Citation Nr: 0815017	
Decision Date: 05/06/08    Archive Date: 05/12/08

DOCKET NO.  04-28 197	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Wichita, 
Kansas


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus.  

2.  Whether new and material evidence has been submitted to 
reopen a claim for service connection for a chronic skin 
disorder, claimed as tinea pedis and jungle rot.   


REPRESENTATION

Appellant represented by:	Thomas Odell Rost


WITNESSES AT HEARING ON APPEAL

The veteran and R. S. 




ATTORNEY FOR THE BOARD

R. Giannecchini, Counsel


INTRODUCTION

The veteran had active military service from May 1966 to May 
1969.  

These matters come to the Board of Veterans' Appeals (Board) 
on appeal from a December 2003 rating decisions of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Wichita, Kansas.  In September 2006, the veteran testified at 
a hearing before the undersigned Veterans Law Judge sitting 
at the Wichita RO.

Initially, the veteran was represented by Disabled American 
Veterans.  In a May 2003 letter submitted to the RO, the 
veteran appointed a private attorney as his representative 
before VA in this appeal.  

In January 2007, the Board granted the veteran's claim of 
service connection for post-traumatic stress disorder (PTSD) 
and remanded claims of service connection for diabetes 
mellitus and for a skin disorder.  In October 2007, the 
veteran, through his representative, filed with the RO a 
motion for reconsideration of the Board's January 2007 
decision and remand.  The motion was denied, but in the 
motion, the veteran's representative noted that he was, " . 
. . . not representing himself as an attorney at law as he 
has previously notified the record, that he has retired his 
license as of October 1, 2005."  Because the veteran has 
made no change with respect to representation, the Board will 
continue to recognize a power-of-attorney with the veteran's 
current representative for purposes of this appeal under 38 
C.F.R. § 20.605 (2007) (Other persons as representative).

(The decision below addresses the veteran's petition to 
reopen his claim for service connection for a chronic skin 
disorder, claimed as tinea pedis and jungle rot.  
Consideration of the claim for service connection for a 
chronic skin disorder, claimed as tinea pedis and jungle rot, 
on the merits; as well as the claim for service connection 
for diabetes mellitus is deferred pending completion of the 
development sought in the remand that follows the decision.)


FINDINGS OF FACT

1. In an April 2002 rating decision, the RO denied the 
veteran's claim for service connection for tinea pedis 
claimed as jungle rot.  Although notified of the denial the 
same month, the veteran did not appeal the denial of his 
claim.  

2.  The additional evidence associated with the claims file 
since the April 2002 rating decision does, by itself or 
considered with previous evidence of record, relate to an 
unestablished fact necessary to substantiate the claim.


CONCLUSIONS OF LAW

1.  An April 2002 RO decision that denied the veteran's claim 
for service connection for tinea pedis is final.  38 U.S.C.A. 
§ 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2007).

2.  Since the April 2002 RO decision, new and material 
evidence has been received; hence, the requirements to reopen 
the claim of service connection for a skin disorder, claimed 
as tinea pedis and jungle rot, are met.  38 U.S.C.A. § 5108 
(West 2002); 38 C.F.R. § 3.156 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

As indicated above, in the April 2002 rating decision, the RO 
denied the veteran's claim for service connection for tinea 
pedis, claimed as jungle rot.  The veteran was notified of 
the decision the same month, but did not file an appeal.  
Thus, the rating decision of April 2002 is final based on the 
evidence then of record.  38 U.S.C.A. § 7105; 38 C.F.R. 
§§ 20.302, 20.1103.  The RO considered the issue again, sua 
sponte, in a December 2003 decision.  

Under pertinent legal authority, VA may reopen and review a 
claim, which has been previously denied if new and material 
evidence is submitted by or on behalf of the veteran.  38 
U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. 
West, 155 F.3d 1356 (Fed. Cir. 1998).  

Regarding petitions to reopen filed on or after August 29, 
2001, Title 38 Code of Federal Regulations, Section 3.156(a) 
defines "new" evidence as evidence not previously submitted 
to agency decision makers and "material" evidence as 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 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).

(During the pendency of the veteran's appeal VA revised 
38 C.F.R. § 3.156.  See 71 Fed. Reg. 52,455-52,457 (Sept. 6, 
2006).  The amended regulation became effective October 6, 
2006.  The Board notes that none of the revisions to the 
regulation, which relate to receipt of additional service 
department records, affects the veteran's pending claim.)  

In determining whether new and material evidence has been 
received, VA must initially decide whether evidence 
associated with the claims file since the prior final denial 
is, in fact, new.  This analysis is undertaken by comparing 
newly received evidence with the evidence previously of 
record.  After evidence is determined to be new, the next 
question is whether it is material.  

The provisions of 38 U.S.C.A. § 5108 require a review of all 
evidence submitted by or on behalf of a claimant since the 
last final denial on any basis to determine whether a claim 
must be reopened.  See Evans v. Brown, 9 Vet. App. 273, 282-3 
(1996).  Here, as indicated above, the final denial pertinent 
to the claim was the April 2002 RO decision.  Furthermore, 
for purposes of the "new and material" analysis, the 
credibility of the evidence is presumed.  Justus v. Principi, 
3 Vet. App. 510, 512-513 (1992).  

In the April 2002 rating decision, the RO denied the 
veteran's claim for service connection for tinea pedis and 
jungle rot on the basis that the veteran's service medical 
records did not reflect any treatment for a skin disorder.  
In addition, the RO noted that on VA examination in July 2001 
an examiner had only found that the veteran's skin disorder 
was likely long standing.  In this regard, the medical 
evidence of record at the time of the April 2002 rating 
decision included service medical records, VA treatment 
records, the above-noted report of July 2001 VA examination, 
as well as the veteran's Social Security Administration (SSA) 
records.  Evidence received since the April 2002 rating 
decision includes additional VA treatment records.  

The Board notes that the veteran has contended that he 
developed "jungle rot" of his feet while serving in Vietnam 
and has continued to suffer with the disorder since service.  
The veteran is competent to provide testimony concerning 
factual matters of which he had first hand knowledge:  
experiencing skin problems associated with his feet in 
service and thereafter.  See e.g., Barr v. Nicholson, 21 Vet. 
App. 303, 307-08 (the Board may not reject as not credible 
any uncorroborated statements merely because the 
contemporaneous medical evidence is silent as to complaints 
or treatment for the relevant condition or symptoms); 
Washington v. Nicholson, 19 Vet. App. 362 (2005).  The 
veteran is not competent to provide, however, a diagnosis or 
etiology regarding any current skin disorder.  Furthermore, 
although the lack of contemporaneous medical records may be a 
fact that the Board can consider and weigh against a 
veteran's lay evidence, the lack of such records does not, in 
and of itself, render the lay evidence not credible.  
Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  

Here, the evidence submitted since the April 2002 final 
decision includes a Mental Health Physician's Note dated in 
April 2007.  In that note, a VA psychiatrist discussed the 
veteran's psychiatric symptomatology.  His diagnosis included 
"Axis III-Dermatophytosis from Vietnam."  The Board finds 
that the aforementioned April 2007 Mental Health Physician's 
Note provides a basis for reopening the claim for service 
connection for a skin disorder, claimed as tinea pedis and 
jungle rot.  At the time of the April 2002 rating decision, 
as noted above, the RO's basis for denying the veteran's 
claim included the lack of any medical nexus between the 
veteran's skin disorder and service.  Thus, the April 2002 
Mental Health Physician's Note is new in that it had not 
previously been before agency decision makers, and is not 
cumulative or duplicative of evidence previously considered.  
Furthermore, the evidence is material in that a VA doctor 
(psychiatrist) has related the veteran's skin disorder of the 
feet to service, which tends to support the veteran's claim 
in a manner not entirely shown before.  

Therefore, the Board finds that the aforementioned April 2007 
Mental Health Physician's Note constitutes evidence which, by 
itself or when considered with previous evidence of record, 
relates to an unestablished fact necessary to substantiate 
the claim.  In this respect, the medical evidence identifies 
that the veteran has dermatophytosis, a skin disorder, which 
is the result of his service in Vietnam, and, thus, raises a 
reasonable possibility of substantiating the veteran's claim 
for service connection for a skin disorder, namely tinea 
pedis claimed as jungle rot.  

Under these circumstances, the Board concludes that the 
criteria for reopening the claim for service connection for a 
skin disorder, claimed as tinea pedis and jungle rot, have 
been met.  See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.  

ORDER

New and material evidence to reopen the claim of service 
connection for a skin disorder, claimed as tinea pedis and 
jungle rot, has been received; to this limited extent, the 
appeal is granted.  


REMAND

In light of the Board's conclusion that the claim for service 
connection for a skin disorder, claimed as tinea pedis and 
jungle rot, is reopened, the claim must be considered on a de 
novo basis.  Furthermore, the Board finds that additional 
development is necessary with respect to this claim on the 
merits, as well as the claim for service connection for 
diabetes mellitus.  

In this case, the Board is aware that the VA psychiatrist in 
April 2007 provided no reasoning and/or explanation for his 
opinion that the veteran's dermatophytosis was related to 
Vietnam service.  See Bloom v. West, 12 Vet. App. 185, 187 
(1999) (The value of a physician's statement is dependent, in 
part, upon the extent to which it reflects "clinical data or 
other rationale to support his opinion.").  In fact, it is 
not clear whether the clinician's statement is merely a 
recitation of a comment made by the veteran.  The Board 
notes, however, that it may not disregard a medical opinion 
solely on the rationale that the medical opinion was based on 
a history given by the appellant, but instead must evaluate 
the credibility and weight of the history upon which the 
medical opinion is predicated.  See Coburn v. Nicholson, 19 
Vet. App. 427 (2006); Kowalski v. Nicholson, 19 Vet. App. 171 
(2005).  

Additionally, while the veteran was provided a VA examination 
in July 2001 to evaluate his skin disorder, the examiner, 
while noting that the veteran's skin disorder was chronic and 
had been ongoing for a number of years, did not otherwise 
provide an opinion regarding the relationship between the 
skin disorder and the veteran's period of service.  The 
United States Court of Appeals for Veterans Claims has held 
that once VA undertakes the effort to provide an examination 
when developing a claim for service connection, even if not 
statutorily obligated to do so, it must provide an adequate 
one.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 464 
(2007), citing Barr, 21 Vet. App. at 311; see also Bowling v. 
Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's 
duty to return an inadequate examination report "if further 
evidence or clarification of the evidence . . . is essential 
for a proper appellate decision").

As for the claim for service connection for diabetes 
mellitus, the Board notes that the veteran served in Vietnam 
and is presumed to have been exposed to Agent Orange.  Under 
38 C.F.R. § 3.309 (2007) for disease associated with exposure 
to Agent Orange, Type 2 diabetes (also known as Type II 
diabetes mellitus or adult-onset diabetes) is a listed 
presumptive disease.  A review of the above-noted April 2007 
Mental Health Physician's Note reflects an Axis III diagnosis 
of "Possible diabetes."  Otherwise, a review of the 
evidence prior to August 2007 reflects no diagnosis for 
diabetes or laboratory findings demonstrating above normal 
blood glucose levels.  However, laboratory reports dated in 
August 2007 reveal a blood glucose level of 148 (reflective 
of a provisional diagnosis for diabetes) with a subsequent 
blood glucose level of 118 (reflective of impaired fasting 
glucose (IFG)).  Medical literature suggests that a person 
with IFG has a high risk of developing diabetes.  While it 
would be reasonable to assume that the drop in the veteran's 
blood glucose level from 148 to 118 in two days (as is the 
case here) demonstrates that the veteran does not have 
diabetes mellitus, such a finding by the Board is an 
impermissible medical determination.  See Colvin v. 
Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is 
prohibited from exercising its own independent judgment to 
resolve medical questions).

The Board notes that action should be undertaken by way of 
obtaining additional medical opinion if the information and 
evidence of record does not contain sufficient competent 
medical evidence to decide the claim, but contains:  
1) competent evidence of diagnosed disability or symptoms of 
disability, 2) establishes that the veteran suffered an 
event, injury or disease in service, or has a presumptive 
disease during the pertinent presumptive period (competent 
lay evidence may establish this prong), and 3) indicates that 
the claimed disability may be associated with the in-service 
event, injury, or disease.  38 C.F.R. § 3.159(c)(4) (2007).  

Here, the Board finds there is sufficient evidence to warrant 
remand of the veteran's claims on appeal for medical 
examinations.  In light of the veteran's statements regarding 
his skin disorder associated with his feet, which he is 
competent to make, as well as the April 2007 medical 
diagnosis of "dermatophytosis from Vietnam", the Board 
finds that the veteran should be afforded a VA dermatological 
examination.  Likewise, in light of April 2007 diagnosis of 
"Possible diabetes" along with the August 2007 blood 
glucose levels (one of which reflected a suggestion of 
diabetes), the veteran should be afforded an examination by 
an appropriate VA physician to determine whether he does in 
fact have diabetes mellitus.  The examinations should also 
include well reasoned medical opinions addressing the nature 
and etiology of any identified skin disorder or diabetes, 
which is based upon consideration of the veteran's documented 
history and assertions through review of the claims file.  
38 U.S.C.A. § 5103A (West 2002).  

(The veteran is herein advised that failure to report to any 
scheduled examination, without good cause, could result in 
denial of his claims.  See 38 C.F.R. § 3.655 (2007)).

In view of the foregoing, these matters must be REMANDED for 
the following action: 

1.  The veteran should be scheduled for a 
VA dermatological examination.  The 
entire claims file, to include a complete 
copy of this remand, must be made 
available to the examiner designated to 
examine the veteran, and the report of 
the examination should include discussion 
of the veteran's documented medical 
history and assertions.  All tests, 
studies and consultations deemed 
necessary should be accomplished and all 
clinical findings should be reported in 
detail.  

The examiner should identify any current 
skin disorder(s) and should render an 
opinion as to whether it is at least as 
likely as not (i.e., there is at least a 
50 percent probability) that any 
identified skin disorder(s) is/are the 
result of disease or injury attributable 
to the veteran's period of military 
service.  The examiner should provide 
reasons and an explanation for all 
opinions, including an explanation of the 
veteran's history in light of the absence 
of findings in the service medical 
records, or for many years after service, 
of a skin disorder.  

2.  The veteran should undergo 
examination by an appropriate VA 
physician to determine whether he has 
diabetes mellitus.  The entire claims 
file, to include a complete copy of this 
remand, must be made available to the 
examiner designated to examine the 
veteran, and the report of the 
examination should include discussion of 
the veteran's documented medical history 
and assertions.  All tests, studies and 
consultations deemed necessary should be 
accomplished and all clinical findings 
should be reported in detail.  The 
examiner should identify whether the 
veteran does in fact have diabetes 
mellitus.  The examiner should provide 
the reasons for all opinions expressed.  

3.  After the requested development has 
been completed, the medical opinion 
evidence should be reviewed to ensure 
that it is in complete compliance with 
the directives of this remand.  If the 
reports are deficient in any manner, 
corrective procedures must be 
implemented.

4.  After undertaking any other 
development deemed appropriate, the 
claims on appeal should be re-adjudicated 
in light of all pertinent evidence and 
legal authority, to include that evidence 
added to the record since the claims were 
last adjudicated in October 2007.  If any 
benefit sought is not granted, the 
veteran and his representative should be 
furnished with a supplemental statement 
of the case (SSOC) and afforded an 
opportunity to respond.  

Thereafter, the case should be returned to the Board for 
further appellate review, if in order.  By this remand, the 
Board intimates no opinion as to any final outcome warranted.  
No action is required of the veteran until he is notified by 
the agency of original jurisdiction (AOJ).  The veteran has 
the right to submit additional evidence and argument on the 
matters the Board has remanded.  Kutscherousky v. West, 
12 Vet. App. 369 (1999).  

This case must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board 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).



________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs