Citation Nr: 1319056 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 09-49 057 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for atopic dermatitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The appellant served on active duty from February 26, 1974 to April 3, 1974. This matter comes before the Board of Veterans' Appeals (Board) from a March 2008 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which found that new and material evidence had not been submitted to reopen the claim for service connection for atopic dermatitis. With regard to the Veteran's request to reopen the claim for service connection, 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 presented sufficient to reopen a prior final decision. Barnett v. Brown, 8 Vet. App. 1 (1995); 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that new and material evidence has not been submitted, the claim is not reopened. McGinnis v. Brown, 4 Vet. App. 239 (1993). FINDINGS OF FACT 1. A July 1974 rating decision denied service connection for atopic dermatitis. The Veteran did not appeal the July 1974 RO decision, and it became final. 2. Subsequent to the final July 1974 RO rating decision, there has not been evidence received that is new and that relates to an unestablished fact necessary to substantiate the claim for service connection for atopic dermatitis, or raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The July 1974 RO rating decision which denied service connection for atopic dermatitis is the last final disallowance of that claim. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d) (2012). 2. Since the July 1974 RO rating decision, there is not been evidence received that is new and material, and the Veteran's claim for service connection for atopic dermatitis is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1) (2012). The notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements apply to all five elements of a service connection claim: (1) Veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate notice, followed by readjudication of the claim, as in a statement of the case or supplemental statement of the case. Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). The burden of proving harmful error rests with the party attacking the agency decision. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the duty to notify was satisfied by a letter sent to the Veteran in February 2008 that fully addressed the notice elements and was sent prior to the initial RO decision in this matter. That letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. In the February 2008 letter, the Veteran was also advised of how disability ratings and effective dates are assigned. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Moreover, he has not demonstrated any error in notice. Therefore, the Board concludes that all required notice has been given to the Veteran. VA must notify a claimant of the evidence and information that is necessary to reopen a claim and VA must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim. The duty to notify requires, in the context of a claim to reopen, that VA look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish the claim that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). In the February 2008 letter, the Veteran was informed of the evidence necessary to establish eligibility for the claimed VA benefits; of the necessity of presenting new and material evidence along with the definition of new and material evidence; and of the bases for the prior denial. Thus, the February 2008 letter adequately complied with the duty to notify, and the Veteran has not been prejudiced by the notice and assistance provided. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim. The RO has obtained all identified and available service medical records for the Veteran. The record shows that the Veteran has not identified any post-service records that need to be obtained. Also, a VA examination is not necessary because the claim is not reopened. It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which needs to be obtained for a fair disposition of the appeal. The Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The Board concludes 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. No useful purpose would be served in remanding this matter for more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. Such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426 (1994). To reopen a claim following a final decision, the Veteran must submit new and material evidence. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). New evidence means 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). For the purpose of determining whether evidence is new and material, the credibility of the evidence is presumed. Cox v. Brown, 5 Vet. App. 95 (1993); Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Moreover, in determining whether the low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110 (2010). A July 1974 rating decision denied service connection for atopic dermatitis, essentially based on findings that the Veteran's skin condition, atopic dermatitis, existed prior to service and had not been show to have been aggravated in service. The Veteran was notified of this rating decision, but did not file an appeal. Thus, the July 1974 RO rating decision became final. It is the last final disallowance of the claim for service connection for atopic dermatitis. The evidence of record at the time of the July 1974 RO rating decision included the Veteran's service medical records and claim for benefits only. The service medical records show that on his enlistment examination in December 1973, clinical evaluation of the Veteran's skin was noted to be abnormal, and it was noted that he had eczema on both elbows and the chest. A notation dated in January 1974 appears to indicate that a letter from a dermatologist had been received which noted atopic dermatitis, that had an onset in 1972, and that he claimed the skin problems recurred only with the onset of cold weather and lasted several days, and only cleared with steroids. It was noted that the etiology was undetermined. The eczema was listed as a disqualifying defect, but he was recommended for enlistment with a waiver of physical standards. The waiver was granted. In March 1974, the Veteran was seen for atopic dermatitis, and it was noted that he had received a wavier and was having an exacerbation. A dermatologic consultation was conducted in March 1974, and the examiner noted that the Veteran's atopic dermatitis existed prior to entry, was a disqualifying disease for duty, and would need constant dermatologic care. The service medical records further show that the Veteran appeared before a medical evaluation board and it was noted that he had been seen as an outpatient at the Naval Hospital for a chief complaint of itching neck and anticubital fossa. He had a lifelong history of atopic dermatitis, and had come to sick call for treatment. Because of the current exacerbation and his inability to receive the smallpox immunization, it was recommended he be discharged due to disability existing prior to entrance to service. The medical board concluded that the Veteran's condition existed prior to enlistment, and that he did not meet the minimal requirements for enlistment. In the medical board report dated in April 1974, it was noted that the Veteran's atopic dermatitis existed prior to entry and was not aggravated by service; and that he was to be discharged as "enlisted in error." Evidence submitted subsequent to the RO's July 1974 decision includes the Veteran's statements and testimony at a hearing in September 2009. In an August 2007 statement, the Veteran indicated that in 1974 he wanted to join the Navy, but that he sometimes got a rash above his eyelids, on his neck, and between his arms. He reported that his recruiter sent in a waiver request, which was signed, and he went to boot camp in Orlando, Florida. He claimed he was doing well, but that the hot weather brought back the rash and, when it got really bad, he went to sick call and was told he was not supposed to be in the Navy. He claimed he was then sent to a holding camp and was discharged. He claimed he did not know he was being discharged due to medical reasons, or he wouldn't have signed the discharge papers. He indicated that after he put cream on the rash, it went away in one day. At the RO hearing in September 2009, the Veteran testified that he had problems with his skin prior to service. He testified that during hot months he developed a rash on the elbow, on the neck, and on his eyelids, and that the doctor gave him cream, which made the rash go away within one day. He testified that condition went into remission when he was about 14 years old and then came back when he started service. He indicated that when he went into service, he went from a relatively cooler climate in Connecticut to a warmer climate in Florida, and he experienced a flare of symptoms, including a rash all over his neck and above his eyes. The Veteran claimed that his skin condition was aggravated by service, including all the exercising and marching in hot weather. In considering evidence submitted after the RO's July 1974 rating decision, the Board notes that while it is clear that the Veteran's atopic dermatitis existed prior to service, there has been no competent evidence submitted to show that the preexisting atopic dermatitis was aggravated during service. The new evidence in this case consists of the Veteran's statement and testimony, in which he claims his skin condition became dormant at age 14 and was aggravated during service due to the hot weather in Florida. He also indicates that he had a flare of his atopic dermatitis in service, but that he was used cream and the rash resolved within a day. To the extent that any of those contentions are not cumulative, they are new evidence. And, they are presumed credible for the purpose of determining whether they are material. However, while his statements are presumed credible, he is not shown to have expertise in determining whether a skin condition worsened or was aggravated during service. The Veteran is competent to report on his skin symptoms and experiences in service, as a layperson. However, without the appropriate medical training or expertise, he is not competent to render a probative opinion on a medical matter, to include whether he has a current skin disability that was aggravated in service. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Accordingly, where, as here, the claim turns on a medical matter, unsupported lay statements, even if new, cannot serve as a predicate to reopen a previously disallowed claim because they are not competent evidence. Moray v. Brown, 5 Vet. App. 211 (1993). Thus, that new evidence as it relates to the atopic dermatitis does include competent evidence address the bases on which the claim was previously denied, the lack of competent evidence showing aggravation of the preexisting skin disability during service. Therefore, that new evidence would not reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board concludes that new and material evidence to reopen the claim for service connection for atopic dermatitis has not been received and the benefits sought on appeal remain denied. ORDER New and material evidence has not been received to reopen the previously denied claim of entitlement to service connection for atopic dermatitis, and the appeal is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs