Citation Nr: 0813620 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 04-17 621 ) DATE ) ) Received on appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for diabetes mellitus as due to exposure to herbicides. 2. Entitlement to service connection for glaucoma, to include as secondary to diabetes mellitus. 3. Entitlement to an effective date earlier than June 5, 1984 for service connection for sickle cell anemia, to include whether there was clear and unmistakable error (CUE) contained in June 1984, August 1984, and February 1985 rating decisions. 4. Whether new and material evidence has been received to reopen a claim for service connection for chloracne, including as due to exposure to herbicides. 5. Whether new and material evidence has been received to reopen a claim for service connection for scar tissue in the throat claimed as due to exposure to herbicides. 6. Whether new and material evidence has been received to reopen a claim service connection for a skin rash claimed as due to exposure to herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Parker, Counsel INTRODUCTION The veteran served on active duty from October 1966 to July 1970. This appeal comes to the Board of Veterans' Appeals (Board) on appeal from various rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida (St. Petersburg RO) and the RO in Jackson, Mississippi (Jackson RO). A February 1985 rating decision from the St. Petersburg RO had granted service connection for sickle cell anemia, and assigned an effective date for service connection of June 5, 1984 (date of receipt of formal claim). A March 1993 rating decision of the St. Petersburg RO denied an earlier effective date for service connection for sickle cell disease, including finding no CUE in prior rating decisions. The veteran perfected an appeal of this earlier effective date issue. While the Board subsequently rendered a decision in the related original jurisdiction motions for CUE in Board decisions in 1980 and 1983 under the provisions of 38 U.S.C.A. § 7111, which is one of the bases the veteran alleged in pursuit of the appeal for an earlier effective date for service connection for sickle cell disease, the Board has not yet adjudicated the appealed issue of earlier effective date for service connection for sickle cell disease, and will do so in this decision. This appeal also comes to the Board from a March 1994 rating decision issued by the St. Petersburg RO, which denied service connection for chloracne, scar tissue of the throat, and skin rash, all as due to herbicide exposure. The veteran entered a notice of disagreement with this decision in April 1994; the RO issued a statement of the case in June 1994; and the veteran entered a substantive appeal in July 1994. In this decision and statement of the case, the RO addressed the merits of service connection, as presumptively and directly due to herbicide exposure, without determining whether new and material evidence had been received to reopen the claims. The veteran subsequently withdrew the appeal on the issue of service connection for scar tissue of the throat as due to herbicide exposure; consequently, the March 1994 rating decision as to that issue became final, requiring new and material evidence to reopen this issue. The other issues of reopening service connection for chloracne and a skin rash remain on appeal. This appeal also comes to the Board from a September 2003 rating decision issued by the RO in Jackson, Mississippi (Jackson RO), which purported to find that no new and material evidence had been received sufficient to reopen the veteran's previously denied service-connection claims for chloracne, a skin rash, or scar tissue in the throat as due to Agent Orange exposure, and denied the remainder of the veteran's claims. Because an appeal had already been perfected on the issues of reopening service connection for chloracne and skin rash, the remaining issue adjudicated in the September 2003 rating decision that was appealed from this rating decision was the issue of reopening service connection for scar tissue in the throat (as due to herbicide exposure). The veteran testified at RO hearings and at Central Office (CO) Board hearings before the undersigned Veterans Law Judge in August 1998 and February 2005; copies of these hearing transcripts are associated with the record. This case was remanded by the Board in December 2005 to comply with the duty to notify and assist a claimant, including issuance of notice letters, requesting VA treatment records, requesting records from the U.S. Social Security Administration (SSA), VA examination and medical opinions, and readjudication of the issues. That notice and development has now been completed, and the case has now been returned to the Board further appellate consideration. This case has been advanced on the Board's docket due to the severely impaired health of the appellant. See 38 U.S.C.A. §7107 (West 2002 & Supp. 2007); 38 C.F.R. § 20.900(c) (2007). In a December 2007 submission, the veteran indicated that he wanted an increased rating for his service-connected post- traumatic stress disorder (PTSD). A December 2005 Board decision adjudicated the issue of rating for PTSD. The December 2005 Board decision was final when issued. See 38 U.S.C.A. § 7111 (West 2002). The veteran appears to be unaware that the issue of rating for PTSD has been addressed in a final decision, and is no longer before the Board on appeal. The veteran's December 2007 contention might be construed as a new claim for increased rating for PTSD. The apparent claim for an increased rating for PTSD is referred to the RO for appropriate action, including clarification from the veteran as to whether he is claiming increased rating for PTSD. FINDINGS OF FACT 1. The veteran was exposed to herbicides in service, and the weight of the competent evidence is at least in relative equipoise on the question of whether the veteran has a currently diagnosed disability of diabetes mellitus. 2. The weight of the competent evidence demonstrates that the veteran's glaucoma is not caused or aggravated by service, including exposure to herbicides in service, and is not caused or aggravated by a service-connected disability, including diabetes mellitus. 3. A September 1983 decision, the Board determined that the additional evidence added since its February 1980 denial of service connection for sickle cell anemia did not present a new factual basis and denied reopening of service connection for sickle cell anemia. 4. The veteran's informal claim to reopen service connection for sickle cell disease, a VA hospitalization report, was received by VA on October 18, 1983. 5. Entitlement to service connection for sickle cell disease arose on October 18, 1983. 6. The veteran's formal claim to reopen service connection for sickle cell disease was received by VA on June 5, 1984. 7. A February 1985 rating decision granted service connection for sickle cell anemia and assigned an effective date of June 5, 1984; the veteran was notified of that decision on March 20, 1995; and the veteran did not disagree with the effective date assigned within one year of notice of the decision. 8. The February 1985 rating decision was clearly and unmistakably erroneous in its assignment of effective date for the grant of service connection for sickle cell disease; but for that error, the effective date for the grant of service connection for sickle cell disease would have been October 18, 1983. 9. A December 1991 rating decision denied service connection for chloracne, finding that there was no evidence of current diagnosis of chloracne; the veteran perfected an appeal, but at a May 1992 RO hearing withdrew his appeal for service connection for chloracne. 10. The evidence associated with the claims file subsequent to the December 1991 rating decision denial of service connection chloracne, when considered with previous evidence of record, relates to an unestablished fact of current diagnosis of chloracne that is necessary to substantiate the veteran's claim for service connection for chloracne, including as due to herbicides, and raises a reasonable possibility of substantiating the claim. 11. The veteran was exposed to herbicides in service, and the weight of the competent medical evidence is in relative equipoise on the question of whether the veteran has a currently diagnosed disability of chloracne or other acneform disease consistent with chloracne. 12. A March 1994 rating decision denied service connection for scar tissue in the throat claimed as due to exposure to herbicides, finding that the competent medical evidence did not relate the scar tissue to service, including herbicides in service; the veteran entered a notice of disagreement with this decision in April 1994, but subsequently withdrew his appeal of this issue. 13. The evidence associated with the claims file subsequent to the March 1994 rating decision denial of service connection for scar tissue in the throat claimed as due to exposure to herbicides, when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the veteran's claim for service connection for scar tissue in the throat claimed as secondary to exposure to herbicides, and does not raise a reasonable possibility of substantiating the claim. 14. A September 1983 Board decision denied service connection for a skin disorder (keratoses pilaris), finding that keratoses pilaris was not chronic in service, and that the competent medical evidence did not relate the current skin disorder of tinea cruris to service, including to acute keratoses pilaris in service. 15. The evidence associated with the claims file subsequent to the September 1983 Board decision that denied service connection for a skin disorder, when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the veteran's claim for service connection for a skin rash claimed as due to exposure to herbicides, and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the veteran's favor, the criteria for service connection for diabetes mellitus as due to exposure to herbicides have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). 2. The criteria for service connection for glaucoma, to include as secondary to diabetes mellitus, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2007). 3. Based on CUE in a February 1985 rating decision assignment of effective date for service connection for sickle cell disease, the criteria for an earlier effective of October 18, 1983, the date of receipt of informal claim to reopen, for the grant of service connection for sickle cell disease have been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 5110, 7104, 7105 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.105, 3.157, 3.159, 3.303, 3.400, 20.1100, 20.1103 (2007). 4. The December 1991 rating decision that denied service connection for chloracne became final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2007); 38 C.F.R. §§ 20.204, 20.1103 (2007). 5. The evidence associated with the claims file subsequent to the December 1991 rating decision denial of service connection for chloracne is new and material, and the claim for service connection for chloracne is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156(a) (2007). 6. Resolving reasonable doubt in the veteran's favor, the criteria for service connection for chloracne as due to herbicide exposure have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). 7. The March 1994 rating decision that denied service connection for scar tissue in the throat as due to herbicide exposure became final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2007); 38 C.F.R. §§ 20.204, 20.1103 (2007). 8. The evidence associated with the claims file subsequent to the March 1994 decision that denied service connection for scar tissue in the throat as due to herbicide exposure is not new and material, and the claim for service connection is not reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156(a) (2007). 9. The September 1983 Board decision that denied service connection for a skin rash was final when issued. 38 U.S.C.A. § 7104 (West 2002 & Supp. 2007); 38 C.F.R. § 20.1100 (2007). 10. The evidence associated with the claims file subsequent to the September 1983 Board decision that denied service connection for a skin rash is not new and material, and the claim for service connection is not reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Such notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The duty to notify provisions of the statute and implementing regulations apply to claims to reopen based on new and material evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). An April 2006 VA notice and duty to assist letter satisfied VA's duty to notify under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159, as the letter informed the appellant of what evidence was needed to establish the benefits sought, of what VA would do or had done, and what evidence he should provide, and informed the appellant that it was his responsibility to make sure that VA received all requested records that are not in the possession of a Federal department or agency necessary to support the claims. In addition, he was specifically requested to provide any evidence in his possession that pertained to his claims. See 38 C.F.R. § 3.159(b)(1). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U.S. Court of Appeals for Veterans Claims (Court) clarified VA's duty to notify in the context of claims to reopen. With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Such notice was provided to the veteran in the April 2006 letter. During the pendency of this appeal, the Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. In the present appeal, in the April 2006 letter, the appellant was not provided with notice of the type of evidence regarding ratings or an effective date, if service connection benefits were granted on appeal. In addition, with regard to the service connection and reopening claims that are being denied, no effective date will be assigned, so the Board finds that there can be no possibility of any prejudice to the claimant under the holding in Dingess. VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Regarding the duty to assist, the Board remanded this case in December 2005 for further notice and assistance. In compliance with the Board's December 2005 remand, the RO issued a notice letter to the appellant (April 2006), obtained additional service treatment records, obtained additional VA treatment records (April 2006), obtained SSA records (September 2007), obtained a VA examination with medical nexus opinions (April 2007), then readjudicated the appellant's claims and issued a Supplemental Statement of the Case (December 2007). The veteran has also submitted service, VA, and private medical evidence, multiple written submissions and lay statements, and has provided personal hearing testimony at hearings on appeal. The Board finds that VA has substantially complied with the Board's December 2005 remand with regard to this appeal. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). On the issue of earlier effective date for service connection, the earliest possible date permitted by the effective date regulations has been granted, so that an earlier effective date is not legally possible. In cases such as this, where a claim cannot be substantiated because there is no legal basis for the claim, or because undisputed facts render the claimant ineligible for the claimed benefit, VA is not required to meet the duty to assist a claimant. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002); see also VAOPGCPREC 5-2004. For these reasons, the Board is satisfied that VA has sufficiently discharged its duties to notify and assist regarding these claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the issues on appeal. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection Law and Regulations In March 2003, the veteran claimed service connection for Type II diabetes mellitus as due to exposure to herbicides (Agent Orange), and service connection for glaucoma as secondary to diabetes mellitus. In the September 2003 rating decision on appeal, the Jackson RO, denied service connection for diabetes and glaucoma. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. See 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). Service connection may also 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 may also be granted for a disorder found to be proximately due to, or the result of, a service- connected disability, including on the basis of aggravation. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as diabetes, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Regulations also provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, and has a disease listed at § 3.309(e) shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. §§ 3.307(a)(6), 3.313 (2007). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 U.S.C.A. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, chronic lymphocytic leukemia (CLL), multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda (PCT), prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), certain soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), and Type II diabetes mellitus. 38 C.F.R. § 3.309(e) (2007); see also 68 Fed. Reg. 59,540-42 (Oct. 16, 2003). The record reflects that the veteran served in the Republic of Vietnam in 1967. The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143- 44 (1992). Service Connection for Diabetes Mellitus The veteran contends that he has diabetes mellitus that is related to exposure to herbicides during his active duty service in Vietnam. At the CO hearing, the veteran stated that a VA physician had diagnosed him with diabetes about two months before that hearing. Because the veteran served in the Republic of Vietnam during service, he is presumed to have been exposed to herbicides. On the question of current disability of diabetes mellitus, there is both unfavorable and favorable competent medical evidence. The evidence weighing against the veteran's claim includes a January 2003 VA physician's review of the record, including glucose readings within the normal range, and the conclusion that he found no justification to support a diagnosis of diabetes. The evidence in support of the veteran's claim includes various notations in the VA treatment records that the veteran had been diagnosed with non-insulin-dependent diabetes mellitus, including evidence that he has been prescribed lancets and glucose test strips. The April 2007 VA examination report, which reflects a history of diabetes mellitus and review of the extensive claims file, resulted in a current diagnosis of diabetes mellitus (diet controlled, no medications required). After reviewing the evidence of record, the Board finds that the weight of the competent evidence is in relative equipoise on the question of whether the veteran has a currently diagnosed disability of diabetes mellitus. Resolving reasonable doubt in the veteran's favor, the Board finds that the veteran currently has diabetes mellitus, and that the criteria for service connection for diabetes mellitus as due to exposure to herbicides have been met. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102. Service Connection for Glaucoma At the February 2005 CO hearing, the veteran contended that that his glaucoma should be service connected on a direct basis as due to in-service exposure to herbicides (Agent Orange) or as secondary to his (now service-connected) diabetes mellitus. The April 2007 VA examination report reflects a review of the extensive claims file, a history and diagnosis of diabetes mellitus, and a current diagnosis of open angle glaucoma. The VA examiner noted that there were no records to indicate that the veteran's currently diagnosed open angle glaucoma was related to any incident in active service. The VA examiner also offered the opinions that it was unlikely ("not as likely as not") that the veteran's currently diagnosed glaucoma was secondary to service-connected sickle cell anemia or service-connected diabetes. The bases for the opinion included that there was no retinopathy in either eye, including no diabetic retinopathy. After reviewing the evidence of record, the Board finds that the weight of the competent evidence demonstrates that the veteran's currently diagnosed glaucoma is not caused or aggravated by service, including exposure to herbicides in service, and is not caused or aggravated by a service- connected disability, including diabetes mellitus and sickle cell disease. For these reasons, the Board finds that a preponderance of the evidence is against the veteran's claim for service connection for glaucoma, as both directly incurred in service, and as secondary to a service-connected disability, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Earlier Effective Date for Service Connection for Sickle Cell Anemia In this case, the veteran contends that the effective date for service connection for sickle cell disease should be granted to the first day after service separation in 1970. The veteran contends that he is entitled to an effective date prior to June 5, 1984, for the grant of service connection for sickle cell disease. He argues that he never closed his file and that he has never stopped writing or given up on his case for service connection since submission of his initial claim in 1970. The veteran claims that earlier rating decisions, which denied service connection for sickle anemia, and the February 1985 rating decision that awarded service connection, contain CUE in not granting service connection for sickle cell disease effective date back to service discharge. Pursuant to 38 C.F.R. § 3.104(a) (2007), "[a] decision of a duly constituted rating agency . . . shall be final and binding . . . based on evidence on file at the time and shall not be subject to revision on the same factual basis." See also 38 U.S.C.A. § 5108. An exception to this rule is when VA has made a clear and unmistakable error (CUE) in its decision pursuant to 38 C.F.R. § 3.105. The award of benefits based on a finding of error in a prior decision under 38 C.F.R. § 3.105 is the date from which benefits would have been payable if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.400(k) (2007). Further, unless specifically provided otherwise, the effective date of an award of compensation based on a claim, which has been reopened after final adjudication, shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(1)(ii), (r). Unless otherwise specified, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase is to be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. In cases involving new and material evidence, where the evidence is received after the final disallowance, the effective date is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(1)(ii). A VA examination report will be accepted as an informal claim for benefits once a formal claim for pension or compensation has been allowed or a formal claim for compensation is disallowed for the reason that the service-connected disability is not compensable in degree. 38 C.F.R. § 3.157(b) and (b)(1). The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The date of a uniformed service examination which is the basis for granting severance pay to a former member of the Armed Forces on the temporary disability retired list will be accepted as the date of receipt of claim. The date of admission to a non-VA hospital where a veteran was maintained at VA expense will be accepted as the date of receipt of a claim, if VA maintenance was previously authorized, but if VA maintenance was authorized subsequent to admission, the date VA received notice of admission will be accepted. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. 38 C.F.R. § 3.157(b). Similarly, the date of receipt of evidence from a private physician or layman will be accepted when the evidence furnished by or on behalf of the claimant is within the competence of the physician or lay person and shows the reasonable probability of entitlement to benefits. Moreover, when authenticated evidence from state and other institutions is submitted by or on behalf of the veteran and entitlement is shown, date of receipt by the VA of examination reports, clinical records, and transcripts of records will be accepted as the date of receipt of a claim if received from State, county, municipal, recognized private institutions, or other Government hospitals. Benefits will be granted if the records are adequate for rating purposes; otherwise findings will be verified by official examination. 38 C.F.R. § 3.157. In this case, a February 1980 Board decision denied service connection for sickle cell anemia. A September 1983 Board decision denied reopening the veteran's claim for service connection for sickle cell disease. The September 1983 Board decision denial of reopening of claim for service connection for sickle cell disease was final when it was issued. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. An October 1999 Board decision denied motions for CUE under the provisions of 38 U.S.C.A. § 7111 in Board decisions in 1980 and 1983. Following the Board's September 1983 decision, the veteran was admitted to a VA hospital on October 18, 1983 and discharged six days later. During this hospitalization, tests were performed to determine whether the veteran actually had hemoglobin SC disease (HbSC) or hemoglobin SOArab (HbSOArab). While sickle cell trait is not considered a disease, in this veteran's case, the tests determined that the veteran had HbSC, or sickle cell disease. In a VA Form 1-9 received on April 16, 1984, the veteran contended that his sickle cell disease had its onset during military service and had progressed during service and after separation from service to a degree of total disability and asked for an RO hearing to present his claim. In a letter dated April 26, 1984, the St. Petersburg RO informed the veteran that he had to submit new and material evidence to reopen his previously denied claim for service connection. In a VA Form 21-4138 dated May 22, 1984, and received on June 5, 1984, the veteran asked that his submission be considered a notice of disagreement (NOD) with the April 1984 RO letter, the St. Petersburg RO construed this submission as a claim to reopen. In a June 1984 rating decision issued in July 1984, the St. Petersburg RO informed the veteran that his May 1984 submission was not accepted as an NOD as his only claim was for an increase in his service-connected disabilities and indicated that the treatment records from October 1980 to October 1982, showing that the veteran had sickle cell disease, warranted no change in the previous denial of service connection for that disease. Following a July 1984 informal hearing conference, service connection for sickle cell anemia was again denied due to no new and material evidence being presented, noting that the veteran had a milder disease than sickle cell disease, in an August 1984 rating decision. The same month the veteran submitted an NOD to that decision and he perfected his appeal in October 1984. In February 1985, the veteran testified at an RO hearing, arguing that he believed that, while he had the sickle cell trait prior to induction, the stress of, and exposure to, combat conditions, precipitated an active sickle cell crisis, for which he received extensive treatment in service. After service, he stated that he had received constant and ongoing medical treatment for sickle cell conditions beginning shortly after discharge and continuing to the present. The veteran also furnished VA treatment records for January 1985. He maintained that the evidence of record rebuts the previous finding that his in-service attack was an acute and transitory one unrelated to the chronic condition, which had been held to have begun about five years after service discharge. In a February 1985 rating decision, the St. Petersburg RO granted service connection for sickle cell anemia and assigned an initial 30 percent disability rating (pending the results of an examination), effective from June 5, 1984, the date of receipt of the formal reopened claim. Notice of the February 1985 decision was issued on March 20, 1985. The veteran did not enter a notice of disagreement with this decision within one year of issuance of notice of the decision. Consequently, the February 1985 rating decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. In the February 1985 decision, the RO noted that a review of the entire medical history supported the veteran's contention that chronicity for sickle cell disease had been established and that, although the condition was quiescent at discharge, there was documented evidence of activity in 1967, 1969, 1970, 1971, and 1972, with constant treatment from that point onward. The St. Petersburg RO concluded that military service clearly precipitated or exacerbated the veteran's chronic condition beyond the course of normal progression, referring to Section 0-9 of the VA Program Guide 21-1. Following a March 1985 VA examination, a 100 percent rating was retroactively assigned back to June 5, 1984, mainly based on the veteran's physician's opinion that the veteran had begun suffering several crises a month and was totally unable to work, requiring frequent hospitalizations with emergency medical care. In a VA Form 21-4138 dated November 16, 1992 and received January 13, 1993, the veteran contended that he was entitled to retroactive compensation for sickle cell anemia either to December 22, 1970, first evaluation following discharge, or from September 1978, due to CUE. In a March 1993 rating decision issued in April 1993, the St. Petersburg RO found that a review of the evidence of record as well as the law and regulations in effect at the time of the February 1980 Board decision did not support that CUE existed in the December 1970 and April 1978 RO denials nor in the February 1980 Board decision. In a VA Form 21-4138 dated April 19, 1993 NOD, the veteran maintained that the denial of an earlier retroactive date for compensation for sickle cell anemia was due to CUE; that the previous denials were due to oversight and/or misinterpretations of records that have proved that his sickle cell condition did manifest as a disease prior to his discharge; and that the same records upon which service connection was granted finally were in the record at the prior dates of denial and thus all past denials were erroneous and/or contained CUE. The veteran perfected his appeal as to the issue of an earlier effective date due to CUE, in October 1993. In a December 1993 letter, the veteran again requested retroactive payment for sickle cell anemia back to 1967, when he was first diagnosed with the disease, or alternatively from 1970, when he first applied for service connection. In a March 1994 letter, the veteran requested retroactive payment for sickle cell anemia from 1970 to 1984. In a letter dated in April 1994, the veteran requested an earlier effective date for service connection for sickle cell anemia, alleging that his claim had remained open from 1970 to 1980. At a December 1995 RO hearing, the veteran maintained that he should be paid back to 1970, when he was discharged from the service, because VA failed to service connect him for sickle cell anemia based on the fact that VA said that he had the sickle cell trait, which was not compensable. In an August 1996 rating decision, the St. Petersburg RO indicated that, because the Board had affirmed the earlier RO denials of service connection for sickle cell anemia in 1980 and 1983 Board decisions, the Board must address the veteran's CUE claim. At an August 1998 CO hearing, it was clear that the veteran's claim for an earlier effective date for service connection for sickle cell anemia was predicated upon allegations of CUE in the 1980 and 1983 Board decisions. The veteran testified that he had no pre-service problems or symptoms of sickle cell anemia but first developed symptoms, including a full- blown sickle cell crisis, during active military service; and that he was treated in service for the active sickle cell disease and not the latent sickle cell trait, and was so informed of this by an in-service physician. The veteran testified that he had continued to have active symptoms of sickle cell anemia, including sickle cell crises, following military service. He testified that he had first discovered that he had sickle cell anemia, and its trait, when he was hospitalized during service for a left leg fracture with resultant osteomyelitis. He contended that sickle cell disease, not merely the sickle cell trait, was diagnosed during active service, and that he was discharged from active service due to sickle cell disease. The veteran testified that he had sickle cell crises during the first year after military service for which he was treated at a VA Medical Center (VAMC) in Biloxi, Mississippi, and first filed a claim for sickle cell anemia in 1970, within the first year after service. The veteran testified that he had "S C hemoglobin" which causes the same manifestations of a person with full blown sickle cell anemia with painful crises. The veteran felt that the proper effective date for service connection for sickle cell anemia was the day following discharge from active service. He also testified that he had received Social Security disability benefits during military service in 1968 for sickle cell anemia as a disease because of his hospitalization in Valley Forge for 14 months and under the law in the State of Pennsylvania he therefore qualified for Social Security benefits. Thereafter, the veteran had again qualified for receipt of Social Security disability benefits in 1977 and has received Social Security disability benefits since then. In an October 1999 decision, the Board determined that neither the Board's February 1980 nor the September 1983 decision contained CUE. In that decision, the Board observed that it was not claimed by the veteran nor shown by the evidence that the factual record before the Board in either February 1980 or September 1983 was incomplete or incorrect. In those decisions, the Board concluded that sickle cell anemia did not become an active disease until about five years after discharge from service and, thus, bore no relationship to the veteran's military service by means of incurrence as an active disease during service, aggravation during service or as having first manifested as an active disease within the first post-service year. To the extent that the veteran alleged that certain clinical findings during service had greater clinical value or importance than others with respect to whether sickle cell anemia was an active disease, the Board found that this amounted to no more than an allegation that the evidence was not properly weighed, which cannot be CUE. The veteran did not appeal this Board decision to the Court, and thus it was final when it was issued. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. In letters dated in October 2001 and January 2002, the veteran indicated that the Board's October 1999 and September 2001 decisions did not address the issue of entitlement to an earlier effective date for sickle cell anemia and he maintained that he was entitled to retroactive benefits. In a VA Form 21-4238 dated March 31, 2003 and received in April 2003, the veteran stated that he wanted to reapply for retroactive disability for sickle cell disease back to 1970. The Jackson RO construed this statement as a claim for an effective date earlier than June 5, 1984 for a 100 percent rating for sickle cell anemia. But, since June 5, 1984, was the effective date of service connection, this submission was a claim for an earlier effective date for service connection, which was still on appeal. In a September 2003 rating decision, the subject of this appeal, the Jackson RO referred the veteran back to the October 1999 Board decision, claiming that decision found that an earlier effective date was not warranted. In a December 2003 statement and two other statements, a VA doctor of hematology, G. R., M.D., reported that the veteran's hemoglobinopathy was first detected in 1967, when he was in service; that the veteran has multiple complications of sickle cell disease, including osteomyelitis with deformity of the tibia and chronic pain; that the veteran is hospitalized several times a year with painful crisis; and that he is on hydroxyurea to try to decrease the frequency of painful crisis necessitating hospitalization. In the September 2003 rating decision on appeal, VA denied an earlier effective date for sickle cell anemia. In December 2005, the Board remanded this issue for consideration of the related question of CUE in rating decisions in June 1984, August 1984, and February 1985. A December 2007 supplemental statement of the case adjudicated the related question of whether there was CUE in prior rating decisions in June 1984, August 1984, and February 1985. This issue was returned to the Board. After a review of the evidence, the Board finds that the September 29, 1983 Board decision denial of reopening of service connection for sickle cell disease was final when issued. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. An October 1999 Board decision found no CUE in the February 1980 and September 1983 Board decisions under the provisions of 38 U.S.C.A. § 7111 (West 2002). Likewise, the October 1999 Board decision was a final decision when issued. Because of finality of the September 1983 Board decision, any effective date for the award of service connection for sickle cell disease must be after September 29, 1983. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. The Board finds that the veteran's informal claim to reopen service connection for sickle cell disease was received by VA on October 18, 1983, although his formal claim to reopen service connection for sickle cell anemia was not received by VA until June 5, 1984. See 38 C.F.R. § 3.157. The clinical findings and diagnoses in this October 18, 1983 VA hospitalization report also show that entitlement to service connection arose on this date. Tests performed during the October 1983 VA hospitalization show that the veteran actually had hemoglobin SC disease (HbSC) , or sickle cell disease. For this reason, the Board finds that the February 1985 rating decision assignment of an effective date of June 5, 1984 for the grant service connection for sickle cell anemia, the date of receipt of the veteran's formal claim, rather than the date of receipt of the October 18, 1983 informal clam to reopen (VA hospitalization report), was clearly and unmistakably erroneous. But for the CUE in the February 1985 rating decision assignment of effective date for service connection, the effective date for the grant of service connection for sickle cell disease would have been October 18, 1983. Because the veteran appealed the June and August 1984 rating decisions, so they never became prior final rating decisions, there is no remaining question of CUE in the June and August 1984 rating decisions. Because of the finality of the September 1983 Board decision, the proper effective date for service connection is October 18, 1983, and cannot be earlier than the September 1983 Board decision. Moreover, the current finding of CUE in the February 1985 rating decision assignment of effective date for service connection to October 18, 1983 moots any allegations of CUE in June and August 1984 rating decisions. Based on CUE in a February 1985 rating decision assignment of effective date, the Board finds that the criteria for an earlier effective of October 18, 1983, the date of receipt of informal claim to reopen, for the grant of service connection for sickle cell disease have been met. 38 U.S.C.A. § 5110; 38 C.F.R. §§ 3.400, 20.1100. New and Material Evidence to Reopen Service Connection Claims In a December 1970 rating decision, the Jackson RO denied service connection for keratosis pilaris as not shown on VA examination in August 1970. In a March 1983 rating decision, the St. Petersburg RO denied service connection for tinea cruris of the feet and groin region, noting that no chronic skin disorder had been shown prior to 1976. In a September 1983 decision, the Board denied service connection for a skin disorder (keratosis pilaris). In a December 1991 rating decision, the St. Petersburg RO denied service connection for chloracne because there was no evidence showing that the veteran had been diagnosed with chloracne. At a May 1992 RO hearing, the veteran withdrew his appeal on the issue of service connection for chloracne. In a March 1994 rating decision issued in April 1994, the St. Petersburg RO denied service connection for chloracne (no diagnosis), scar tissue in the throat (no nexus), and a skin rash (no nexus), each claimed as due to herbicide (Agent Orange) exposure in service. In an August 1995 rating decision, the St. Petersburg RO confirmed its denial of service connection for scar tissue in the throat as due to herbicide (Agent Orange) exposure in service. At a December 1995 RO hearing, the veteran withdrew his appeal with regard to service connection for scar tissue in the throat secondary to Agent Orange exposure. In a January 2003 statement received in February 2003, the veteran requested service connection for chloracne, along with rash and scar tissue in the throat, as due to herbicide (Agent Orange) exposure in service. In the September 2003 rating decision on appeal, the Jackson RO determined that new and material evidence had not been received to reopen previously denied claims for service connection for chloracne, skin rash, and scar tissue in the throat, as due to herbicide (Agent Orange) exposure in service The Board has a legal duty to address the "new and material evidence" requirement regardless of the actions of the RO. If the Board finds that no new and material evidence has been submitted, it is bound by a statutory mandate not to consider the merits of the case. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd 83 F.3d 1380 (Fed. Cir. 1996); see also McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The law provides that a claimant may reopen a previously final adjudicated claim by submitting new and material evidence. 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the U.S. Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it would not be enough to convince the Board to grant the claim. In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). If new and material evidence is presented or secured with respect to a claim that has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. See 38 U.S.C.A. § 5108. Chloracne (Herbicide Exposure) In this case, a December 1991 rating decision denied service connection for chloracne, finding that there was no evidence of current diagnosis of chloracne; the veteran perfected an appeal, but at a May 1992 RO hearing withdrew his appeal for service connection for chloracne. Because the veteran withdrew his appeal, the December 1991 rating decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 20.204, 20.1103. The evidence of record at the time of the December 1991 rating decision included service medical record evidence of acute keratoses pilaris, but no diagnosis of chloracne; post- service evidence (October 1991 VA examination report) included diagnoses of tinea cruris, tinea pedis with onychomycosis of the toenails, seborrheic dermatitis, and scars of the left leg, with no post-service medical evidence, including diagnosis, of chloracne. The additional evidence received since the December 1991 final rating decision includes VA outpatient treatment records that show treatment for reported history of skin irritation since 1967, rashes and bumps on the arm; a March 1993 VA examination report that did not diagnose chloracne; and VA treatment entries that reflect a current diagnosis of chloracne or other acneform disease consistent with chloracne. For example, a May 2004 VA treatment entry reflects a history of pruritic eruption since service in Vietnam, treatment for acneiform eruptions of the back, legs, and scalp; clinical findings of hyperpigmented papules; and assessment of possible chloracne and pruritis. A June 2004 VA treatment entry notes chloracne all over the body, and reflects a diagnosis of chronic dermatitis-chloracne. A November 2004 VA treatment entry reflects an assessment of chronic dermatitis - chloracne, and indicated the need for follow up by a dermatologist. A January 2006 clinical finding included diffuse scars from ulcerations. After a review of all the evidence of record, lay and medical, whether or not specifically mentioned in this decision, the Board finds that the evidence associated with the claims file subsequent to the December 1991 rating decision denial of service connection for chloracne, when considered with previous evidence of record, relates to an unestablished fact of diagnosis of current disability of chloracne that is necessary to substantiate the veteran's claim for service connection for chloracne as due to herbicide exposure, and raises a reasonable possibility of substantiating the claim for service connection for chloracne. For these reasons, the Board finds that the evidence associated with the claims file subsequent to the December 1991 rating decision is new and material, and service connection for chloracne is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Turning to the merits of the claim, because the veteran served in the Republic of Vietnam during service, he is presumed to have been exposed to herbicides during service. On the question of current disability of chloracne, the VA treatment records referenced above show multiple treatment entries of possible chloracne or chloracne. The Board finds that the weight of the competent evidence is in relative equipoise on the question of whether the veteran has a currently diagnosed disability of chloracne or other acneform disease consistent with chloracne. On this question, the Board notes that the presumptive regulation at 38 C.F.R. § 3.309(e) provides that service connection may be presumed for "chloracne or other acneform disease consistent with chloracne." Resolving reasonable doubt in the veteran's favor, the Board finds that the veteran currently has chloracne or other acneform disease consistent with chloracne, and that the criteria for service connection for chloracne as due to exposure to herbicides have been met. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102. Scar Tissue in the Throat (Herbicide Exposure) A March 1994 rating decision denied service connection for scar tissue in the throat as due to exposure to herbicides, finding that the competent medical evidence did not relate the scar tissue to service, including exposure to herbicides in service; the veteran entered a notice of disagreement with this decision in April 1994; and the veteran subsequently withdrew his appeal of this issue. Because the veteran withdrew his appeal, the March 1994 rating decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 20.204, 20.1103. The evidence of record at the time of the March 1994 rating decision included no scientific or competent medical evidence to relate scar tissue of the throat to service, including exposure to herbicides in service. After a review of all the evidence of record, lay and medical, whether or not specifically mentioned in this decision, the Board finds that the evidence associated with the claims file subsequent to the March 1994 rating decision denial of service connection for scar tissue of the throat, when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the veteran's claim for service connection for scar tissue of the throat, and does not raise a reasonable possibility of substantiating the claim. The additional evidence still does not include competent medical evidence that tends to relate scar tissue of the throat to service, including herbicide exposure in service; therefore, the additional evidence does not relate to an unestablished fact that is necessary to substantiate the veteran's claim for service connection for scar tissue of the throat. For these reasons, the Board finds that the evidence associated with the claims file subsequent to the March 1994 rating decision is not new and material, and a previously denied claim for service connection for scar tissue of the throat is not reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Skin Rash (Herbicide Exposure) A September 1983 Board decision denied service connection for a skin disorder (keratoses pilaris), finding that keratoses pilaris was not chronic in service, and that the competent medical evidence did not relate the current skin disorder of tinea cruris to service, including to acute keratoses pilaris in service. The September 1983 Board decision that denied service connection for a skin rash was final when issued. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. The evidence of record at the time of the September 1983 Board decision included service medical record evidence of acute keratoses pilaris not found at service separation; post-service evidence (October 1991 VA examination report) of tinea cruris, tinea pedis with onychomycosis of the toenails, seborrheic dermatitis, and scars of the left leg; private treatment and hospitalization records in 1981 and 1982 that were negative for evidence of skin disease; and a January 1983 VA treatment entry reflecting diagnosis of tinea cruris and tinea pedis. The additional evidence received since the September 1983 Board decision includes VA outpatient treatment records that include a diagnosis of nonspecific generalized dermatosis; an October 1993 VA examination report that reflects a history and complaints of chronic skin rash, and findings of scaly rash and lesions, but no current diagnosis of skin disability (other than chloracne); and the veteran's personal hearing testimony that he was being treated for fungal infection that manifested itching and rashes, which had been diagnosed as folliculitis and was treated with salves. After a review of all the evidence of record, lay and medical, whether or not specifically mentioned in this decision, the Board finds that the evidence associated with the claims file subsequent to the September 1983 Board decision denial of service connection for skin rash, when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the veteran's claim for service connection for skin rash, including as due to herbicide exposure, and does not raise a reasonable possibility of substantiating the claim. The additional evidence does not include competent medical evidence that tends to relate a currently diagnosed skin rash (other than chloracne, for which service connection has been granted) to service, including herbicide exposure in service. The competent medical evidence does not relate diagnosed tinea to service. For these reasons, the Board finds that the additional evidence does not relate to an unestablished fact of nexus to service that is necessary to substantiate the veteran's claim for service connection for skin rash. In this regard, the Board notes that the veteran's histories and complaints of symptoms since service have included various symptoms pertaining to skin disorders. None of the findings or symptoms of diagnosed chloracne may be considered in determining whether new and material evidence has been received to reopen service connection for other (non- chloracne) skin rash. See 38 C.F.R. § 4.14 (2007) (the evaluation of the same manifestation under different diagnoses are to be avoided). For these reasons, the Board finds that the evidence associated with the claims file subsequent to the September 1983 Board decision is not new and material, and a previously denied claim for service connection for skin rash, including as due to herbicide exposure, is not reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). ORDER Service connection for diabetes mellitus, as due to exposure to herbicides, is granted. Service connection for glaucoma, including as due to herbicides in service and as secondary to service-connected diabetes mellitus, is denied. An earlier effective date of October 18, 1983 for the grant of service connection for sickle cell anemia is granted. New and material evidence having been received, service connection for chloracne as due to exposure to herbicides is reopened, and service connection is granted on the merits. New and material evidence has not been received, and a claim for service connection for scar tissue in the throat claimed as due to exposure to herbicides is not reopened. New and material evidence has not been received, and a claim for service connection for skin rash claimed as due to exposure to herbicides is not reopened. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs