Citation Nr: 0813287 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 05-20 226 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a skin condition, to include keratosis pilaris with atopic dermatitis and, if so, whether service connection is warranted for the claimed disability. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for benign prostatic hypertrophy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Associate Counsel INTRODUCTION The veteran had active military service from December 1965 to December 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The issues of entitlement to service connection for keratosis pilaris with atopic dermatitis and whether new and material evidence has been received to reopen a claim of entitlement to service connection for benign prostatic hypertrophy and addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a decision dated April 2003, the RO denied service connection for a skin condition based on the finding that the veteran was not then diagnosed with a skin condition; the veteran did not appeal the April 2003 decision within one year of being notified. 2. Evidence submitted since the April 2003 rating decision, not previously considered, is of such significance that it must be considered to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. The April 2003 RO decision denying the claim of service connection for a skin condition is final. 38 U.S.C.A. §§ 5108, 7105 (West 2002). 2. The evidence received subsequent to the April 2003 RO decision is new and material and the claim of service connection for a skin condition is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify claimants for VA benefits of information necessary to complete and support a claim and to assist claimants in the development of evidence. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.159 (2007). As the issue of whether new and material evidence has been received has been resolved in the veteran's favor, analysis of whether VA has satisfied the duties to notify and assist is not in order. The RO initially denied the veteran's claim of service connection for a skin condition in April 2003. The RO considered service medical records and noted the veteran had failed to report for a VA skin examination. The RO observed that the there was no evidence of record that the veteran then suffered from a skin condition. In this regard, the RO determined that service connection for a skin condition was not warranted because the veteran was not diagnosed with a compensable disability. The veteran was notified of this decision and of his procedural and appellate rights by letter in April 2003. He did not appeal this decision. Thus, it is final. 38 U.S.C.A. § 7105(a) (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2007). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. Manio v. Derwinski, 1 Vet. App 145 (1991). When determining whether additional evidence is new and material, VA must determine whether such evidence has been presented under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108 (West 2002). Effective from August 29, 2001, the regulations defining "new and material evidence" were revised and clarify the types of assistance the VA will provide to a claimant attempting to reopen a previously denied claim. 38 C.F.R. §§ 3.156(a) and 3.159(b). These specific provisions are applicable only to claims filed on or after August 29, 2001. As the veteran filed his claim seeking to reopen in April 2003, the Board has considered these provisions. To reopen a claim which has been previously denied and is final, the claimant must present new and material evidence. 38 U.S.C.A. § 5108 (West 2002). Under the amended regulations, new evidence means 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 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) (2007). The credibility of the evidence is presumed in determining whether new and material evidence has been submitted. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence received since the April 2003 RO decision includes VA treatment records and a July 2003 VA skin examination. Significantly, the VA skin examination indicates the veteran has been diagnosed with keratosis pilaris with atopic dermatitis. As noted above, the veteran was not diagnosed with a skin condition at the time his original claim was denied. The Board concludes that the July 2003 VA examination constitutes new and material evidence. It was not previously of record at the time of the April 2003 rating decision. It is not cumulative of prior records because it provides a diagnosis of a compensable disorder. Previously, the veteran was not diagnosed with such a condition. The evidence is therefore relevant and probative and raises a reasonable possibility of substantiating the claim. The diagnosis, presumed credible, bears substantially upon the specific matters under consideration as it relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. Consequently, the claim is reopened. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a skin condition is reopened; to this extent only, the appeal is granted. REMAND As noted in the above decision, the Board determined that there was new and material evidence to reopen the veteran's claim for service connection for a skin condition. At his March 2008 Board hearing, the veteran testified that he began receiving treatment at the Chicago VA Medical Center within one year of his separation from service in December 1967. The Board notes that only treatment records from July 1980 through October 1980 and January 2002 through January 2004 are of record. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Thus, because the Board has identified outstanding VA records pertinent to the veteran's current claims on appeal VA must undertake efforts to acquire such documents as these records may be material to his claim; a reasonable effort should be made to obtain such records. See 38 U.S.C.A. § 5103A(b). In addition, the veteran was previously denied service connection for benign prostatic hypertrophy in the April 2003 rating decision. This decision indicates that the veteran's claim was denied due to the lack of competent medical evidence establishing an etiological relationship between the veteran's current condition and his active service. Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. See also 38 C.F.R. § 3.156. Following the April 2003 RO denial, the veteran submitted a statement in support of his claim by telephone. The RO then proceeded to readjudicate the veteran's claim on its merits in a January 2004 RO rating decision. The veteran timely appealed that decision, and in a March 2005 statement of the case, the RO continued the denial of service connection. The veteran filed a timely substantive appeal in May 2005. The Board observes that, following the veteran's claim to reopen, he was not provided any VCAA notice. Although the RO appears to have reopened the veteran's previously disallowed claim, the Board is not bound by such decision. The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claims on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). That being said, the Board concludes that a remand is necessary to provide appropriate VCAA notice regarding the veteran's request to reopen his claim. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that in order to successfully reopen a previously and finally disallowed claim, the law requires the presentation of a special type of evidence-evidence that is both new and material. The terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants. Because these requirements define particular types of evidence, when providing the notice required by the VCAA it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented. This notice obligation does not modify the requirement that VA must provide a claimant notice of what is required to substantiate each element of a service- connection claim. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). In other words, VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish his or her entitlement to the underlying claim for the benefit sought. As a final note, during the pendency of this appeal, on March 3, 2006, the Court issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), which held that VCAA notice must include notice regarding the disability rating and the effective date. The Board notes that no such notice was provided to the veteran. Thus, on remand, notice regarding the disability rating and effective date should be sent to the veteran. Accordingly, the case is REMANDED for the following action: 1. Provide the veteran with notice regarding what constitutes new and material evidence with regard to his claim of service connection for benign prostatic hypertrophy. Specifically, the veteran should be informed of the basis for the previous denial of benefits, as well as what evidence and information is necessary to reopen his claim of service connection for benign prostatic hypertrophy. See 38 C.F.R. § 3.156; Kent v. Nicholson, 20 Vet. App. 1 (2006). In addition, the veteran should also be provided with notice regarding the disability rating and effective date. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). 2. Obtain any VA treatment records from the Chicago VAMC for the period from December 1967 through July 1980, October 1980 through January 2002 and January 2004 through the present. A response, negative or positive, should be associated with the claims file. Requests must continue until the AOJ determines that the records sought do not exist or that further efforts to obtain those records would be futile. 3. Upon completion of the above, readjudicate the issues on appeal. If any benefit sought is not granted, issue a supplemental statement of the case and afford the veteran and his representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board as warranted. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs