Citation Nr: 0214030 Decision Date: 10/09/02 Archive Date: 10/17/02 DOCKET NO. 00-18 874A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for chloracne secondary to herbicide exposure, and if the claim is reopened, whether service connection is warranted. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Panayotis Lambrakopoulos, Associate Counsel INTRODUCTION The veteran served on active duty from November 1969 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) from a May 2000 RO decision that determined that new and material evidence had not been submitted to reopen a claim for service connection for chloracne due to herbicide exposure during service in Vietnam. The current Board decision addresses the issue of whether the claim for service connection for chloracne has been reopened by new and material evidence, and the Board finds favorably on that issue. A Board decision on the merits of the claim for service connection for chloracne will be prepared at a later date, after the Board develops additional evidence on that issue, in accordance with 38 C.F.R. § 19.9 (2002). FINDINGS OF FACT In an unappealed January 1997 decision, the RO denied a claim for service connection for chloracne secondary to herbicide exposure during Vietnam service. Evidence received since that time includes evidence that is neither cumulative nor redundant and is so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSION OF LAW New and material evidence has been submitted sufficient to reopen a claim for service connection for chloracne secondary to herbicide exposure. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual background The veteran served on active duty from November 1969 to December 1971, including service in Vietnam. Service connection is currently in effect for post-traumatic stress disorder (PTSD) which is rated 100 percent, and for diabetes mellitus which is rated 20 percent; the RO has found the total compensation rating to be permanent in nature. In January 1997, the RO denied service connection for chloracne due to herbicide exposure on the grounds that there was no current evidence of chloracne. The evidence that was of record at that time included service and post-service medical records. The veteran did not appeal the RO's decision. Evidence has been received since the January 1997 RO decision pertaining to various VA treatment. The evidence includes treatment of skin conditions, such as a July 1999 skin infection involving the groin and rectal area. An October 1999 letter signed by a VA nurse (a specialist in adult mental health) and a VA staff psychiatrist refers to current treatment for PTSD, as well as other ailments including chloracne. According to the letter, the veteran had been given Biaxin for an acute episode of chloracne. It was further noted that he had to take antibiotics "all the time to control the chloracne that was caused by Agent Orange in Vietnam." Other records note the veteran was seen in October 1999 for hidradenitis that redeveloped after sweating; he was told not to use anti-perspirant, and a medication was changed. In January 2000, he had an acne-like pustule of the left ear that was resolving with self-treatment on doxycycline. He was treated in April 2000 for an infected earlobe cyst, but not chloracne. The veteran filed an application to reopen the claim for service connection for chloracne in April 2000. II. Analysis Through discussions in correspondence, the rating decision, and the statement of the case, the veteran has been notified of the evidence needed to reopen his claim for service connection for chloracne. As to the preliminary issue of whether that claim has been reopened with new and material evidence, there has been satisfactory compliance with the notice and duty to assist provisions of the law. 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2002); 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. § 3.159); see Quartuccio v. Principi, 16 Vet. App. 183 (2002). A claim for service connection for chloracne was previously denied in a January 1997 RO decision. The veteran did not appeal that decision, which thus became final. 38 U.S.C.A. § 7105. Although the January 1997 RO decision is considered final, the claim may be reopened if new and material evidence has been submitted since then. 38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). As applicable to the present appeal, "new and material evidence" means evidence not previously submitted to VA decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (2001); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). [The Board notes that the definition of "new and material evidence" was recently revised, but the new version only applies to applications to reopen which are received by the VA on or after August 29, 2001; thus the new version does not apply to the instant case, which the veteran filed in April 2000. See 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. § 3.156(a)).] Service connection may be granted for disability due to a disease or injury which was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. A veteran who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange) during such service. In the case of such a veteran, service connection based on herbicide exposure will be presumed for certain specified diseases including chloracne (or other acneform disease consistent with chloracne) if it becomes manifest to a compensable degree within one year after last exposure in service. 38 U.S.C.A. § 1116 (as amended by Pub. L. 107-103, 115 Stat. 976 (2001)); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). At the time of the RO's January 1997 decision, medical evidence on file did not show the herbicide-related disease of chloracne. After the January 1997 decision, the evidence received includes, in part, an October 1999 letter from a VA nurse (a clinical specialist in adult mental health) and a VA staff psychiatrist which relates the veteran was under treatment for chloracne and that such was due to Agent Orange exposure in Vietnam. For the purpose of determining whether the claim for service connection has been reopened, this letter will be accepted as credible. It contains information which is neither cumulative nor redundant and is so significant that it must be considered in order to fairly decide the merits of the claim. The Board finds that new and material evidence has been submitted, and thus the claim for service connection for chloracne is reopened. This does not mean that service connection for chloracne is granted; rather, as noted in the introduction of the present decision, after the Board develops additional evidence, it will make a later decision on the merits of service connection. ORDER The claim for service connection for chloracne has been reopened by new and material evidence; and to this extent only, the appeal is granted. L.W. TOBIN Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.