Citation Nr: 1307424 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 10-25 894 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco Texas THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of service connection for a skin disorder, to include tinea versicolor. 2. Entitlement to service connection for a skin disorder, to include tinea versicolor. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active duty service in the U.S. Army from May 1974 to October 1997. The issues on appeal first came to the Board of Veterans' Appeals (Board) from a November 2009 rating decision issued by the RO. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Board will decide the matter of new and material evidence to reopen the claim of service connection for a skin disorder. However, the Board is remanding for further development and consideration the underlying matter of service connection for a skin disorder to the RO via the AMC in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. The RO denied service connection for folliculitis and tinea versicolor in a September 2002 rating decision. Although notified of the denial and apprised of his appellate rights, the Veteran did not initiate an appeal. 2. The evidence received since the September 2002 rating decision is new, relevant, and raises a reasonable possibility of substantiating claim of service connection for a skin disorder. CONCLUSION OF LAW New and material evidence has been submitted since the September 2002 RO decision to reopen the claim of service connection for a skin disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist As to the new and material evidence issue for a skin disorder, review of the claims folder does not reveal compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Specifically, no VCAA letter was compliant with the Court's decision in Kent v. Nicholson, 20 Vet. App. 1 (2006), since the July 2009 letter failed to address the issue of new and material evidence for a skin disorder. However, if any defect in VCAA notice or assistance is found, such defect is not prejudicial to the Veteran, given that the Board is reopening the new and material evidence issue. See 38 C.F.R. § 20.1102; Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). With regard to the now-reopened claim, the Board finds that further evidentiary development is needed and will be discussed hereinbelow. Therefore, an analysis regarding compliance with VCAA for the underlying claim of service connection is not required at this time. New and Material Evidence - Skin Disorder The RO originally denied service connection for a skin disorder, to include folliculitis and tinea versicolor in a September 2002 rating decision. The RO notified the Veteran of that decision and apprised him of his procedural and appellate rights, but he did not initiate an appeal. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2012). The Board denied service connection for tinea versicolor in the final September 2002 rating decision because although the evidence revealed an in-service diagnosis for tinea versicolor, the evidence did not establish any current post-service diagnosis for tinea versicolor. In the November 2009 rating decision on appeal, the RO failed to address whether new and material evidence was submitted to reopen the skin disorder issue. Rather, the RO simply considered service connection on the merits. Regardless of the RO's actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. 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). Accordingly, the Board must initially determine on its own whether there is new and material evidence to reopen the skin disorder claim, in particular the tinea versicolor condition, before proceeding to readjudicate the underlying merits of the claim. If the Board finds that no new and material evidence has been offered, that is where the analysis must end. The Veteran filed his petition to reopen service connection for a skin disorder in May 2009. Therefore, the amended regulation for new and material evidence applies. See 66 Fed. Reg. at 45,620 (applying the revised version of 38 C.F.R. § 3.156 to petitions to reopen filed on or after August 29, 2001). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. Under the revised standards, new evidence means existing 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 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 determining whether evidence is new and material, the credibility of the evidence in question is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). But see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible"). In Shade v. Shinseki, 24 Vet. App. 110, 118-19 (2010), the Court held that new evidence would raise a reasonable possibility of substantiating the claim if when considered with the old evidence it would at least trigger the Secretary's duty to assist by providing a medical opinion. There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim, for purposes of reopening the claim. Id. at 117. Here, the Board finds that new and material evidence within the meaning of 38 C.F.R. § 3.156(a) has been received since the last, final September 2002 rating decision. Specifically, a May 2009 VA dermatology consult, an August 2009 VA examiner, and an October 2012 VA physician diagnosed a current tinea versicolor skin disorder. Presuming the credibility of this evidence, this evidence relates to an unestablished fact necessary to substantiate his skin disorder claim and raises a reasonable possibility of substantiating his claim. That is to say, this evidence is new and material and his claim is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). ORDER As new and material evidence has been received to reopen the claim of service connection for a skin disorder, the appeal to this extent is allowed subject to further action as discussed hereinbelow. REMAND As discussed, the claim of service connection for a skin disorder is reopened based on the submission of new and material evidence. However, before addressing the merits of the underlying service connection claim on appeal, the Board finds that additional development is required. First, the RO must obtain a VA addendum opinion (another VA examination is not necessary) from the October 2012 VA physician with regard to the Veteran's skin disorder claim, on the basis of in-service incurrence as well as aggravation of a disorder (tinea versicolor) that preexisted service. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). Although a physician provided a VA Disability Benefit Questionnaire (DBQ) opinion in October 2012, the VA physician failed to consider certain probative evidence of record. Specifically, the VA physician stated there were no post-service complaints for tinea versicolor until a May 2009 VA dermatology consult. However, the VA physician did not discuss the significance of earlier, probative post-service evidence of record - that is, an earlier February 2002 VA Agent Orange examination (revealing four small subcutaneous nodules in the left axilla diagnosed as folliculitis); a July 2002 VA skin examination (diagnosing folliculitis in the left axilla area and right posterior shoulder, with symptoms reported since 1991); and November 2002 VA general medical examination (discussing a repeating sudamina type rash on the elbows in the spring season). These documented skin symptoms appear to be present in the same areas of the body that his tinea versicolor is present. It is unclear whether these symptoms are indicative of a separate skin condition, or merely a misdiagnosis. From the October 2012 VA opinion, it is not clear whether the physician was even aware of this evidence. The Court has held that a VA medical examiner's conclusions were of "questionable probative value" when the examiner failed to consider certain relevant information. Mariano v. Principi, 17, Vet. App. 305, 312 (2003). Therefore, the claims folder will be returned to the physician, who provided the October 2012 VA opinion, to provide an addendum opinion. See 38 C.F.R. § 4.2 (if the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). If that physician is no longer available, another qualified VA clinician will provide the addendum opinion. Another VA examination is not necessary in the present case, unless deemed necessary by the respective VA clinician. Second, all relevant VA treatment records on Virtual VA dated since October 2012 must also be obtained. VA's duty to assist includes obtaining records of relevant VA medical treatment. 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive, if not actual, knowledge of evidence generated by VA). Accordingly, the reopened claim is REMANDED to the RO for the following action: 1. The RO must take all indicated action to secure copies of all relevant VA medical treatment records dated after October 2012. All attempts to secure these records, and any response received, must be documented in the claims file. If no records are available, a response to that effect is required and should be documented in the file. 2. The RO must secure a VA addendum opinion on the issue of in-service incurrence and aggravation of a skin disorder, from the VA physician who provided the October 2012 VA opinion. If that physician is no longer available, another qualified VA clinician may provide the addendum opinion. (Another VA examination is not necessary, as the record itself is adequate, unless deemed necessary by the respective VA clinician). A clear rationale for all opinions and a discussion of the facts and medical principles involved is required. The claims folder must be made available for review for the examination and the addendum report must state whether such review was accomplished. In providing the opinion, the reviewing VA physician should address the following: (i) Previously, the VA examiner did not discuss the significance of earlier, probative post-service evidence of record - that is, an earlier February 2002 VA Agent Orange examination (revealing four small subcutaneous nodules in the left axilla diagnosed as folliculitis); a July 2002 VA skin examination (diagnosing folliculitis in the left axilla area and right posterior shoulder, with symptoms reported since 1991); and a November 2002 VA general medical examination (discussing a repeating type rash on the elbows in the spring season). The physician only discussed post-service evidence beginning in 2009. Yet these documented post-service skin symptoms appear to be present in the same areas of the body that the Veteran's tinea versicolor is present. As such, it should be clarified whether these documented skin symptoms were indicative of a separate skin condition other than tinea versicolor, or merely a misdiagnosis. (ii) After discussing this additional evidence, please answer whether Veteran's preexisting tinea versicolor which was noted upon enlistment and induction into service PERMANENTLY INCREASED in severity during his military service from May 1974 to October 1997? (iii) If there was a permanent increase in severity of the Veteran's tinea versicolor during his military service, please answer whether is it "undebatable" or "obvious" or "absolutely certain" this permanent increase in severity was due to the natural progression of the disability? (iv) If a current skin disorder other than tinea versicolor is diagnosed, such as folliculitis or dermatitis, is it at least as likely as not (i.e., 50 percent or more probable) that any of these skin disorders are related to an event or incident of the Veteran's military service, to include his environmental exposure in the Persian Gulf or his documented in-service treatment for contact dermatitis after diesel spills? See STRs dated in December 1976, February 1983, March 1983, September 1985; March 1994 Report of Medical History. In other words, the physician should clarify whether these documented skin symptoms both in-service and post-service are indicative of a separate skin condition other than tinea versicolor, or merely a misdiagnosis. The VA examiner is also advised that skin conditions by their very nature tend to have active versus inactive stages. See Ardison v. Brown, 6 Vet. App. 405, 408 (1994). (v) The term "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 3. The RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing physician for corrective action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing all indicated development to the extent possible, the RO should readjudicate the reopened claim of service connection for a skin disorder in light of all the evidence of record. If the benefit sought on appeal remains denied, the RO should furnish a fully responsive Supplemental Statement of the Case (SSOC) to the Veteran and his representative and they should afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is otherwise notified by the RO. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. The Veteran has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs