Citation Nr: 1324466 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 11-10 551 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a skin disability, to include manifestations on the bilateral upper extremities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran had active service in the United States Army from June 1946 to May 1947. This matter comes before the Board of Veterans' Appeals (Board) from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which denied a reopening of the claim for entitlement to service connection for a skin disability (to include as manifesting in the upper extremities). A January 2011 rating decision confirmed this denial. The claim has been before the Board on a separate occasion, and an expert opinion from a Veterans Health Administration (VHA) physician was sought in June 2013. The opinion is associated with the claims file. The Veteran's entire claims file, to include the portion contained in the electronic "Virtual VA" system, was reviewed. FINDINGS OF FACT 1. The Veteran was denied service connection for a skin disability in an August 1947 rating decision; this decision was unappealed, and is final. 2. The Veteran's claim for entitlement to service connection for a skin disability was reopened in February 2008 by the RO, and denied on the merits; a substantive appeal was not received, and it is final. 3. Evidence received since the last final decision of record relates specifically to an unestablished fact necessary to substantiate the underlying claim for service connection. 4. The evidence demonstrates that the Veteran experiences some form of skin disability as a result of sun exposure in military service. CONCLUSIONS OF LAW 1. New and material having been received, the claim for service connection for a skin disorder is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 2. Entitlement to service connection for a skin disability is warranted. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In general, decisions of the agency of original jurisdiction (the RO) or the Board that are not appealed in the prescribed time period are final. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. 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 that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. See Knightly v. Brown, 6 Vet. App. 200 (1994). Evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence had been presented), will be evaluated in the context of the entire record. See Evans v. Brown, 9 Vet. App. 273 (1996). 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). In determining whether evidence is new and material, the credibility of the evidence is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010) (stating that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim is a component of the question of what is new and material evidence, rather than a separate determination). Additionally, the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Id. Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For the claimed disability, the mere continuity of symptoms is not, in itself, sufficient to establish service connection. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran in this case contends that skin manifestations noted in service have resulted in a current skin disability. He initially was denied service connection in an August 1947 rating decision which was not appealed. At that time, it was noted that a current disability of the skin was not present. The 1947 decision is final. 38 U.S.C.A. §§ 5108 , 7104(b) (West 2002); 38 C.F.R. §§ 3.156 , 20.1100 (2012). Subsequent to this action, the RO reopened the claim in February 2008, noting that there was skin disablement present; however, there was no evidence of a link between current skin manifestations and those noted in active service. A notice of disagreement with this action was filed; however, an appeal was not perfected (no substantive appeal was received after issuance of the statement of the case), and it thus became final within a year of notification to the Veteran. Id. The current claim to reopen was denied in September 2009 on the grounds that new and material evidence had not been submitted, and after subsequent development, was confirmed in a January 2011 rating decision. The Veteran has come forth with his current claim alleging, essentially, that new and material evidence exists to reopen the claim for service connection. There are numerous VA clinical records, as well as March 2010 and January 2012 VA examination reports, which were submitted in connection with the claim to reopen. These reports show that there have been variously diagnosed skin disorders, to include fungal infections, actinic keratosis, Bateman's purpura, seborrheic dermatitis, and seborrheic keratosis among other listed pathologies. The Board, in noting that these conditions may, at least potentially, be related to in-service sun exposure, dispatched the claim for an opinion from a dermatologist with VHA. The returned opinion, discussed in greater detail with regard to the merits of the claim, posited that several of the Veteran's pathologies (actinic keratoses, basal and squamous cell carcinomas, and Bateman's senile purpura) were at least as likely as not related to sun exposure in service. This evidence is new, in that it was not of record at the time of the last denial, and it is material, in that it relates to an unestablished fact necessary to substantiate the underlying claim for service connection. Accordingly, the claim to reopen is granted. See 38 C.F.R. § 3.156. With regard to the merits of the claim, the Board notes that he Veteran served in the occupation forces in Japan following the conclusion of the Second World War as an infantryman. At the time of his service, there was an episode of treatment for a fungal infection of the hands, and the Veteran contends that a current skin disability had causal origins with this pathology. As briefly alluded above, the Board, in noting the Veteran's service and his current skin pathology, dispatched the claim to a dermatologist within the VHA. Prior to sending the claim, it was noted that the circumstances of the Veteran's service would have included being in outdoor environments for extended periods, and that as this occurred in Japan, that there would be significant exposure to tropical or subtropical sunlight. It was asked that the VHA dermatologist review the claim and to opine as to if any of the skin disablement currently noted was related to in-service fungal infection or, alternatively, to sunlight exposure in service. A very detailed opinion was returned from a dermatologist at the VA Medical Center (VAMC) in Madison, Wisconsin. In the report, the dermatologist noted that the Veteran's seborrheic dermatitis, stasis dermatitis, tinea pedis, tinea manum, and dyshidrotic eczema were not likely related to service. However, in reviewing the claims file, the examiner noted that the Veteran had diagnoses of actinic keratoses, Bateman's senile purpura, basal cell carcinoma, and squamous cell carcinoma. The Bateman's purpura, it was noted, was assessed in a VA dermatology visit of March 2008, with manifestations on the forearms. The condition persisted throughout follow-up visits in the next two years. Basal cell carcinoma was present on the left ear in November 2004, and was not noted to be active in subsequent clinical visits. Squamous cell carcinoma had been diagnosed in May 2008, with the malignancy manifesting on the right shin. It was treated and resolved, and was not noted in further dermatology evaluation between 2009 and 2010. Lastly, actinic keratosis was noted to be present on the face in December 2004, with new sites noted in February 2009 and January 2010. Liquid nitrogen treatment was successful, and active keratoses were not present at subsequent visits. The examiner, with regard to the keratoses, carcinomas, and purpura, opined that it was at least as likely as not that these conditions had causal origins associated with exposure to sunlight in active service. Actinic keratoses were described as "the most-common pre-cancerous skin lesions that typically appear in persons over 50 years of age on sun-exposed surfaces of the faces, ears, balding scalp, hands, and forearms." The examiner went on to state that "they are more common in patients who have been exposed to or live in environments with high solar irradiation, such as those found in military service abroad." It was also noted that chronic sun exposure can "weaken blood vessel walls and can cause Bateman's senile purpura." Basal cell carcinoma was noted to be "the most common type of cutaneous cancer" that was "more common in patients who have had frequent intermittent sunburns in their lifetime." Squamous cell carcinoma was noted to be the second-most frequent form of skin cancer, and its presentation was "typically on sun-exposed sites of the scalp, face, and legs, but can affect the arms and legs." These cancers were "more common in patients who have had chronic sun exposure." The examiner noted that there were a plethora of skin conditions present, and provided detailed reasoning for why there was no relation between any of the current disorders and the fungal infections noted in service. The noted disorders of actinic keratoses, basal cell carcinoma, squamous cell carcinoma, and Bateman's senile purpura, were, however, found to be as least as likely as not related to in-service sun exposure, as these disorders are associated with cumulative exposure to sun (particularly in circumstances, such as outdoor service in Japan, where there would be an even greater exposure to high levels of solar irradiation). Essentially, while the examiner did not state that all currently present skin pathology is related to the Veteran's period of active service, she did state that several manifestations were. A claim for service-connected compensation benefits is a claim based on symptoms as opposed to any singular diagnostic entity. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In this regard, while not all of the Veteran's current skin manifestations have been linked to service, actinic keratoses (and, by necessity, any residual disability), basal and squamous cell carcinoma (and, by necessity, any residual disability), and Bateman's senile purpura (and, by necessity, any residual disability), to include the manifestations of these condition on the upper extremities, have been. The examiner explained that these specific manifestations are causally related to sun exposure in service, and the reasoning for such a conclusion was detailed in a comprehensive rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, at least some of the present current skin disablement is related to active service, and the criteria for service connection are thus met. The claim is granted. ORDER New and material evidence having been received, the claim for entitlement to service connection for a skin disability is reopened. Entitlement to service connection for a skin disability, to include manifestations on the bilateral upper extremities, is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs