Citation Nr: 0813572 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 07-11 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a dermatological condition, to include recurrent boils, cysts, and residual scarring. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. T. Sprague, Associate Counsel INTRODUCTION The veteran had active service in the United States Army from March 1958 to December 1962 and from March 1963 to January 1966. This matter comes before the Board of Veterans' Appeals (Board) from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The veteran was afforded a Travel Board Hearing before the undersigned Veterans Law Judge in July 2007. A transcript is associated with the claims file. FINDINGS OF FACT 1. Evidence received since the last finalized decision relates to a previously unestablished fact regarding the existence of a current disability; the evidence raises a reasonable possibility of substantiating the claim. 2. The veteran has residual scarring on his body as a result of an in-service exposure to bamboo contaminated with human fecal matter; the resulting sepsis, treated in service, caused boils to erupt on the skin which eventually subsided. There is no active boil pathology noted on any examination. CONCLUSIONS OF LAW 1. New and Material evidence has been received to reopen a claim for entitlement to service connection for a dermatological condition, to include recurrent boils, cysts, and residual scarring. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). 2. Service connection for a dermatological condition, to include recurrent boils, cysts, and residual scarring is warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. First, VA has a duty to notify the appellant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103 (West 2002); 38 C.F.R. § 3.159(b) (2007). Information means non-evidentiary facts, such as the claimant's address and Social Security number or the name and address of a medical care provider who may have evidence pertinent to the claim. See 66 Fed. Reg. 45620, 45,630 (August 29, 2001); 38 C.F.R. § 3.159(a)(5) (2007). Second, VA has a duty to assist the appellant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2007). As discussed in more detail below, sufficient evidence is of record to grant the application to reopen the veteran's claim of entitlement to service connection for a dermatological condition with residual scarring. Therefore, no further development is needed with respect to the aspect of the appeal decided herein. Legal Criteria-New and Material Evidence In general, decisions of the agency of original jurisdiction (the RO) or the Board that are not appealed in the prescribed time period are final. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. 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 that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. See Knightly v. Brown, 6 Vet. App. 200 (1994). Evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence had been presented), will be evaluated in the context of the entire record. See Evans v. Brown, 9 Vet. App. 273 (1996). 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(a). Legal Criteria-Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. With a chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support a claim of service connection. Id. Service connection may be granted for any disease diagnosed after discharge, 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 generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Alternatively, the nexus between service and the current disability can be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Analysis-New and Material The veteran was initially denied service connection for a skin disorder, characterized as blood disease with boil manifestations, in an April 1981 rating decision on the basis that no evidence then of record showed a current chronic disability. A subsequent rating decision, dated in August 1995 addressed boils specifically, and found that there was no current disability. A July 2003 rating decision also denied service connection for boils, specifically as relates to herbicide exposure, and issued a denial based on no current disability being noted. No appeal was offered within the last finalized decision of record, which is final. In order for the veteran to be successful in reopening his claim, he must submit evidence that is both new and material. See 38 C.F.R. § 3.156. That is the evidence must not have been of record at the time of the last finalized decision, and it must relate to an unestablished fact necessary to substantiate the underlying claim. In this case, such evidence must relate to the first element of service connection, the existence of a current disability. Upon review of the record, the Board notes that there is a private medical opinion, dated in June 2006, and a VA scar examination dated in September 2006 which addressed the presence of residual scars on the veteran's body. In the VA examination, the veteran's service-connected scar on the gluteal muscle was noted to be resultant from an in-service puncture wound. The private examination noted that there were several scars on the body and that they are consistent with the boils developed in service as a result of an infection, resulting from a puncture wound in the feet. The evidence submitted is new, in that the evidence was not of record at the time of the last finalized denial, and it is material, in that the showing of residual scarring due to in- service boils is evidence of a current disability, which is an unestablished fact that raises a chance of substantiating the underlying claim. Thus, the claim is reopened. See 38 C.F.R. § 3.156. Analysis-Service Connection The veteran was treated in service on several occasions for a skin disorder which manifested as boils. The veteran asserts, and the treatment records substantiate, that there was a puncture wound to the lower extremity by a foreign object tainted with fecal matter. The bacteria in the contaminated waste caused the eruption of boils, and the veteran was hospitalized to treat the infection. For several years after service separation, there was no competent opinion which found a current disability as a result of this in-service treatment. In June 2006, however, the veteran was seen by his private physician. This doctor posited an opinion which stated that there were "many scars" present on the veteran's body as a result of his in- service bout with boils. The physician stated that he "totally agree[d] with the patient that he had a sepsis that was caused by contaminated bamboo penetrating the skin." The resultant boils led to "extensive scarring" that was, as mentioned, noticed on examination. A VA examination, dated in September 2006, also confirmed scarring (no active boil pathology was noted), and related it to an in-service exposure to contamination. Both the private and VA examinations did not note active dermatological disease; however, the scarring is clear evidence of the disorder, and regardless of the severity noted at examination, there is a current disability present. While it appears that the physician's opinion was based on subjective history, the extensive treatment in-service corroborates the event which formed the basis of the nexus opinion. Thus, the medical opinion of June 2006 is highly probative in establishing both the existence of a current disability and a relationship between that disability and an in-service event. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); see, e. g., Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006). As such, the Board determines that the requirements for service connection have been met, and the claim will be granted. ORDER New and material evidence having been received, the claim for entitlement to service connection for a dermatological condition, to include recurrent boils, cysts, and residual scarring is reopened. Entitlement to service connection for a dermatological condition, to include recurrent boils, cysts, and residual scarring, is granted. ______________________________________________ MICHAEL A. PAPPAS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs