Citation Nr: 1300950 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 08-10 616 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a chronic skin disability, claimed as a rash on the arms and neck. 2. Entitlement to service connection for a chronic skin disability, claimed as a rash on the arms and neck. 3. Entitlement to a compensable rating for cyclitis of the right eye. 4. Entitlement to a rating higher than 30 percent for sinusitis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Biswajit Chatterjee, Counsel INTRODUCTION The Veteran served on active duty from September 1976 to June 1977. This appeal to the Board of Veterans' Appeals (Board) is from November 2007 and July 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The RO's November 2007 decision denied the Veteran's increased rating claim for cyclitis of the right eye. The RO's July 2010 rating decision found no new and material evidence to reopen the Veteran's previously denied service-connection claim for a rash on the arms and neck. Notably, the Board has jurisdictional responsibility to determine on its own whether there is new and material evidence to properly reopen this latter claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C.A. §§ 5108, 7105(c)). See also Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992). The Veteran later testified at a hearing at the RO in February 2012, before the undersigned Acting Veterans Law Judge of the Board. Although the undersigned kept the record open for an additional 30 days, the Veteran and his representative failed to submit additional medical records that they identified as pertinent to his claims. A transcript of the hearing is associated with the claims file. The issues of entitlement to service connection for a chronic skin disability and entitlement to a compensable rating for cyclitis of the right eye are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. At the February 2012 Travel Board hearing, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran and his representative, requesting a withdrawal of the appeal on the issue of entitlement to an increased rating beyond 30 percent for sinusitis. 2. An unappealed November 1977 RO rating decision denied service connection for a rash on the arms and neck, because no chronic skin disability was present. 3. Evidence added to the record since the final November 1977 denial is not cumulative or redundant of the evidence of record at the time of that decision and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal in the claim for entitlement to a rating higher than 30 percent for sinusitis have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2011); 38 C.F.R. § 20.204 (2012). 2. The November 1977 rating decision denying service connection for a chronic skin disability, claimed as a rash on the arms and neck, is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2012). 3. New and material evidence has been submitted to reopen the claim for service connection for a chronic skin disability. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2011); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal of Appeal for Increased Rating for Sinusitis The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. Here, following receipt of a Statement of the Case (SOC), a substantive appeal was filed in June 2008 appealing the issue of entitlement to a rating higher than 30 percent for sinusitis. Subsequently, a Supplemental SOC (SSOC) was issued in December 2011, continuing to deny this claim. At his February 2012 personal hearing, the Veteran and his representative indicated that the Veteran wished to withdraw his appeal in the claim for entitlement to a rating higher than 30 percent for sinusitis. The undersigned Acting Veterans Law Judge specifically asked the Veteran whether he was in agreement with withdrawal of the sinusitis claim and he concurred. Hearing Transcript (T.) at 2. The Board finds that the Veteran's statement, once transcribed as part of the record of the Board hearing, indicating his intention to withdraw the appeal as to this issue satisfies the requirements for the withdrawal of a substantive appeal. See Tomlin v. Brown, 5 Vet. App. 355 (1993) (holding that a statement made during a personal hearing, when later reduced to writing in a transcript, constitutes a Notice of Disagreement within the meaning of 38 U.S.C. § 7105(b)). Accordingly, as there remain no allegations of errors of fact or law for appellate consideration, the Board does not have jurisdiction to review the appeal and it is dismissed. II. New and Material Evidence to Reopen a Claim for a Chronic Skin Disability Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002). When determining whether a claim should be reopened, the Board performs a two-step analysis. The first step is to determine whether the evidence presented or secured since the last final disallowance of the claim is "new" and "material." See 38 U.S.C.A. § 5108; Smith v. West, 12 Vet. App. 312 (1999). Second, if VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of a Veteran's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). VA regulation defines "new" as existing evidence not previously submitted. "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. If the evidence is new and material, the next question is whether the evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2012). In determining whether evidence is new and material, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). As procedural history, the Veteran filed a claim for service connection for a rash on the arms and neck, as a result of constant medication during service. A November 1977 RO decision denied the claim, because there was no evidence of a then-current chronic skin disability, especially as shown to have resulted from injury or disease in service. The RO notified the Veteran of that decision and apprised him of his procedural and appellate rights, but he did not appeal. Therefore, that decision is final and binding on him based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. The only pertinent evidence on file at the time of that last rating decision were available STRs and his January 1990 claim for benefits. Notably, it appears that other potentially relevant service treatment records were and remain missing. The evidence that must be considered in determining whether there is a basis for reopening this claim is that added to the record since that November 1977 rating decision. See Evans v. Brown, 9 Vet. App. 273 (1996). Since that November 1977 decision, the Veteran has submitted additional copies of service treatment records, VA treatment records, Social Security Administration (SSA) disability records, personal statements and personal hearing testimony. See Evans v. Brown, 9 Vet. App. 273 (1996). This additional evidence is not only new, but also material to the disposition of this claim because there are now competent clinical findings establishing he at least has a diagnosed, chronic skin disability. To this end, his post-service VA treatment records show recent treatment and diagnoses of dermatitis, seborrheic dermatitis, contact dermatitis, and lichen simplex chronicus. Thus, this additional evidence relates to the previously unestablished requirement for service connection that he first have proof he has this claimed disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Consequently, this is new and material evidence as defined by VA regulation because this additional evidence at least establishes he has this claimed condition. 38 C.F.R. § 3.156(a). The Board notes the new evidence may not be sufficient to ultimately grant the claim on its underlying merits. To emphasize, under the regulation defining new and material evidence, 38 C.F.R. § 3.156(a), the Veteran need only submit additional evidence sufficient to raise a reasonable possibility of substantiating his claim. Accordingly, this claim is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. To this extent only, this appeal is granted subject to the further development of this claim on remand. ORDER The appeal in the claim for entitlement to a rating higher than 30 percent for sinusitis is dismissed. New and material evidence having been submitted, the claim of entitlement to service connection for a chronic skin disability, claimed as a rash on the arms and neck, is reopened, subject to the further development of this claim in the remand below. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(c), (d) (2012). I. Outstanding Private Treatment Records Before adjudicating the remaining claims for service connection for a chronic skin disability and a compensable rating for cyclitis of the right eye, the AMC needs to confirm if there are any outstanding private treatment records. In particular, the Veteran testified that there are statements and/or treatment records from a private treating physician, Dr. M.K. from the Jefferson Comprehensive Care Unit. Hearing Transcript (T.) at 5, 9-10. As mentioned, at the hearing, the undersigned held the record open an additional 30 days for the submission of said records, but the Veteran did not submit this pertinent evidence. Hence, the Board must remand this claim so that the AMC should attempt to obtain and associate with the claims file these potentially outstanding private records from Dr. M.K. On remand, the AOJ should request the Veteran to fill out the proper authorization form so that Dr. M.K.'s pertinent records may be obtained. Any additional private treatment records that are potentially relevant would need to be obtained before deciding his appeal. 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. §§ 3.159(c)(1) and (2). II. VA Compensation Examination and Medical Opinion for Chronic Skin Disability The Board finds that a VA examination to determine the nature and etiology of the Veteran's claimed chronic skin disability is warranted. VA's duty to assist the Veteran in substantiating his claim also includes providing a medical examination and/or obtaining a medical opinion when necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), citing 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). Again, the Veteran has established a present chronic skin disability. His post-service VA treatment records show recent treatment and diagnoses of dermatitis, seborrheic dermatitis, contact dermatitis, and lichen simplex chronicus. There is no indication of in-service incurrence of a chronic skin disability in his service treatment records, which are unremarkable for treatment or diagnoses of any skin disease. Nonetheless, the Veteran contends he has suffered persistent itching, burning and disfigurement since military service. The record thus suggests continuity of symptomatology since service, as he is competent to report these experiences since they are within the realm of lay experience and observation. See generally Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran should be afforded a VA examination and medical opinion to determine the nature and etiology of the claim for a chronic skin disability, identified as a rash on the neck and arms, with consideration of his competent lay statements of a continuity of skin problems since service. III. Reexamination for Cyclitis of Right Eye The Veteran's right eye disability must be reexamined to reassess its severity. The Board notes his last VA compensation and pension (C&P) examination for this eye disease disability was provided in August 2010. The Veteran testified that his right eye disability has grown progressively worse since that last C&P examination. This warrants another VA compensation examination to confirm if the disability has materially worsened. 38 C.F.R. § 3.327 (2012); VAOPGCPREC 11-95 (April 7, 1995) (explaining that while the Board is not required to direct a new examination simply because of the passage of time, a new examination is appropriate when the claimant asserts that the disability in question has undergone an increase in severity since the time of the last examination). The last examination was provided over two years ago, thus also raising the need for a more current examination. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran whether there are any additional private treatment records that need to be obtained and considered in his appeal. In particular, ask the Veteran to complete and return the necessary authorization (VA Form 21-4142) for the AOJ to obtain the medical treatment records from Dr. M.K. from the Jefferson Comprehensive Care Unit, and any other outstanding private treatment records. If he provides a completed release form authorizing VA to obtain these confidential treatment records, then attempt to obtain them with at least one follow-up request if no reply is received. See 38 C.F.R. § 3.159(c)(1) (2012). Any negative development should be properly annotated into the claims file. See 38 C.F.R. § 3.159(e) (2012). 2. After the requested development in paragraph #1 is completed, schedule the Veteran for an appropriate VA examination in order to determine the nature and etiology of his claimed chronic skin disability. It is imperative that the claims file be made available to the examiner and reviewed in connection with the examination. Any medically indicated special tests should be accomplished, and all special tests and clinical findings should be clearly reported. The examiner should respond to the following: a) Please confirm if the Veteran currently has a chronic skin disability, claimed by the Veteran as a rash of the neck and arms. b) For each disability found, did it at least as likely as not (a 50% or higher degree of probability) have its clinical onset during the Veteran's period of service, or is any such disability otherwise related to such period of service, including to any in-service injury or disease? For purposes of the examination and opinion, the examiner should consider that the Veteran has competently asserted a history of skin problems (e.g., itching, burning, and disfigurement) since service. A rationale for all requested opinions shall be provided by the examiner. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After the requested development in paragraph #1 is completed, schedule A VA eye disease examination to determine the level of severity of the Veteran's cyclitis of the right eye. All indicated tests should be accomplished. The claims folder should be made available to the examiner in connection with the examination. 4. Then readjudicate the remaining claims in light of any additional evidence. If these claims are not granted to the Veteran's satisfaction, send him a Supplemental SOC (SSOC) and give him an opportunity to respond to it before returning the file to the Board for further appellate consideration of these claims. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs