Citation Nr: 22018083 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 17-33 434 DATE: March 28, 2022 ORDER The application to reopen a claim of service connection for iritis is granted. Service connection for bilateral iritis (iritis) is granted. REMANDED The issue of service connection for skin cancer is remanded. FINDINGS OF FACT 1. In a June 2009 rating decision, the RO denied service connection for iritis. The Veteran received notice of the decision, did not appeal this decision, and new and material evidence was not received within one year after it was issued. 2. Evidence received since the June 2009 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim of service connection for iritis. 3. The Veteran's iritis had its onset during his second period of active duty service. CONCLUSIONS OF LAW 1. The June 2009 rating decision denying the claim of service connection for iritis is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. The criteria to reopen the claim of service connection for iritis based on the receipt of new and material evidence have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The criteria for service connection for iritis have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1993 to February 1994, August 2004 to July 2005, June 2008 to September 2008, and June 2011 to April 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2021, the Veteran presented testimony before the undersigned Veterans Law Judge. During the hearing, the Veteran's request for the record to be held open for an additional 90 days to allow him to submit additional evidence was granted. The 90 day period has concluded and additional evidence was not received. New and Material Evidence Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decision makers. 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (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. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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). 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) (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). Whether new and material evidence has been received to reopen the claim of service connection for iritis. In a June 2009 rating decision, the RO denied service connection for iritis on the basis that the evidence did not show that the Veteran's iritis was permanently worsened as a result of service, was related to service, or that it was caused or aggravated by his service-connected status post herniated nucleus pulposus with disc replacement L3-L4 and L4-L5 (low back disability). Later that month, in a June 2009 notification letter, the Veteran received notice of the June 2009 rating decision. He did not appeal that decision and new and material evidence was not associated with the record within one year of its issuance. Accordingly, the June 2009 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The evidence at the time of the June 2009 rating decision included the Veteran's service treatment records (STRs), treatment records, an April 2009 VA examination (showing a diagnosis of iritis), and the Veteran's statements where he related his iritis to his military service and secondary to his service-connected low back disability. In March 2014, the Veteran submitted an application to reopen his previously denied claim of service connection for iritis. Relevant evidence received after the June 2009 rating decision includes the Veteran's treatment records. Specifically, treatment records suggest that the Veteran's onset of iritis was during his second period of active duty service. For example, in a July 2014 treatment record, the Veteran's treating physician indicated that his iritis manifested during active duty service in 2005. Also, during the Board hearing, the Veteran testified that his iritis had its onset during his active duty service. Since the June 2009 rating decision, the Veteran's treatment providers statements regarding the onset of his iritis during his active duty service have been associated with the record. The Veteran's treatment providers statements regarding the onset of his iritis were not previously considered in the last prior final denial and such evidence relates to unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. See Shade, 24 Vet. App. at 117. Therefore, the criteria for reopening the claim of service connection for iritis are met. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for iritis. The Veteran claims that his iritis had its onset during his second period of active duty service and that it has continued since. See, e.g., Board hearing transcript (June 2021). He also asserts that his iritis is due to his service-connected ankylosing spondylitis of the lumbar spine (low back disability). The Veteran explained that during service he was diagnosed as having ankylosing spondylitis and HLA B27 which caused his iritis. Id. Indeed, in this case, the evidence shows that the Veteran's iritis had its onset during his second period of active duty service and that it has continued since. Specifically, the evidence shows that during the appeal period, the Veteran was diagnosed as having iritis, in both eyes. See VA treatment record (October 2013) (where iritis was listed as an active problem). The Veteran's STRs and post-service records reflect that the Veteran's iritis had its onset in 2005, during his second period of active duty service. For instance, the Veteran's STRs, from his third period of active duty service, clearly shows that he was diagnosed as having iritis. See, e.g., STR (June 2008). STRs dated in June 2008 and July 2008 reflect that the Veteran had several ophthalmology appointments regarding his iritis. In these ophthalmology treatment visits, the treatment provider indicated that the Veteran was diagnosed as having iritis in 2005 when he "had first attack 3 years ago" and suggested that the Veteran's iritis was due his ankylosing spondylitis. In particular, in the July 2008 ophthalmology treatment record, the treatment provider wrote that the Veteran had iritis and that he was positive for HLA B27, which was a "rare cell" and then wrote iritis "? ankylosing spondylitis." Thereafter, the July 2008 treatment provider referred the Veteran to a rheumatologist for his iritis and that he was to follow up at the ophthalmology clinic. To this extent, the Veteran's STRs indicate that he was diagnosed as having iritis in 2005. However, STRs provide no exact month in 2005 when the Veteran was first diagnosed with iritis. For instance, in a July 2006 report of medical history, the examining physician wrote that the Veteran had a "bout of iritis in 2005." Also, one year after the Veteran's separation from his third period of active duty service, a treatment provider wrote that the Veteran had iritis in 2005. As indicated above, the Veteran's second period of active duty service was from August 2004 to July 2005. Other than the notation of a "bout of iritis in 2005" from the July 2006 report of medical history, the Veteran's enlistment examination reports do not note iritis. As such, based on the above, the evidence is unclear whether the Veteran's iritis had its onset during his second period of active duty. After service, the Veteran's treatment providers also indicate that his iritis had its onset in 2005. Notably, several of the Veteran's post-service treatment providers indicated that the Veteran was diagnosed with iritis during his "active duty service" in 2005. See VA treatment record (June 2017). Specifically, in a June 2017 treatment record, a VA rheumatologist wrote "[w]e have documented that [i]ritis, which was diagnosed/treated during his active service are absolutely related to his HLA-B27+ disease of which [a]nkylosing [s]pondylitis is also related." Also, in a July 2014 VA treatment record, the treatment provider wrote "it is important to note that [the Veteran] had clear evidence of ankylosing spondylitis on setting while he was on active duty, first manifest by the iritis in 2005 and then with the positive HLA-B27 and consistent imaging in 2008." Additionally, in an April 2009 VA examination report, the examiner indicated that the Veteran had iritis "when activated in 2005" and that it occurred again in 2008; the examiner gave no etiology opinion. The Board finds that June 2017 statement from the Veteran's treating rheumatologist is the most persuasive evidence pertaining to the onset/etiology of the Veteran's iritis. Critically, the opinion was rendered by the Veteran's treating physician who specializes in treating iritis. Not only is she uniquely familiar with the nature of the disorder, but she is also familiar with the Veteran's unique medical history and the circumstances of his case. For these reasons, the Board assigns significant probative value to the June 2017 statement indicating that the Veteran's iritis had its onset during his ative duty service. Finally, the lay evidence of record also supports the Board's finding that the Veteran's current iritis had its onset during his second period of active duty service and that it has continued since. To end, throughout the appeal period, the Veteran has consistently reported that he was diagnosed as having iritis in 2005 during his active duty military service. The Veteran is competent to report factually observable occurrences in service, the timing of the observable symptoms of a disability, and to receipt of medical treatment and what providers had related about the conditions. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's statements are credible as his statements are consistent with the evidence of record. In sum, the most probative evidence of record shows that the Veteran was diagnosed as having iritis during his second period of active duty and that it has continued since. Accordingly, service connection for iritis is granted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND The issue of service connection for skin cancer is remanded. The Veteran claims that his skin cancer is due to his military service. Alternatively, he asserts that his skin cancer is the result of his medication, Humira, prescribed to treat his service-connected low back disability. See Board hearing transcript (June 2021). Specifically, he reports that the website for Humira states that the medication makes individuals more susceptible to skin cancer. The medical evidence shows that in March 2014, basal cell carcinoma was listed as an active problem in the Veteran's treatment record. The Veteran's STRs show that in January 2005 the Veteran had a skin lesion on chin. Also, a January 2005 STR shows that the Veteran underwent a biopsy of skin from his chin that was diagnosed as fibrous papula angiofibroma. In November 2014, the Veteran was afforded a VA skin examination; the examiner diagnosed basal cell carcinoma and indicated that the onset was in 2009. The examiner indicated that Veteran was diagnosed with right temple basal cell carcinoma that was excised, and that there was no recurrence. The examiner found that the Veteran's skin cancer was less likely than not due to his military service; the examiner reasoned that "this is a common condition that resolves without residuals and that there was no evidence of chronicity found." In this case, the Board finds that the November 2014 VA opinion is flawed, as the examiner did not address the Veteran's STRs that showed that he had a fibrous papula angiofibroma and whether it was due to the Veteran's current skin cancer. Additionally, the examiner did not address whether the Veteran's current skin cancer was caused or aggravated by his medication required to treat his service-connected low back disability. For these reasons, a remand is required to obtain a VA medical opinion to address the Veteran's claim of service connection for skin cancer, on a direct and secondary basis. The matter is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Obtain a medical opinion from a physician regarding the Veteran's claim of service connection for skin cancer. Schedule the Veteran for an examination at the discretion of the clinician. The physician should review the entire claims file, including the June 2021 Board hearing transcript, before answering the following: a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's skin cancer (diagnosed as basal cell carcinoma) had its onset in service or is otherwise related to service. The physician should address the Veteran's January 2005 STRs that show that he was diagnosed with a fibrous papula angiofibroma on his chin after a shave biopsy. b. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's skin cancer was caused by his medication used to treat his service-connected low back disability. c. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's skin cancer was aggravated (worsened) by his medication used to treat his service-connected low back disability. The physician should address the Veteran's assertions that Humira (which is the medication the Veteran requires for his service-connected low back disability) makes individuals more susceptible to skin cancer. (Continued on the next page) The physician must provide a complete rationale for each opinion. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Castillo, 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.