Citation Nr: 1300632	
Decision Date: 01/08/13    Archive Date: 01/16/13

DOCKET NO.  12-03 297	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for a skin disorder of the left leg, to include the question of whether finality attached to the rating decision of February 2, 2009.  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

Brian J. Milmoe, Counsel

INTRODUCTION

The Veteran served on active duty from June 1954 to November 1957.  

This case is before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in May 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, denying what the RO determined was a claim to reopen for service connection for a skin disorder of the left leg.  

In his substantive appeal of January 2012, the Veteran requested a hearing before the Board, sitting at the RO, and noted as well that he was seeking a hearing before the RO's decision review officer in lieu of a Board hearing.  An RO hearing was thereafter scheduled to occur in September 2012, but prior to its occurrence, the Veteran through his representative's written statement of August 2012 withdrew formally withdrew the Veteran's request for a hearing.  No further actions are thus necessary in this regard.  

Notice is taken that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The Board herein reaches only the merits of the question of whether finality attached to the rating action of February 2009, denying the Veteran's original claim for service connection for a skin disorder of his left leg, finding that it did not and, in effect, that the original claim for service connection is now before the Board for review.  The merits of that claim are addressed in the REMAND portion of the decision below, and that original claim is herein REMANDED to the RO via the VA's Appeals Management Center (AMC) in Washington, DC.


FINDING OF FACT

By rating action entered on February 2, 2009, the RO denied the Veteran's original claim of entitlement to service connection for a skin disorder of the left leg, but the Veteran thereafter timely initiated and perfected an appeal of the February 2009 denial.  


CONCLUSION OF LAW

The RO's action of February 2, 2009, denying the Veteran's original claim of entitlement to service connection for a skin disorder of the left leg, is not final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.103, 3.104 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Preliminarily, it is noted that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096  (Nov. 9, 2000), imposes on VA certain duties as to notice and assistance to claimants for specified VA benefits.  See 38 U.S.C.A. §§ 5103, 5103A (West 202 and Supp. 2012); 38 C.F.R. § 3.159 (2012).  However, as the disposition herein reached is favorable to the appellant to the extent indicated, the need to discuss VA's efforts to comply with the VCAA and its implementing regulations and jurisprudence at this juncture is obviated. 

The RO has developed this matter on the basis of whether new and material evidence has been presented to reopen a claim of entitlement to service connection for a skin disorder of the left leg.  In so doing, the RO has held that VA previously had denied the Veteran's original claim therefor in a final, rating decision entered on February 2, 2009.  In light of the Board's responsibility to ascertain that it has jurisdiction over the subject matter presented in each and every case, see Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), the Board first addresses whether the February 2009 denial decision is final.  All remaining questions are addressed in the Remand below. 

By way of background, it is noted that the Veteran initiated his original claim for service connection for a skin disorder of his left leg in May 2008.  The RO by its rating decision of February 2, 2009, denied that claim on the basis that no chronic skin disorder of the left leg having its origin in service was shown.  

By correspondence, dated in February 2009, the Veteran was advised by the RO of the adverse action taken, and he submitted a notice of disagreement with that action in late February 2009.  A statement of the case was not then provided to him until September 2009 and in December 2009, the Veteran submitted a VA Form 21-4138, Statement in Support of Claim, noting, in pertinent part, the following:

I reclaim S/C Left Leg shin area, Skin Rashes, possibly Virus, which I acquired at Andrews AFB, MD, in Winter of 1955 and still continues to reoccur every winter.  

The cited sentence in that document is annotated in handwriting with the notation of "Appeal."  That document was accompanied by a claims tracking form submitted by the Veteran's representative in which it was indicated that the submission was for new and reopened claims.  In the RO's subsequent correspondence of February 2010 to the Veteran, which was provided to him for compliance with the VA's duty to notify as to unrelated claims advanced in the aforementioned December 2009 document, the RO advised the Veteran that his reopened claim for service connection for a skin disorder of the left leg was currently on active appeal and would be addressed by the appeals team.  

In general, decisions of the agency of original jurisdiction (the RO) that are not appealed within in the prescribed time period are final.  38 U.S.C.A. § 7105; 38 C.F.R. § 3.104.

An appeal to the Board is initiated by filing a timely notice of disagreement, and is perfected by filing a timely substantive appeal.  38 C.F.R. § 20.200 (2012).  A substantive appeal consists of a properly completed VA Form 9, Appeal to Board of Veterans' Appeals, or correspondence containing the necessary information.  38 C.F.R. § 20.202 (2012).  It should set out specific arguments relating to errors of fact or law made by the RO in reaching the determination being appealed.  Id.  

To be considered timely, a substantive appeal must be filed within 60 days from the date that the RO mails the statement of the case to the appellant, within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, or within any extended time limits prescribed pursuant to a timely-filed request for extension of time.  38 U.S.C.A. § 7105(d); 38 C.F.R. §§ 20.302(b), 20.303 (2012).  If the claimant fails to file a substantive appeal in a timely manner, "he is statutorily barred from appealing the RO decision."  Roy v. Brown, 5 Vet. App. 554, 556 (1993). 

In this instance, the Veteran's December 2009 statement may reasonably be viewed as a substantive appeal with respect to the February 2009 denial of service connection for a skin disorder of the left foot, notwithstanding the existence of at least some evidence to the contrary.  There is in fact evidence both for and against the question presented, but what is determinative is the RO's statement in its February 2010 letter to the Veteran, on which he had a right to rely, that his original claim for service connection remained on active appeal.  See Percy v Shinkseki, 23 Vet. App. 37 (2009).  It, too, is unclear whether the Veteran fully understands the adjudication process involving claims for VA compensation and their progression toward a final determination.  Nonetheless, he was notified by the RO that his claim was on active appeal and the Board resolves reasonable doubt in his favor and concludes that finality did not attach to the February 2009 denial of service connection for a skin disorder of the left leg.  

De novo review of the original claim for service connection for a skin disorder of the left leg is in order and remand is required in order to permit the RO to effectuate additional development actions, followed by its further consideration of the merits of the original claim.  


ORDER

The RO's decision of February 2, 2009, denying the Veteran's original claim of entitlement to service connection for a skin disorder of the left leg, is not final.  To that extent alone, the appeal is granted. 
REMAND

As the Veteran's original claim for service connection for a skin disorder of the left leg remains pending on appeal, as initiated and timely perfected, further consideration of such claim by the RO is required on a de novo basis.  Remand to the RO via is required to effectuate such consideration. 

This is a case in which complete service treatment records are unavailable for review due to their destruction by fire at the National Personnel Records Center.  The only available service record is the November 1957 report of a separation medical examination indicating no clinical abnormality of the skin or lower extremities and a history of inservice boils on one occasion without recurrence.  It is the Veteran's allegation that in or about 1955 he was issued snowshoes, use of which led to a skin rash of the upper left shin where the top of the boot reached.  According to the Veteran, inservice hospitalization on multiple occasions followed for treatment of ringworm and the associated shin rash and it is alleged that the rash recurred on numerous occasions following service discharge.  Moreover, the Veteran has indicated that he was treated by VA following service separation for his recurring left leg rash, including but not limited to VA medical facilities located in Louisiana.  

Further development for the retrieval of pertinent medical records and to afford the Veteran a VA medical examination is needed.  Remand is required to permit VA to effectuate this development.  

Accordingly, this appeal is REMANDED for the following actions: 

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  Consistent with the provisions of 38 U.S.C.A. §§ 5100, 5103; 38 C.F.R. § 3.159, notify the Veteran in writing of what information and evidence are still needed to substantiate his original claim of entitlement to service connection for a skin disorder of the left leg.  

2.  Undertake whatever efforts necessary to obtain a complete set of the Veteran's service treatment and personnel records, including any existing records or data from supplementary sources confirming inservice examination or treatment for ringworm or a skin disorder of the left leg.  

Efforts to obtain a complete set of service records must continue until the RO or AMC determines that the records sought do not exist or that further efforts to obtain same would be futile, and, if it is so determined, then appropriate notice under 38 C.F.R. § 3.159(e) (2012) must be provided to the Veteran and he must then be afforded an opportunity to respond. 

3.  Request that the Veteran identify all VA and non-VA sources of pertinent examination or treatment for his claimed skin disorder of the left leg during postservice years and include the locations and approximate dates of any such examination or treatment and the circumstances relating thereto.  

4.  After obtaining written authorization from the Veteran, request any and all pertinent examination and treatment records referenced by him as having been undertaken by non-VA sources during postservice years.  Once obtained, those records should be made a part of the Veteran's VA claims folder.  

5.  Obtain all pertinent records of VA medical treatment, not already on file, including those compiled at VA medical facilities in Louisiana, for inclusion in the Veteran's VA claims folder.  

Efforts to obtain these records must continue until the RO or AMC determines that the records sought do not exist or that further efforts to obtain same would be futile, and, if it is so determined, then appropriate notice under 38 C.F.R. § 3.159(e) (2012) must be provided to the Veteran and he must then be afforded an opportunity to respond.

6.  Thereafter, afford the Veteran a VA medical examination for the purpose of determining the nature and etiology of his claimed skin disorder of his left leg and its asserted relationship to inservice ringworm.  The claims folder in its entirety must be made available to and reviewed by the examiner for use in the study of this case.  That examination is to include a detailed review of the appellant's history and current complaints, as well as a comprehensive physical examination and any and all indicated diagnostic testing deemed necessary by the examiner.  All pertinent diagnoses must be set forth. 

The VA examiner is asked to address the following, providing a professional opinion and supporting rationale where appropriate: 

Is it at least as likely as not (50 percent or greater probability) that any currently diagnosed disorder affecting the skin of the Veteran's left leg had its onset in service or is otherwise related thereto? 

The VA examiner is advised that the term as likely as not does not mean within the realm of possibility.  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of service incurrence or nexus to service as to find against such matters.  More likely and as likely support the contended relationship; less likely weighs against the claim.

7.  Lastly, readjudicate the merits of the Veteran's May 2008 original claim for service connection for a skin disorder of the left leg based on all the pertinent evidence of record and all governing legal authority, and if the benefit sought on appeal is not granted, provide the Veteran with a supplemental statement of the case and afford him a reasonable period in which to respond, prior to returning the case to the Board for further review. 

No action by the appellant is needed until he receives further notice.  The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).


______________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs