Citation Nr: 1302810 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 10-26 393 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a skin disorder, claimed as secondary to herbicides (Agent Orange). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran had active service from September 1966 to September 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Travel Board hearing held in July 2011, before the undersigned Veterans Law Judge at the Nashville RO. The transcript from that hearing has been associated with the claims file and reviewed. FINDINGS OF FACT 1. In unappealed September 1998 and November 2002 rating actions, the RO denied service connection for a skin disorder including due to Agent Orange exposure; the November 2002 rating action is the last final denial decision as to this issue on any basis before the present attempt to reopen the claim. 2. The evidence received since the November 2002 rating decision is new, but does not raise a reasonable possibility of substantiating the underlying claim for service connection for a skin disorder, and is not material evidence. CONCLUSION OF LAW The November 2002 rating decision that denied service connection for a skin disorder is final; and new and material evidence has not been submitted since then to reopen this previously denied and unappealed claim. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156(a), 20.1103 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Before addressing the merits of the new and material evidence issue on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in March 2009 of VA's duty to assist him in substantiating his claim under the VCAA, and the effect of this duty upon his claim. This letter also informed him of how disability ratings and effective dates are assigned. See Dingess, 19 Vet. App. at 484. The March 2009 also letter informed the Veteran of what constituted new and material evidence to reopen the previously denied unappealed claim for service connection. He was informed that evidence is new if it is submitted to the VA for the first time and that material evidence must pertain to the reason the claim was previously denied. This correspondence also met the specificity required under Kent v. Nicholson, 20 Vet. App. 1 (2006), as the Veteran was advised of the exact reason for the previous denial and the evidence needed to reopen the claim for service connection. Because the letter addressed all notice elements and predated the initial adjudication by the AOJ/RO in March 2009, nothing more was required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim adjudicated herein. His in-service and pertinent post-service treatment reports are of record. While VA did not provide the Veteran with examination and/or did not obtain a medical opinion, as to the origins of the claimed skin disorder, the Board finds that VA had no obligation to do so. VA need not conduct an examination or obtain a medical opinion with respect to the issue of whether new and material evidence has been received to reopen the previously denied claim of service connection because the duty under 38 C.F.R. § 3.159(c)(4) applies to a claim to reopen only if new and material evidence is presented or secured. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Accordingly, an examination is not required here, even under the low threshold of McLendon. As noted above, the Veteran was provided with a Board hearing in July 2011. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the provisions of 38 C.F.R. § 3.103(c)(2) (2012) require that the hearing officer who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues, and (2) the duty to suggest the submission of evidence that may have been overlooked. The Board finds that both duties were met during the hearing. It was clear during the hearing that the Veteran had a full understanding of the issue on appeal. In addition, the undersigned left the claims file open for 60 days to allow the Veteran to submit additional supporting evidence. More than 60 days have passed and the Veteran has not submitted any medical records or other evidence in support of his claim. For the above reasons, the Board finds that, consistent with Bryant, VA has complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. It must be noted that neither the Veteran nor his representative have asserted that VA failed to comply with the provisions of 38 C.F.R. § 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing. Thus, the Board finds that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claims under the VCAA. No useful purpose would be served in remanding this matter for yet more development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); & Quartuccio v. Principi, supra. Law and Analysis The RO originally denied the claim of service connection for a skin rash/lesions in September 1998 on the basis that there was no evidence of a chronic skin disorder. In a subsequent decision dated in November 2002, the RO affirmed the denial of service connection for a skin disorder on the basis that the Veteran had not presented evidence that his current skin condition, diagnosed as tinea corporis, was incurred in or aggravated in service and was not a condition that VA had determined was associated with exposure to an herbicide. The Veteran did not appeal either decision and they are both final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2012). In March 2009, the Veteran filed an informal claim, seeking to reopen the matter. However, before the Board may reopen a previously denied claim, it must conduct an independent review of the evidence to determine whether new and material evidence has been submitted sufficient to reopen a prior final decision. The Board does not have jurisdiction to consider a claim which has been previously adjudicated unless new and material evidence is present, and, before the Board may reopen such a claim, it must so find. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g Barnett v. Brown, 8 Vet. App. 1 (1995); see Butler v. Brown, 9 Vet. App. 167, 171 (1996); 38 U.S.C.A. §§ 5108, 7104(b). If the Board finds that new and material evidence has not been submitted, it is unlawful for the Board to reopen the claim. See McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). A previously and finally denied claim may be reopened by the submission of new and material evidence. 38 C.F.R. § 3.156(a) (2012). New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 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 last 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). In deciding the issue of whether newly received evidence is "new and material," the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512, 513 (1992). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For purposes of establishing service connection for a disability claimed to be a result of exposure to Agent Orange, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2012). The applicable criteria also provide that a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e), will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). The Secretary, under the authority of the Agent Orange Act of 1991 and based on the studies by the National Academy of Sciences (NAS), has determined that there is no positive association between exposure to herbicides and any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41,442-449, and 61 Fed. Reg. 57,586-589 (1996); Notice, 64 Fed. Reg. 59,232 -243 (Nov. 2, 1999); Notice, 67 Fed. Reg. 42,600-08 (June 24, 2002); Notice, 72 Fed. Reg. 32,395-407 (June 12, 2007). The RO's current denial in this case is predicated upon the fact that new and material evidence has not been submitted to reopen the claim. It bears reiterating that when the RO denied the claim in November 2002, the following reasons were provided: there was no causal or etiological relationship demonstrated between any currently diagnosed skin disorder and the Veteran's period of active duty to include herbicide exposure. Thus, any "new" evidence would have to contribute toward substantiating the contention that a currently diagnosed skin disorder was incurred in or aggravated by service or is otherwise associated with exposure to herbicides. At the time of the November 2002 rating decision, it had already been established that the Veteran served in Vietnam during the Vietnam-era service and as such was presumptively exposed to Agent Orange/herbicides in service. See VA Form 70-3101-4. It was also established that service treatment records were negative for evidence of a skin disorder and that post-service treatment records show initial diagnoses of tinea corporis and onychomycosis in 1991, 23 years after his separation from active duty. Other records show continued evaluation and treatment of the Veteran for tinea corporis and onychomycosis as well as additional skin rashes variously diagnosed as tinea ungum and tinea pedis, with no suggestion in the record, and certainly no etiological opinion suggesting, that any diagnosed skin disorder was related to his military service. Unfortunately, these skin disorders are not among the disabilities which have been associated with exposure to herbicides such as Agent Orange. See 38 C.F.R. § 3.309(e). As such, they are not statutorily recognized as presumed to result from herbicide exposure. The relevant evidence that has been added to the file since November 2002 includes VA and private treatment records dated from 1994 and 2009 and testimony from the July 2011 hearing. The VA records show ongoing treatment of the Veteran's various current medical conditions, including tinea corporis, onychomycosis, tinea ungum, tinea pedis, and dermatitis, but provide no new information about their etiology. This evidence, although new, is not material in that it is cumulative of prior records, which reflect the Veteran has a skin disorder, but does not otherwise contain a competent medical opinion relating it to service. In any event, merely showing additional evaluation and treatment of these disabilities is insufficient reason to reopen the claims. See Cornele v. Brown, 6 Vet. App. 59, 62 (1993) (medical evidence that merely documents continued diagnosis and treatment of disease, without addressing other crucial matters such as causation, does not constitute new and material evidence). See also Cox v. Brown, 5 Vet. App. 95, 99 (1993) and Morton v. Principi, 3 Vet. App. 508, 509 (1992) (per curiam) (medical records describing Veteran's current condition are not material to the issue of service connection and are insufficient to reopen claim for service connection based on new and material evidence). The Board has also considered a March 2009 medical opinion from the Veteran's private orthopedist that refers to a past medical history of a skin disorder of 41 years duration. However this reference is based on the Veteran's narrative history and not on any independent evaluation of a medical relationship between an in-service injury (herbicide exposure) and a current skin disorder. To the extent that the Veteran's historical account relates his skin disorder to service, the Board notes that a bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional. Howell v. Nicholson, 19 Vet. App. 535 (2006); LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Therefore, the private medical report is not evidence upon which the Board can reopen the Veteran's claim, because it is not material. At his July 2011 hearing, the Veteran testified that he was told that he had a systemic fungus disease loosely referred to as ring worm (tinea corporis) that was incurred as a result of his Vietnam service. See Hearing Transcript p. 6. The Board acknowledges that the Veteran is competent to give evidence about what he sees and feels. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board is also aware that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994) Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). However to the extent that the Veteran's testimony is an attempt to establish service connection, the Board notes that such evidence essentially constitutes reiterations of his assertions of a skin disorder being related to military service, which were advanced and addressed by the RO in November 2002, and, thus, cannot be considered "new" within the meaning of 38 C.F.R. § 3.156(a). See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992); see also Moray v. Brown, 5 Vet. App. 211, 214 (1993). See also Anglin v. West, 11 Vet. App. 361, 368 (1998) (Veteran's testimony supporting fact previously rejected regarding an alleged PTSD stressor was cumulative). Consequently, because the newly-received testimony is not pertinent to the question of whether the Veteran's skin disorder is related to his military service, it does not relate to an unestablished fact needed to substantiate the claim and cannot raise a reasonable possibility of substantiating the issue. See Shade v. Shinseki, 24 Vet App 110 (2010). In sum, the additional evidence simply fails to show that any currently diagnosed skin disorder, including tinea corporis, was incurred in or aggravated in service; nor is it associated with herbicide exposure. As such, the additional evidence is not new and material and does not relate to an unestablished fact necessary to substantiate the claim. Thus, the Board concludes that new and material evidence has not been received sufficient to reopen the previously denied claim for service connection for a skin disorder. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). ORDER New and material evidence having not been received, the claim to reopen the issue of entitlement to service connection for a skin disorder is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs