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