Citation Nr: 1324512 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 08-16 943 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim for service connection for chloracne, to include as due to herbicide exposure. 2. Entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Evan M. Deichert, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to April 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In April 2011, the Veteran testified in a video conference hearing before the undersigned Acting Veterans Law Judge. A transcript of this hearing is of record. A review of the procedural history of the Veteran's claims is instructive. In a May 2007 rating decision, the RO granted service connection for diabetes, assigning a 10 percent disability rating. The Veteran filed a notice of disagreement with the rating assigned, and in an April 2008 rating decision, the RO increased his rating to 20 percent, effective the date of his original claim. The Veteran's claim for a TDIU was denied in a June 2009 rating decision. A March 2010 rating decision denied entitlement to service connection for chloracne on the basis that new and material evidence had not been submitted. In an April 2012 decision and remand, the Board considered 10 issues; only the three listed above remain on appeal. Specifically, the Board denied the Veteran's claim to reopen his previously denied claim for service connection for chloracne, and it remanded the Veteran's claims for an increased initial rating for diabetes and for a TDIU. The Veteran appealed the denial of his claim to reopen to the Court of Appeals for Veterans Claims (Court). In January 2013, the Court approved a Joint Motion for Remand that vacated the portion of the Board's decision dealing with this claim only and remanded it to the Board for further development. The Board recognizes that where a case has been remanded to the Board, the order of the Court constitutes the law of the case, and the Board is bound to follow the Court's mandate. See Winslow v. Brown, 8 Vet. App. 469, 472 (1996). The issues of entitlement to an increased initial rating for diabetes and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a May 2007 rating decision, the RO denied service connection for chloracne to include as due to exposure to herbicides; the Veteran did not initiate an appeal of that decision. 2. No new evidence associated with the claims file since the May 2007 rating decision, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim for service connection for chloracne or raises a reasonable possibility of substantiating his claim. CONCLUSION OF LAW New and material evidence to reopen the Veteran's claim for service connection for chloracne, to include as due to herbicide exposure, has not been submitted. 38 U.S.C.A. §§ 5107, 5108 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and to Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. A September 2009 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b)(1). This letter defined new and material evidence, and it informed him of what evidence would be necessary to substantiate the element of the claims for service connection that was found insufficient in the previous denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The claim was subsequently readjudicated, most recently in a July 2010 statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield, 444 F.3d at 1333-34. The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration disability determination, and the records considered in that determination, were also obtained and associated with the claim file. 38 C.F.R. § 3.159(c)(2). The Veteran was not afforded a VA examination with respect to his claim to reopen. In claims to reopen, however, VA's duty to provide a medical examination is not triggered unless the Board reopens the Veteran's claim. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010) (citing 38 C.F.R. § 3.159(c)(4)(iii)) ("[VA's] duty to assist in providing a medical examination does not attach unless the claim is reopened."). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claim file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicolson, 19 Vet. App. 473, 486 (2006); Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). II. New and Material Evidence Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002). In this case, the Veteran contends that the RO erred in refusing to reopen and grant his previously denied claim for service connection for chloracne. He asserts that on the basis of evidence he has now submitted, he meets the legal and factual criteria for service connection. For the reasons that follow, his claim shall be denied. The Veteran's claim for service connection for chloracne had previously been considered and denied in rating decisions of July 2003, July 2004, and November 2004; these decisions all found that there was no evidence of a skin condition during the Veteran's active service, at his separation examination, or within a year of his separation from military service. In January 2005, the Veteran filed a Notice of Disagreement with the November 2004 rating decision. A statement of the case was issued in February 2005, but the Veteran did not submit a substantive appeal. Therefore, the Veteran did not appeal the November 200 rating decision, and it became final. In December 2006, the Veteran filed a claim to reopen his claim for service connection for a skin disability. In a May 2007 rating decision, the RO found that new and material evidence has not been submitted to reopen his claim. This finding was based on the fact that there was no evidence of a claimed skin condition during the Veteran's military service, at his separation examination, or within a year of his separation from military service. As the Veteran did not appeal the May 2007 rating decision, that decision is now final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Veteran filed the claim at issue here in July 2009. 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only 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 has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). Evidence received after the May 2007 rating decision included an October 2008 VA dermatology note in which the Veteran was diagnosed as suffering from dermatitis. The physician also noted that the Veteran did not have a history of skin cancer. However, the subsequently received evidence is either cumulative or redundant of the evidence previously of record, or it does not raise a reasonable possibility of substantiating the claim. Much of the evidence is cumulative or redundant in that it merely demonstrates that the Veteran has current diagnosis of dermatitis. There is no evidence that relates to an unestablished fact necessary to substantiate the claim, namely that any skin disability occurred in or was caused by service. Overall, there is no medical evidence or opinion suggesting that the Veteran's current skin disability is in any way related to his service, to include as related to Agent Orange exposure. The Board notes that dermatitis is not among the conditions where presumptive service connection is granted as a result of exposure to Agent Orange. Although the Veteran indicated in his April 2011 hearing that he believed that his current skin disability is related to Agent Orange exposure in service, the Veteran is not competent to provide an opinion as to etiology and as such, his statements cannot serve as a basis for the reopening of a previously denied claim. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In the January 2013 Joint Motion, the parties specifically instructed that the Board address an August 2004 VA treatment record, noting that this record found that the Veteran had "chloracne-like scars" on his body. The evidence identified by the Joint Motion is an August 2004 nurse practitioner note. The record reflects that the Veteran's skin "showed chloracne-like scars on his mid-abdomen, trunk, waist line, and axillae." There was no color change, itching, rash, moles, hair change, nail change, infections, or tumors. The active problems list included "jungle rash which was in vesicles that came up right after Vietnam." It stated that it is likely chloracne from the Veteran's exposure to Agent Orange. First, this evidence is not new. The August 2004 VA treatment record predates two rating decisions, the first in November 2004 and the second in May 2007. Though neither decision explicitly lists that this information was considered in the decision, ROs are not required to specifically mention in their rating decisions the evidence they considered; instead, it is presumed that they reviewed all relevant evidence in the claims file. Gonzales v. West, 218 F.3d 1378, 1380 (Fed. Cir. 2000). Given that this evidence predates two previous final denials, it cannot be considered new. Second, even assuming that this evidence was not previously considered by agency decision makers and is deemed new, it is not material. The Veteran underwent an Agent Orange examination in April 2004. The exact language contained in the August 2004 record was first noted in this earlier, April 2004 examination. That April 2004 examination was explicitly considered in the July 2004 and November 2004 rating decisions. The August 2004 record is thus devoid of information that was not previously considered; it is duplicative and therefore not material. Under these circumstances, the Board must conclude that new and material evidence to reopen the claim for service connection for chloracne has not been received, and the rating decisions of November 2004 and May 2007 remain final. As the veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen this finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER New and material evidence has not been presented, and the Veteran's claim for service connection for chloracne remains denied. REMAND The Veteran's remaining claims must be remanded. First, with respect to his claim for an increased rating for diabetes, the Veteran submitted additional information and argument in March 2013. He also stated that he wished for the Agency of Original Jurisdiction to review this evidence. Though his representative submitted a waiver on his behalf, the Board shall not contravene the Veteran's wishes. Second, with respect to the Veteran's claim for a TDIU, though many opinions regarding the Veteran's employability were obtained, these opinions are inadequate. Each opinion considered whether the Veteran's individual disabilities rendered him unable to secure or follow a substantially gainful occupation, but none considered the cumulative effect of his service-connected disabilities on his occupational outlook. Further, none of the opinions referenced the Veteran's educational and occupational background. Additional development is thus required. Accordingly, the case is REMANDED for the following actions: 1. Afford the Veteran a VA examination by a VA examiner who has not previously examined the Veteran to determine: Whether it is at least as likely as not (probability of 50 percent) that the Veteran is unable to secure or to follow substantially gainful employment due to his service-connected disabilities, namely his PTSD, glaucoma, diabetes mellitus, tinnitus, bilateral peripheral neuropathy of the lower extremities, bilateral hearing loss, and renal failure with hypertension? In formulating the opinion, the VA examiner should consider the Veteran's educational level and previous work experience. The Veteran's age and any nonservice-connected disability cannot be considered. The Veteran's file must be made available to the VA examiner for review. 2. Then, readjudicate the appeal. If either benefit sought remains denied, issue a Supplemental Statement of the Case and return the case to the Board. The appellant 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). ______________________________________________ John H. Nilon Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs