Citation Nr: 1300704 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 09-11 772 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a previously denied claim of service connection for a skin disorder, to include prurigo nodularis. 2. Entitlement to service connection for a skin disorder, to include prurigo nodularis. REPRESENTATION Appellant represented by: James McMillan, Esq. WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD J. Juliano, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1972 to May 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) located in Boise, Idaho. In June 2010, the appellant testified at a Travel Board hearing before a Veterans Law Judge who is no longer employed by the Board. In March 2012, the Board remanded the Veteran's claim so that he could be provided with a new hearing. See 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). In May 2012, the appellant testified at another Travel Board hearing at the RO located in Boise, Idaho before the undersigned Veterans Law Judge. Transcripts of both proceedings have been associated with the claims file. The Board notes by way of background that in May 2001, the Veteran filed a claim for service connection for tinea pedis, which was denied by an unappealed October 2001 rating decision. In April 2003, the Veteran filed an application to reopen his claim and recharacterized the claim as for tinea pedis and manuum, which claim was denied by unappealed July and August 2003 rating decisions. In July 2007, the Veteran filed another application to reopen his claim and again recharacterized the underlying claim as for jungle rot/prurigo nodularis, noting that it was previously a claim for tinea. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court of Appeals for Veterans Claims (CAVC) held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. The CAVC recognized that "the appellant had neither the legal or medical knowledge to narrow the universe of his claim or his current condition." Id. at 5. The CAVC further considered the intent of the appellant, noting that "a different result is reached when the evidence supports the service connection of a disability, but there is no indication the claimant was seeking benefits for that disability or the symptoms he was experiencing that are associated with that disability." Id. at 7. In this particular case, in light of the Veteran's recent statements as well as recent medical evidence of record (discussed in detail below), including diagnosed prurigo nodularis and noting a longstanding history of the condition previously diagnosed as tinea, the Board finds that the principle in Clemons is applicable herein, and, therefore, the Board has recharacterized the present appeal as an application to reopen a claim for service connection for a skin disorder, to include prurigo nodularis. Despite any determination reached by the RO to reopen the Veteran's claim, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); see also Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. With regard to the Veteran's application to reopen his claim of entitlement to service connection for a skin disorder, to include prurigo nodularis, as will be discussed below, the Board has determined that new and material evidence has been received, and, therefore, the claim is reopened. FINDINGS OF FACT 1. In October 2001, July 2003, and August 2003, unappealed RO decisions denied entitlement to service connection for tinea pedis and manuum, which decisions became final. 2. Evidence received since the July and August 2003 rating decisions is not cumulative or redundant, and raises a reasonable possibility of substantiating the claim for service connection a skin disorder, to include prurigo nodularis. 3. The weight of the most probative evidence is in relative equipoise on the question of whether the Veteran has a skin disorder, to include prurigo nodularis, that is casually or etiologically related to a disease, injury, or incident in service. CONCLUSIONS OF LAW 1. New and material evidence sufficient to reopen the Veteran's claim for service connection for a skin disorder, to include prurigo nodularis, has been received. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 2. Resolving doubt in favor of the Veteran, the Veteran has prurigo nodularis that was incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The Veteran's claim of entitlement to service connection for prurigo nodularis is reopened and granted, as explained below. As such, the Board finds that any error under the VCAA with regard to the Veteran's claim is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A. Application to Reopen The primary issue for resolution before the Board is whether new and material evidence has been submitted sufficient to reopen the Veteran's previously denied claim of entitlement to service connection for a skin disorder, to include prurigo nodularis. After a review of the evidence of record and as discussed in greater detail below, the Board finds that new and material evidence has been submitted, and, therefore, the claim is reopened. New evidence means evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the 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) (2012). According to the CAVC, in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. See Evans v. Brown, 9 Vet. App. 273 (1996). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). By way of background, an October 2001 RO decision denied the Veteran's claim for service connection for tinea pedis on the basis that that there was no evidence that the Veteran's tinea condition was related to service. The Veteran did not file an appeal, and the decision became final. In April 2003, the Veteran filed an application to reopen his claim and recharacterized the claim as for service connection for tinea pedis and manuum. July and August 2003 RO decisions denied the Veteran's claim on the merits, again citing a lack of evidence that the Veteran's condition was related to service. The Veteran did not file an appeal, and the decisions became final. The Board acknowledges again that the July and August 2003 RO decisions addressed the merits of the Veteran's claim. As noted above, however, despite a determination reached by the RO to reopen a claim, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); see also Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. Of record at the time of the July and August 2003 RO decisions were various private treatment records and letters from private physicians showing diagnosed tinea pedis and manuum and notations of lesions, as well as notations of the Veteran's reports of having "jungle rot." Photos were also of record. Since the final July 2003 and August 2003 RO decisions, evidence associated with the claims file includes, but is not limited to, private medical opinions from Dr. C.D.H. dated in June 2007 and December 2011, Dr. H.P. dated in June 2007, and Dr. P.D. dated in June 2007 in which they all essentially opine that the Veteran has prurigo nodularis that was caused by his active service. In addition, the Veteran was provided with a January 2008 VA examination, and subsequently, the Board obtained a November 2011 VHA opinion, neither of which tend to etiologically link the Veteran's prurigo nodularis to service. See Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (overruling Colvin) (noting that it is not required for new evidence to warrant a change in the outcome of a claim in order to constitute material evidence, but rather, materiality relates to the importance of review of a complete record). Because new evidence received since the final January 2003 RO decision includes multiple private medical opinions that the Veteran has prurigo nodularis that is related to his service, the Board finds that new and material evidence has been received. Therefore, the Veteran's claim is reopened. B. Service Connection The Board will now address whether the Veteran is entitled to service connection for prurigo nodularis on the merits of his claim. The Veteran served on active duty in the Air Force from January 1972 to May 1973. He claims that he has prurigo nodularis that is related to service. Specifically, he asserts that his prurigo nodularis was caused by insect bites he incurred while serving in triple canopy jungle, wading through knee-deep muck, in Guam at the garbage dump. See Board Hearing Transcript, May 2012 at 3-4. As an initial matter, the Board acknowledges that two January 1973 service treatment records confirm that he did in fact serve in Guam at the Andersen Air Force Base. With regard to the Veteran's service treatment records, a December 1972 record reflects that the Veteran had an ulcerated lesion on his right heel. A January 1973 record reflects that the Veteran was treated for a blister on his right heel or foot that had persisted for two months, and that he was placed on a profile to wear tennis shoes only for two weeks to allow the blister to heal properly. On his May 1973 separation report of medical history, the Veteran checked the box indicating "foot trouble." The clinician noted that the Veteran had a history of ingrown toenails and blisters caused by shoes. The Veteran testified that that he incurred several insect bites in service, and that he experienced his first blister relating to his current prurigo nodularis condition in service. See Board Hearing Transcript, June 2010 at 4-5, 10-11, 15. He testified that he experienced his first prurigo nodularis outbreak involving multiple blisters approximately two or three years post-service, and that it began in the area where he had the blister on his right foot in service and then worked its way up (as it multiplied after itching). See Board Hearing Transcript, May 2012 at 5-9. The Board also acknowledges several lay statements submitted by the Veteran, including a May 2010 statement from a buddy who served with him in Guam, J.L., who wrote that he observed blisters on the Veteran's lower extremities in service. Also, in a September 2005 lay statement, the Veteran's ex-wife (1971 to 1979) wrote that the Veteran had lesions on both feet and lower legs when he returned from service. In an October 2005 statement, another ex-wife (1982 to 1988), who is a registered nurse, reported that the Veteran was treated for lesions on his lower extremities during their marriage, including by doctors covered by his insurance such as a Dr. K., and that he did not like to wear clothes that revealed his legs due to fear of humiliation, and that the treatments never resolved the problem. A November 2005 lay statement from the Veteran's present wife since 1992 reflects that she wrote that the Veteran had always suffered from lesions on both his legs, and that it had spread to his hands. A Novmber 1999 private treatment record from Dr. P.D. reflects that the Veteran had eczema of the hands that was scaly, dry, and fissuring, and that he also reported experiencing blisters that itched. A June 2000 letter from Dr. C., a private dermatologist, to Dr. P.D. reflects that he consulted with the Veteran for a fungal condition of his hands and feet and that he opined that the Veteran had two feet - one hand syndrome. A May 2001 private treatment record from Dr. P.D. reflects that the Veteran complained of jungle rot of the hands and feet, which Dr. P.D. diagnosed as a chronic tinea infection. In a July 2001 letter, Dr. C. noted that he had treated the Veteran for what he identified as severe tinea pedis and manuum from June to August of 2000. In a subsequent July 2002 letter, Dr. C. noted that the Veteran presented for follow-up treatment. An October 2001 VA treatment record notes that examination revealed lesions over the Veteran's lower extremities diagnosed as punctuate tinea suspect. Meanwhile, private treatment records dated in August 2001 from Dr. W.J.C., October 2001 from Dr. M.D., and October 2002 from Dr. S.I. all reflect that the Veteran reported that he had "jungle rot." The October 2001 record reflects that the Veteran reported that he incurred it in Southeast Asia. A July 2002 private treatment record from Dr. S.M. reflects that physical examination revealed a rash on the Veteran's feet and a postular rash on his legs. He also noted the Veteran's reported history of "jungle rot." A March 2003 Agent Orange registry examination notes that the Veteran had multiple draining lesions on his lower legs, and a diagnosis of tinea over several areas was recorded, but no etiological opinion was provided. A March 2003 VA treatment record notes examination revealed lesions over the Veteran's feet, legs and abdomen, and a diagnosis of tinea as diagnosed previously by dermatologists was recorded. A July 2003 VA treatment record reflects that the Veteran reported that he had a rash that persisted for 30 years and that he was not clear what the diagnosis was. Examination revealed several lesions on his lower extremities and abdomen, and a diagnosis of dermatologic disease, etiology and type unclear to me, was recorded. A November 2005 VA treatment record notes the Veteran's reported history of a fungal infection since service, and that examination revealed some scars and several lesions and scabs on the Veteran's calves, arms, and abdomen. A diagnosis of a rash was recorded. A May 2007 private treatment record from Dr. C.D.H. reflects that he was referred by Dr. P.D. for consultation for his skin condition. Dr. C.D.H. noted the Veteran's history of service in Guam, and that the Veteran reported that his condition had been on and off for 35 years (since service). Examination revealed lesions and active excoriations on his upper and lower extremities and abdomen. Dr. C.D.H. recorded a diagnosis of prurigo nodularis, and noted that the Veteran was happy to know that his condition had a name. In a June 2007 private treatment record, Dr. C.D.H. acknowledged that the Veteran was seeking service connection and opined that given the Veteran's history, including the fact that his condition has been persistent since his service in Southeast Asia, it was more probable than not that the Veteran's condition was triggered by insect bites during his active duty in 1972 (in Guam). Dr. C.D.H. noted that the condition is often triggered by insect bites and can continue indefinitely. In a June 2007 letter, Dr. P.D. wrote that the Veteran had been under his care since 1994 (as his PCP, see November 2005 VA treatment record), and that he first presented with a rash that he reported he incurred in Guam in 1972. Dr. P.D. wrote that it had gotten progressively worse, that it was diagnosed as prurigo nodularis by a dermatologist, Dr. C.D.H., and that "I have no doubt" that it was related to an environmental trigger in service, most likely an insect bite. Dr. P.D. explained that while the cause of prurigo nodularis is generally unknown, it is associated with insect bites in many cases. In a June 2007 letter, Dr. H.P., a pharmaceutical biologist, wrote that physical examination of the Veteran revealed multiple blister-like lesions over more than 75 percent of his body. Dr. H.P. opined that he was "convinced" that the Veteran contracted prurigo nodularis from an insect bite while stationed in Guam. He explained that the disease is progressive, causing at first blisters (which he opined began in service), then severe itching and spreading of deeper infections over the whole body. He went on to note that natives of islands close to Guam had been using the pericap of the mangosteen fruit to treat the disease. The Board also acknowledges that the Veteran submitted various printed materials from the internet, including medical literature from Dermnet DZ dated in March 2007 (print date) regarding prurigo nodularis, which notes that it may commence as an insect bite. The January 2008 VA examination report reflects that the Veteran had a lesion on the back of his neck, and healing or healed areas over most of his body. The examiner recorded a diagnosis of prurigo nodularis, but noted that he could not provide an etiological opinion without resorting to mere speculation. The Board requested a VHA opinion in July 2011. A brief August 2011 VHA opinion letter from Dr. J.F. reflects that he opined that any answer would be speculation, albeit he was apparently not clear regarding the question presented by the Board. The Board sent a follow-up letter mostly explaining certain laws pertaining to service connection claims (e.g., that for service connection claims there generally must be evidence of a current condition, in-service incurrence or aggravation, and a nexus between the two). In a November 2011 VHA opinion letter, Dr. J.F. opined that it is not at least as likely as not that the Veteran's prurigo nodularis is casually or etiologically related to service, reasoning that the only relevant service treatment record was one January 1973 record (failing to note the December 1972 record) and citing medical literature to the effect that the cause of prurigo nodularis is unknown. In December 2011, Dr. C.D.H., in a treatment record, noted that he reviewed the VHA opinion and remarked that with regard to one of the medical texts cited by Dr. J.F. for the proposition that the cause of prurigo nodularis is unknown, Dr. J.F. failed to acknowledge that the very same text goes on to note that "in 20 percent the condition starts after insect bites." Dr. C.D.H. went on to note that his opinion was unchanged, and that a review of the literature supports the fact that insect bites trigger the cascade of events that end up as prurigo nodularis in many patients, and that the Veteran's condition can be traced back to his service in Guam when his problems began following insect bites. Clearly, the Veteran has a current prurigo nodularis disability. The Board will now address whether the Veteran's prurigo nodularis is casually or etiologically related to service. As shown above, the Veteran testified regarding incurring insect bites in Guam and experiencing blisters, and experiencing blisters again shortly after service. He has also submitted several lay statements, including from a buddy in service who witnessed the Veteran's blisters in service, as well as from his former and current wives who witnessed blisters from the Veteran's return from service to present. Certainly, the Board finds that the Veteran, his buddy, and his former and current wives are all competent to report symptoms capable of lay observation, particularly certain skin conditions such as a blister. See McCartt v. West, 12 Vet. App. 164 (1999) (noting that the Veteran's skin condition, manifested by boils, blotches, a rash, soreness, and itchiness, was capable of lay observation); see also Charles v. Principi, 16 Vet. App. 370 (2002). The Board also finds these statements to be credible and consistent with each other. Also, the Board finds the private medical opinions of Drs. C.D.H., P.D., and H.P. linking the Veteran's prurigo nodularis to service to be competent and credible given their medical training and experience, the fact that these opinions are entirely consistent with each other as well as the lay statements of record (including made by the Veteran), because they are all based on their own physical examinations of the Veteran and interview of him, and because they provided sound reasoning for their conclusions. See 38 C.F.R. § 3.159(a) (2012); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (noting that the reasoning for conclusions, not mere claims file review, contributes to the probative value of a medical opinion). The Board also notes that these private medical opinions are all consistent with the medical literature submitted by the Veteran from the internet noting that prurigo nodularis may commence as an insect bite. In light of the above, the Board finds that the evidence is in relative equipoise as to whether the Veteran's prurigo nodularis disability is casually or etiologically related to the Veteran's service, particularly his service in Guam. As shown above, the Veteran was diagnosed with an ulcerated lesion on his foot in Guam, he reports that he suffered insect bites in Guam, he has submitted lay statements regarding his symptomatology from his time of separation, and he has submitted multiple private opinions linking his condition to his service in Guam. While the Board acknowledges that in his November 2011 VHA opinion, Dr. J.F. wrote that it was not at least as likely as not that the Veteran's condition is related to service, at the same time, the Board finds the later December 2011 treatment record from Dr. C.D.H. addressing the VHA opinion, as well as all of the other medical opinions favoring the Veteran's claim that are in accord with the medical literature submitted by the Veteran as well as the lay evidence of record sufficient to bring the evidence into relative equipoise. Therefore, having resolved doubt in favor of the Veteran, the Board will grant the Veteran's claim of service connection for prurigo nodularis. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). (CONTINUED ON NEXT PAGE) ORDER As new and material evidence has been received regarding the Veteran's claim of service connection for prurigo nodularis, the Veteran's claim is reopened. Entitlement to service connection for prurigo nodularis is granted. ____________________________________________ BETHANY BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs