the claim for service connection for a skin disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 4. The criteria for reopening the claim for service connection for a skin disorder are met. 38 U.S.C. § 5108; 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 1969 to October 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision. In June 2021, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing is of record. New and Material Evidence In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Under 38 C.F.R. § 3.156(a), new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In determining whether new and material evidence has been received to reopen a claim, there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The RO denied the Veteran's service-connection claim for back and skin disorders in a May 2014 rating decision. The Veteran did not appeal the decision, nor was new and material evidence received within one year of that decision. Thus, the May 2014 rating decision became final as to the claim of service connection for back and skin disorders. The Veteran filed a new claim for service connection for back and skin disorders in May 2016. Evidence received since the May 2014 rating decision includes hearing testimony before the Board, where the Veteran offered more detail about events that occurred during service, and the symptoms that he has experienced during service with respect to his back and skin conditions. The evidence is new, in that it not of record at the time of the May 2014 denial. It is material, in that it is not cumulative or redundant of evidence already of record and raises a reasonable possibility of substantiating the claim for service connection on the merits. Accordingly, the claims for service connection for back and skin disorders are reopened. REASONS FOR REMAND 1. Entitlement to service connection for a back disorder is remanded. The Veteran contends generally that his back disorder is due to service. See May 2016 VA Form 21-516b. During his hearing, the Veteran testified that his back disorder is due primarily to his work as a helicopter mechanic and carrying supplies or making helicopter repairs. He testified that he had to carry generators that weighed about 35 or 40 pounds two or three times a week. He also testified that he fell on his back during service and that, even though it hurt, he had to just keep going and self-medicate weekly for the pain with pain pills he got at the PX. He testified that he never reported to the medical staff for this and that the pain subsided, but that it comes back every now and then. He further testified that when he initially got out of service, he did not have medical coverage, so he just had to keep self-medicating with creams and heating pads until he got into the VA healthcare system years later. He testified that once he entered the VA system, he tried acupuncture and massage therapy and used heat cream. He testified that he had spoken with his VA doctor about hurting his back during service, about having problems off and on for all the years since then, and about how he had been self-medicating; he further testified that he told them it had happened during his tour and ever since he got out of the Army, and that he was told it was probably carrying over from his one fall during service. See June 2021 hearing transcript. In addition to the Veteran's hearing testimony about ongoing back pain since service, post-service treatment records document recurring complaints of back pain that the Veteran has attributed to service. The AOJ previously denied the Veteran's claim, reasoning that there was no evidence of an underlying diagnosis for his complaints. First, the Board notes that treatment records include back pain and chronic pain syndrome in the Veteran's past medical history. Furthermore, the United States Court of Appeals for the Federal Circuit has ruled that pain alone, without an underlying diagnosis, may be considered a disability for VA benefits purposes when that pain manifests in functional limitation. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). To date, a VA examiner has not offered an opinion as to whether any current back disability was caused by or incurred in service. Accordingly, on remand, the Veteran should be afforded an examination and such an opinion should be provided. See McLendon v. Nicholson, 20 Vet. App. 70 (2006). 2. Entitlement to service connection for a skin disorder is remanded. The Veteran contends generally that his skin disorder is due to service. See May 2016 VA Form 21-516b. In connection with his claim, the Veteran was afforded a VA examination in November 2020. As a result of the examination, the VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. By way of rationale, the VA examiner explained that during service, the skin rash condition was acute only; in October 1969, the Veteran was seen by medical for a rash on his back, diagnosed with tinea versicolor, cell scrapings were obtained and sent to the lab, there was no growth after three weeks, and he was treated with Tinactin. He further explained that in May 2016, the Veteran was seen at VA medical center for a chest rash, he was treated for this condition with miconazole and triamcinolone creams, and that he currently reports using ketoconazole and hydrocortisone creams for the rash on his chest. The examiner noted that the Veteran had been treated for a skin rash on the chest in the past 12 months with hydrocortisone and ketoconazole creams and that the Veteran had a small, circular, reddened, dry, non-raised area in the center of his chest for which the Veteran reported he was using medication. However, the examiner stated that there is no confirmed diagnosis for the claimed condition, there is no evidence of chronicity of care, and the symptoms are subjective only. See November 2020 VA examination report. During his Board hearing, the Veteran testified that, during service, he had his clothes washed and dried for him once a week, and he described the laundry practice used to wash and dry his clothing. He testified that toward the end of his last tour, he began to notice that he had a rash and that eventually, it would go away, but when he got out of the service, he noticed that it came back off and on, especially when he was hot and perspired. He testified that, as with his back condition, he self-mediated with Noxzema and other products to try to make it less dry and scaly; after he got into the VA system, he was told it was a type of fungus and was given a cream to put on it as needed. The Veteran testified that he was told that when it occurs, to put it on, and it will help reduce the itching and help it go away more quickly. The Veteran testified that he explained to his providers how long he had been having the problem and what it looked like. He also testified that the rash usually presents in the summer when he is sweating and then once he applies the cream it will be gone in a few weeks, but it comes back. The Veteran testified that the condition always manifests the same way, in a rash with itching, since service. See June 2021 hearing transcript. The Board finds that, in light of the Veteran's hearing testimony, as discussed above, the medical opinion of record is insufficient because it does not reflect consideration of all pertinent evidence; specifically, information provided by the Veteran regarding clothes-washing practices while in the service and the ongoing reoccurrence of his rash were not of record at the time of the 2020 VA examination. Additionally, the Board notes that the November 2020 VA examination was conducted during a time when the Veteran's rash was not active. On remand, a new VA examination should be scheduled, and an etiological opinion obtained. The examination should be scheduled, if at all possible, during a period in which the Veteran is experiencing an active rash. The matters are REMANDED for the following action: 1. Obtain and associate with the file any outstanding VA treatment records. 2. After obtaining all of the outstanding records, schedule the Veteran for an examination to determine the nature and etiology of any diagnosed back conditions. The record must be made available to and reviewed by the examiner, including a copy of this Remand. The examiner should take a history from the Veteran as to the progression of his claimed disability. In formulating any opinion, the examiner must consider the full record, including the Veteran's lay statements concerning the onset and progression of symptoms, and any pertinent post-service treatment records. The examiner should give an opinion as to the following: Is it at least as likely as not (approximately 50 percent or greater probability) that the Veteran has a back disability that had its onset in, or is otherwise related to the Veteran's period of service? The examiner should note that even if symptoms cannot be attributed to a specific diagnosis, a disability exists for VA purposes if pain symptoms manifest in functional impairment. So, if no current diagnosis exists, the examiner must still address the etiology of symptoms, if such manifest in impairment in function. All opinions should be supported by a medical explanation or rationale. 3. After obtaining all of the outstanding records, schedule the Veteran for an examination to determine the nature and etiology of any diagnosed skin conditions. If at all possible, the examination should be scheduled during a period in which the Veteran is experiencing an active rash. The entire record must be made available to and reviewed by the examiner, including a copy of this Remand. The examiner should take a history from the Veteran as to the progression of his claimed disability. In formulating any opinion, the examiner must consider the full record, including the Veteran's lay statements concerning the onset and progression of symptoms, and any pertinent post-service treatment records. The examiner should give an opinion as to the following: Is it at least as likely as not (approximately 50 percent or greater probability) that the Veteran has a skin disability that had its onset in or is otherwise related to the Veteran's period of service? All opinions should be supported by a medical explanation or rationale. 4. Thereafter, readjudicate the issues on appeal. If the claims are denied, issue a supplemental state of the case to the Veteran and his representative. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Fulmer, 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.