Citation Nr: 22017492 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 19-18 068 DATE: March 25, 2022 ORDER The application to reopen the previously denied claim for entitlement to service connection for lupus erythematosus is granted. REMANDED Entitlement to service connection for lupus erythematosus is remanded. Entitlement to service connection for fatigue is remanded. Entitlement to service connection for muscle pain is remanded. Entitlement to service connection for Raynaud's disease is remanded. Entitlement to service connection for gout, also claimed as painful joints, is remanded. FINDING OF FACT 1. The appellant's claim for service connection for lupus erythematosus was initially denied in a December 2008 rating decision because the evidence of record showed that lupus erythematosus was not present in service and the available scientific and medical evidence did not support a conclusion that the disability was associated with herbicide agent exposure. The appellant was notified of this decision and his appellate rights in a December 29, 2008, letter. Within a year of the mailing of that letter, the appellant did not file a notice of disagreement, and new and material evidence relevant to this claim was not received. 2. Evidence received since the December 2008 rating decision is related to an unestablished fact necessary to substantiate the claim for service connection for lupus erythematosus and, presuming its credibility, raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The December 2008 rating decision denying entitlement to service connection for lupus erythematosus is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received to warrant the reopening of the previously denied claim for service connection for lupus erythematosus. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the United States Navy from October 1969 to October 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied the application to reopen the previously denied claim of service connection for lupus erythematosus and denied service connection for the other disabilities claimed as secondary to lupus erythematosus. This decision was appealed in a notice of disagreement (NOD) received by VA in June 2016. A Statement of the Case (SOC) was issued by VA in May 2019. VA received the appellant's Substantive Appeal (Form 9) requesting a hearing in June 2019, perfecting the appeal. The appellant appeared before the undersigned Veterans Law Judge for a hearing on these issues in November 2021. A transcript of that hearing has been added to the record on appeal and was reviewed in deciding this claim. 1. The claim to reopen the previously denied claim for entitlement to service connection for lupus erythematosus is granted. In general, decisions of the RO and the Board that are not appealed in the prescribed period are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims such as this one, filed on or after August 29, 2001, 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. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See 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 evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Id. at 118; but see Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to a claimant is not new and material). Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (noting the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). The appellant's claim for service connection for lupus erythematosus was initially denied in a December 2008 rating decision because the evidence of record showed that lupus erythematosus was not present in service, because the condition was not amongst the enumerated diseases presumably associated with herbicide agent exposure, and because the available scientific and medical evidence did not otherwise support a conclusion that the disability was associated with herbicide exposure. The appellant was notified of this decision and his appellate rights in a December 29, 2008, letter. Within a year of the mailing of that letter, the appellant did not file a notice of disagreement, and new and material evidence relevant to this claim was not received. Accordingly, the Board finds that the December 2008 rating decision is final. The Board finds that the evidence received since the December 2008 rating decision is related to an unestablished fact necessary to substantiate the claim for service connection for lupus erythematosus. Following the appellant's November 2021 hearing, he submitted a personal statement indicating that he had spoken to one of his treating physicians about his case, and that the physician informed it that it "certainly seems plausible" that his lupus is related to his exposure to herbicide agents. The Board notes this evidence is new, as it was not previously of record, and material, as it goes towards establishing one of the criteria for service connection, a link between the claimed disability and an in-service injury. Presuming the credibility of this evidence, the Board finds that it raises a reasonable possibility of substantiating the claim. As such, the Board finds that the criteria to reopen the previously denied claim are met. As noted below, remand of this claim is necessary for further development prior to adjudication. REASONS FOR REMAND 1. Entitlement to service connection for lupus erythematosus is remanded. The appellant contends that he was exposed to herbicide agents while in active service and that this exposure to herbicide agents is the cause of his lupus erythematosus. After a review of the evidence of record, the Board finds that further development is necessary prior to adjudicating this claim. On the question of whether the appellant was exposed to herbicide agents, the Board notes that service personnel records show that he served aboard the USS Constellation and the USS Oriskany off the coast of the Republic of Vietnam from April 1972 to November 1972. Recently, Congress passed the Blue Water Navy Vietnam Veterans Act of 2019 (the Act), with an effective date of the Act of January 1, 2020. The Act creates new statutory requirements for the adjudications of certain claims based on veterans' herbicide agent exposure in the "offshore waters" of the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975. Considering the evidence of the appellant's service aboard the USS Constellation and the USS Oriskany, the Board finds that remand is necessary to determine whether either of these vessels traveled within the "offshore waters" of the Republic of Vietnam, as defined in the Act, during the applicable time-period and while the appellant was aboard the vessels. 38 U.S.C. § 1116A. Should the appellant's presumed exposure to herbicide agents be established, the Board finds that a VA examination should be obtained to determine whether his lupus erythematosus is approximately as likely as not due to this verified exposure. VA's Secretary has determined that there is no positive association between exposure to herbicide agents and any other condition for which VA has not specifically determined a presumption of service connection is warranted. See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2012, 79 Fed. Reg. 20,308 (Apr. 11, 2014). Despite the presumptive regulations, a claimant may establish service connection based on exposure to herbicide agents with proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997). The Board notes that the appellant has indicated that his treating physician, Dr. A.S. has told him that "it certainly seems plausible" that his lupus would be related to exposure to herbicide agents. The Board finds that this provides at least an indication of a connection between herbicide agents exposure and the claimed disability, lupus erythematosus. As such, if exposure to herbicide agents is established, the criteria to obtain a VA medical examination and opinion will have been met. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 2. Entitlement to service connection for fatigue is remanded. 3. Entitlement to service connection for muscle pain is remanded. 4. Entitlement to service connection for Raynaud's disease is remanded. 5. Entitlement to service connection for gout, also claimed as painful joints, is remanded. The appellant has claimed that his chronic fatigue, muscle pain, Raynaud's disease, and gout, also claimed as painful joints, are all caused by his lupus erythematosus. As that issue is being remanded for further development the Board finds that remand of these issues is necessary because any determination on these claims is inextricably intertwined with the claim for service connection for lupus erythematosus. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (holding that where a decision on one issue would have a significant impact upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). To that end, should the appellant's lupus erythematosus be granted service connection by the RO after the appropriate development is completed, the RO should obtain VA medical examinations and opinions addressing whether any of these claimed disabilities are approximately as likely as not proximately due to, or aggravated beyond their natural progression by, his lupus erythematosus. The matters are REMANDED for the following action: 1. Undertake the necessary efforts to determine whether the appellant served in the 12-nautical mile territorial sea of the Republic of Vietnam during active service. 2. If the appellant's exposure to herbicide agents is established, schedule him for a VA examination for his claimed lupus erythematosus. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is lupus erythematosus at least as likely as not related to in-service exposure to herbicide agents? The examiner is advised that a negative opinion cannot be based solely on the fact that the lupus erythematosus is not on the list of diseases that are presumptively associated with exposure to herbicide agents. The examiner should discuss any relevant medical literature on the topic. 3. If a positive opinion is provided regarding whether the appellant's lupus erythematosus is approximately as likely as not due to a verified exposure to herbicide agens, the appellant should be scheduled for VA medical examinations of his chronic fatigue, muscle pain, Raynaud's syndrome, and gout, also claimed as joint pain. After determining the nature of these disabilities, the examiner should opine as to whether they are approximately as likely as not proximately due to, or aggravated beyond their natural progress by, his lupus erythematosus. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kleponis, 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.