Citation Nr: 1320691 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 04-15 981 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for a low back disability. 2. Whether new and material evidence has been received to reopen a claim of service connection for a skin disease, to include as secondary to herbicide exposure. 3. Entitlement to service connection for a skin disease, to include as secondary to herbicide exposure. 4. Entitlement to service connection for an acquired psychiatric disability other than posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from November 1965 to December 1968, including service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in July 2002, February 2003, and September 2003 of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran had requested the opportunity to appear and offer testimony at a hearing before the Board. A Video Conference hearing was duly scheduled in October 2012. Prior to the hearing, the Veteran submitted a statement asserting that he did not wish to appear in person because of his mistrust of VA and would rather that his designated Veterans Service Organization representative appear in his place. T he designated representative submitted a written statement of facts and arguments in lieu of a live hearing and the scheduled hearing was cancelled. 38 U.S.C.A. § 20.700(b) (providing that a hearing will not normally be scheduled solely for the purpose of receiving arguments from a representative). The Board accepts the written submission of the Veteran's designated representative as a proper substitution for the requested hearing. Although the Veteran has submitted additional documents asserting his request for a hearing "ASAP," he has also indicated that he did not wish to appear in person because of his long-standing distrust of VA. In these circumstances, the Board finds no purpose in scheduling a hearing which the Veteran will not attend; instead, the Board will continue to base its decision on the claims file as currently constituted, including the written arguments submitted by the designated representative in 2012. This case was previously before the Board in July 2006, March 2012, and December 2012, when it was remanded for further development, to specifically include a VA examination and opinion on the Veteran's psychiatric disability. Inasmuch as the opinion provided was inadequate, the claim with respect to acquired psychiatric disability other than PTSD must again be remanded to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The issues of entitlement to service connection for a skin disability and service connection for an acquired psychiatric disability are REMANDED to the RO via the Appeals Management Center in Washington, D.C. The Veteran will be notified if further action on his part is required. FINDINGS OF FACT 1. A Board decision in December 2000 declined to reopen a previously denied claim of service connection for a low back disability 2. Evidence received since the December 2000 Board decision has not raised a reasonable probability of substantiating the claim for service connection nor did it relate to the basis of the previous denial of service connection for a low back disability. 3. A Board decision in March 2000 declined to reopen a previously denied claim of service connection for a skin disease, to include as secondary to herbicide exposure. 4. Evidence received since the March 2000 Board decision relates to the basis of the previous denial of service connection and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The Board decisions issued in March 2000 and December 2000 denying reopening of service connection claims for a skin disease and for a low back disability, respectively, are final. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.156, 20.1100(a) (2012). 2. Evidence received with respect to the claim of service connection for a low back disability is not new and material and the claim may not be reopened. 38 U.S.C.A. §§ 5107(b), 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. Evidence received with respect to the claim of service connection for a skin disease, to include as secondary to herbicide exposure is new and material and the claim may be reopened. 38 U.S.C.A. §§ 5107(b), 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Duty to Notify Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In claims to reopen, VA must both notify a claimant of the evidence and information necessary to reopen the claim, as well as the evidence and information required to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy the above requirement, the Secretary must consider the bases for the denial in the prior decision and provide the claimant with a notice letter describing what evidence would be necessary to substantiate those elements required to establish service connection that were previously found insufficient. Here, the Veteran was sent letters in August 2003, July 2006, and December 2009 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. The July 2006 letter also discussed the need for new and material evidence to reopen previously denied claims and the basis for the prior denials. Accordingly, no further development is required with respect to the duty to notify. Complete notice was not issued prior to the adverse determination on appeal. However, fully compliant notice was later issued in a July 2010 communication, and the claim was thereafter readjudicated in May 2013. Accordingly, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, as is the brief filed in lieu of hearing by the Veteran's representative in October 2012. As part of the December 2012 remand instructions, the RO/AMC was directed to request a signed release for additional medical records which might be relevant to the Veteran's low back and skin claims. In a letter sent in January 2013, the Veteran was provided with a release form and asked to sign and submit it, to enable VA to obtain relevant treatment records. The Veteran has not responded to this request, despite submitting multiple additional pleadings and statements. The Board finds that there has been substantial compliance with the remand directives and that there is no other available outstanding evidence which has been identified. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street"); 38 C.F.R. §§ 3.159(c)(1)(i), (c)(2)(i) (requiring a claimant to cooperate fully with VA's efforts to obtain federal and non-federal records). For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Legal Standard for Reopening a Claim Unless reconsideration is ordered by the Board Chairman, Board decisions are final when issued. 38 C.F.R. § 20.1100(a). Generally, a claim denied in a Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7104(b). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. "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. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In determining whether the submitted evidence is new and material, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. In order that the additional evidence may be considered new and material, the evidence must relate to the basis for the prior denial of that claim. Evidence Previously Considered Low Back Claim The Veteran's original claim of service connection for a low back disability was denied in a Board decision in April 1988 based on a finding that the single incident of low back pain in service was acute and transitory and had resolved without residuals. A subsequent Board decision of April 1990 declined to reopen the previously denied claims, noting that the evidence of record showed only onset of back pain in the 1980s and that the Veteran's stated history to his physician of bad parachute landings in service were not supported by the evidence. The evidence considered at the time of the September 2000 Board decision declining to reopen the claim of service connection for the low back due to a lack of new and material evidence included medical evidence of treatment for back pain and arthritis of the lumbar spine and the Veteran's insistence that his low back disability was due to a bad parachute landing in 1966. The claim was denied on each occasion because there was no evidence of nexus or of a causal relationship between the Veteran's military service and his low back pain. Evidence Newly Submitted Since the September 2000 decision, the Veteran has submitted a plethora of documents which have been added to the claims file. In addition, ongoing VA treatment records and correspondence have also been included in the file. However, none of the submissions is within the definition of new and material evidence. Indeed, most of the Veteran's submissions are duplicative, if not identical, to his submissions prior to the 2000 Board decisions and to each other. The Veteran is adamant about addressing a statement made in the 1986 Board decision, copies of which have been submitted countless times since, which he believes should be removed from the record. Unfortunately, this request cannot be granted and it is not relevant to the claim on appeal here. A VA treatment record shows that in August 2001 the Veteran was seen for pain in the low back, which X-rays showed were related to the degenerative changes in his dorsal and lumbar spine. At that time, he continued to provide the history of a bad parachute landing in service as the source. In a November 2003 submission to VA, the Veteran argued that his back pain was worsening with radiating pain down his hip and leg to the point that he could hardly walk. The Veteran has not addressed the claim for his low back disability beyond stating again that it was due to a rough parachute landing for which he never sought follow-up treatment in order to maintain his duty assignment. Analysis In this instance, while the Veteran has filed a plethora of additional documents and written statements and arguments and copies of prior decisions and medical records, he has not submitted evidence which meets the definition of new and material with respect to his claim of service connection for a low back disability. Many of the documents submitted are identical to those already of record. Even in the new statements and assertions, he has continued to assert the same incident in service is responsible for his current back pain; this incident was considered in the previous denial of reopening. As such, the information provided does not meet the definition of new, in that it does not contain any additional details that were not previously considered in adjudicating the claim. In addition, the newly submitted evidence is not material to the claim of service connection for a low back disability. As noted, most of it pertains to either his PTSD claim, which has been granted, or to the language used in a previous decision which is part of the record before the Board. It does not raise any reasonable possibility that the Veteran's claim could be substantiated nor does it pertain to the basis for the previous denial. Cf. Shade. As the evidence that has been submitted is neither new nor material, there is no basis for reopening the previously denied claim of service connection for a low back disability. 38 U.S.C.A. § 7104(b). Skin Disease Claim The Veteran's original claim of service connection for a skin disease, to include as due to herbicide exposure, was denied by a Board decision issued in March 2000. At that time, the evidence considered included the service medical records, including a finding of skin rash in 1966 and herpes in 1968, both of which apparently resolved with no evidence of residuals. The Board decision included considerations of both direct service connection and service connection on a presumptive basis as due to herbicide exposure, a consideration which did not apply because the Veteran did not manifest with skin cancer or chloracne. The claim was denied because there was no evidence of a nexus or a causal relationship between the Veteran's military service and his subsequent skin rash. Evidence Newly Submitted In November 2007, the Veteran submitted a written statement with respect to his claim of service connection for skin disease. He stated that he had served in the Republic of Vietnam and was currently suffering from a form of skin rot with odor in the groin area and the area above the ankles. He asserted that this was a tropical disease normally manifested in Vietnam which had been incubating in the cooler climate where he lived. Analysis In reviewing the new evidence, namely the statement submitted by the Veteran in November 2007, the Board notes that the Veteran is asserting exposure to a fungal agent or other tropical skin disease during his service in Vietnam. The statements provided by the Veteran regarding the conditions of his service and the current symptoms and manifestations of skin disease were not previously considered in adjudicating the claim. As such, they are new evidence. In addition, they address the previously unestablished aspect of the claim, that is, evidence of an incident in service which might be related to a current disability. And it meets the standard of Shade by triggering the duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Thus, the statements constitute new and material evidence and are sufficient to allow the reopening of the claim. 38 C.F.R. § 3.156. ORDER New and material evidence not having been received with respect to the claim of service connection for a low back disability, the claim may not be reopened and the appeal is denied. New and material evidence having been received with respect to the claim of service connection for a skin disease, the claim is reopened and, to that extent, the appeal is granted. REMAND The decision above grants reopening of the claim of service connection for a skin disability, to include as secondary to herbicide exposure based on the receipt of new and material evidence. However, further development of the claim is necessary before a decision on the merits may be rendered. Specifically, the Veteran should be afforded a VA examination to determine the nature and etiology of any ongoing skin disease. Under 38 C.F.R. § 3.159(c)(4), a VA examination or opinion is necessary if the evidence of record: (A) contains competent evidence that the Veteran has a current disability, or persistent or recurrent symptoms of disability; and (B) establishes that the Veteran suffered an event, injury or disease in service; (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability, but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Here, the existence of a current skin disability as asserted by the Veteran, who is competent to provide evidence regarding symptoms he experiences, and the exposure to herbicides and treatment for skin problems in service is sufficient to meet the low threshold standard of McLendon. In December 2012, the issue of entitlement to service connection for an acquired psychiatric disability other than PTSD was remanded for a VA examination and opinion. In rendering this opinion, the examiner was asked to specifically "acknowledge and comment on all psychiatric diagnoses other than PTSD provided since September 2000, all of the Veteran's reported stressors in service, and his reports of psychiatric symptoms in the years since service." While the examiner rendered an opinion that the Veteran's psychosis was not due to his military service, because by his own account the symptoms began two or three years after service, the examiner did not address the specific items requested by the Board. By law, a remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In Stegall the Court held that "where . . . the remand orders of the Board . . . are not complied with, the Board itself errs in failing to insure compliance." Id. Inasmuch as the VA examiner did not address the other psychiatric diagnoses given since 2000 or specifically discuss whether the current diagnosis of psychosis or any of the previous diagnoses were related to any of the stressors described in service, the opinion is inadequate. An addendum opinion should be sought on remand. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA psychiatric examination to determine whether he has any current psychiatric disability other than PTSD; and if so, whether the disability is related to service. All indicated tests and studies should be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should answer the following question: Is it at least as likely as not (50 percent probability or more) that any current psychiatric disability other than PTSD (any psychiatric disability other than PTSD diagnosed since September 2000) had its onset in service, had its onset in the year immediately following service, is related to the Veteran's reported stressors in service, or is otherwise the result of a disease or injury in service? In answering this question, the examiner should acknowledge and comment on all psychiatric diagnoses other than PTSD provided since September 2000, all of the Veteran's reported stressors in service, and his reports of psychiatric symptoms in the years since service. For purposes of the above opinion, the Veteran's reports of stressors in service should be presumed to be accurate. The examiner must provide reasons for each opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The absence of evidence of a particular stressor or of treatment for psychiatric problems in the Veteran's service records cannot, standing alone, serve as the basis for a negative opinion. The examiner is advised that the Veteran is competent to report stressors in service, his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 2. Afford the Veteran an appropriate VA dermatological examination to determine whether he has - or at any time since 2001, has had - a skin disease, to include a tinea infection or rash or dermatitis. The examiner should identify any and all such skin disease(s) and should state for each diagnosis identified whether it is at least as likely as not (probability 50 percent or greater) the result of his military service, to include exposure to herbicides such as Agent Orange and exposure to tropical diseases in Vietnam. The examiner should review the claims file in its entirety, to specifically include service treatment records. The examiner should comment on any specific medical record in the claims file used to formulate an opinion. The examiner should provide the rationale for any opinion rendered. If however after a review of the record, an opinion on causation is not possible without resort to speculation, the examiner is asked to clarify whether actual causation cannot be determined because there are multiple potential causes, when one cause is not more likely than any other to cause the Veteran's disability and that an opinion on causation is beyond what may be reasonably concluded based on the evidence of record and current medical knowledge. 3. If any benefits sought on appeal are not granted, the agency of original jurisdiction should issue a supplemental statement of the case and return the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the 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). ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs