Citation Nr: 1324841 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 04-09 923 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for chloracne, to include as secondary to Agent Orange exposure. ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran had active service from June 1966 to April 1970, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision of the Department of Veterans' Affairs (VA), Regional Office (RO), in St. Louis, Missouri. In that decision, the RO denied the Veteran's petition to reopen a claim for service connection for chloracne, as new and material evidence had not been submitted, and denied entitlement to service connection for post-traumatic stress disorder, a nervous condition other than PTSD, and neurodermatitis. In March 2005, the Veteran testified at a hearing before the undersigned at the RO (Travel Board). A transcript of that hearing has been associated with his claims file. The Board remanded the appeal in April 2005, March 2008, and January 2009 for additional development. In the March 2008 decision, the Board granted service connection for a psychiatric disability, diagnosed as PTSD. In January 2009, the Board granted service connection for residuals of neurodermatitis, namely dermatitis and lichen simplex. In March 2010, the Board denied the petition to reopen the claim for service connection for chloracne, as new and material evidence had not been received. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In a June 2011 Memorandum Decision (Davis, J.) the Court vacated the Board's March 2010 decision and remanded the case for readjudication in compliance with directives specified in the Court's decision. In January 2012, the Board remanded the appeal additional development pursuant to the directives of the June 2011 Memorandum Decision. In April 2012 and April 2013, the matter was remanded again in order to ensure that the January 2012 Board remand directives had been accomplished. In addition to the Veteran's claims file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claim based upon all relevant evidence. FINDINGS OF FACT 1. An October 1996 Board decision denied the Veteran's claim for service connection for chloracne as the evidence did not show that he had that condition or a condition linked to Agent Orange exposure; this decision was upheld in a September 1997 Court of Veterans Appeals decision. 2. The evidence received since the October 1996 rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for chloracne and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The October 1996 Board decision that denied entitlement to service connection for chloracne is final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. §§ 20.1100, 20.1104 (2012). 2. Evidence received since the October 1996 Board decision denying service connection for chloracne is not new and material. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA. As provided by the Veterans Claims Assistance Act of 2000 (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). 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 dated in January 2003, March 2006, February 2009, January and April 2012, and April 2013 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letters also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. The Court vacated the Board's previous decision based on a finding that the Veteran had not received proper VCAA notice. Cf. Sanders v Shinseki, 129 S.Ct. 1696 (2009). The Board has insured compliance with the Court's remand directives by repeatedly remanding the claim until compliant notice was issued. Complete notice was not issued prior to the adverse determination on appeal. However, fully compliant notice was later issued in communications dated in March 2006, January and April 2012, and April 2013, and the claim was thereafter readjudicated. Accordingly, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). The United States Court of Appeals for Veterans Claims has interpreted the provisions of 38 C.F.R. § 3.103(c)(2) as imposing two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). At the Veteran's hearing the issues were identified, including the evidence needed to substantiate the claim. There was a discussion of possible evidence that could substantiate the claims. Thereafter the Board remanded the claim on numerous occasions to insure that the Veteran received proper notice and identified records were obtained. The Board's duties under Bryant have thereby been met. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him by obtaining relevant records providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The claims file contains the Veteran's service treatment records, service personnel records, Social Security Administration disability 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. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. The Veteran has not been afforded a VA examination in connection with his application to reopen the claim for service connection. With respect to this claim; however, the duty to assist does not require an examination prior to reopening. 38 C.F.R. § 3.159(c)(4)(iii). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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). II. New and Material Claim As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Under 38 C.F.R. § 3.156(a), new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means 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). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In order for the evidence to be sufficient to reopen a previously denied claim, the evidence must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The Board may then proceed to the merits of the claim on the basis of all of the evidence of record. In determining whether new and material evidence has been received to reopen a claim, there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination. Id. at 118. Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. at 120 (noting the assistance of 38 C.F.R. § 3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). In this case, the October 1996 Board decision denied the Veteran's claim for service connection for chloracne as the evidence did not show that he had that condition or a condition linked to Agent Orange exposure. This decision was upheld in a September 1997 Court of Veterans Appeals decision. Evidence considered in the October 1996 Board decision included service treatment records, an April 1975 VA psychiatric examination, a June 1984 VA Agent Orange examination, a November 1994 VA examination, undated documents from the Agent Orange Veteran Payment Program, VA treatment records and various private treatment records. He also offered testimony at September 1991 and October 1994 hearings. A June 1966 entrance examination was negative for any relevant abnormalities. The Veteran reported a history of boils in an accompanying Report of Medical History (RMH). Complaints of a skin rash on his left wrist and left groin area were noted in a November 1967 treatment note. An impression of possible "neuroderm" was made. The Veteran complained of an infected penis with painful lesions in an August 1968 treatment note and laboratory results were inconclusive. The March 1970 service discharge examination was negative for any relevant abnormalities and he denied tumors, growths, cysts or cancer in an accompanying March 1970 RMH. Physical examination conduced during the April 1975 VA psychiatric examination noted that the Veteran's skin was normal except for pigmentation on his nose and upper lip. The examiner noted that these black areas of pigmentation were not disabling or present in service. He also noted that he consulted with a VA dermatologist who thought that this condition was likely due to Thorazine use. In a June 1984 VA Agent Orange examination, the Veteran complained of hair loss that he attributed to Agent Orange exposure. He also reported intermittent pimples on his nose that began in 1971 but ceased after 1975. Physical examination showed a hyperpigmented area on his nose and right upper lip as well as a fungal infection on the feet. The impression was tinea pedis. The examiner noted that there was no evidence of ill effects on the Veteran's health due to Agent Orange exposure. A June 1989 VA dermatology treatment note indicated that a physical examination was negative for papules and cysts. An assessment of questionable acne was made. The examiner noted that a diagnosis of chloracne could not be made in the absence of acne and in the absence of ongoing toxin exposure. A provisional diagnosis of scar tissue on the Veteran's nose, elbow and groin was made in a June 1989 VA treatment note. An October 1989 VA treatment note indicates that the Veteran was evaluated for a skin eruption in the pubic area and scaling on his feet. He had claimed that these conditions were related to Agent Orange exposure. An assessment of folliculitis was made and other skin lesions were found. Infected hair follicles were diagnosed in a July 1990 VA treatment note. A 1991 VA treatment note reflects the Veteran's claim of suffering from chloracne related to Agent Orange exposure. Physical examination noted unilocular folliculitis lesions on his right pubic area that had been previously drained. At the September 1991 and October 1994 hearings the Veteran testified as to his history of Agent Orange exposure in Vietnam and subsequent treatment for skin conditions. During the October 1994 hearing, the Veteran testified that he suffered from a dark spot on his wrist and groin area while in Vietnam. Dark spots and blotches had appeared since that time, particularly in the summer months, and eventually dissipated. At a November 1994, VA examination the Veteran reported pimples on his groin and arms every summer for the past 25 years. The examiner noted that the Veteran "refused" to give a detailed history. Physical examination revealed two nevi and one darkly pigmented macular lesion near the posterior thorax. No other skin lesions or pimples were noted other than fresh scratch marks on the right inner arm, which the Veteran reported to be due to recent yard work. The pertinent diagnosis was no chloracne today. A February 1995 VA treatment note reflects the Veteran's reports of a right leg rash for the past six months. Physical examination noted dry, white plague areas over his right posterior femoral area. No vesicles, erythema or similar areas over the elbows or sacrum were noted. A diagnostic impression of eczema rule-out psoriasis was made. An undated letter from the Clerk of the United States District Court in the Eastern District of New York indicates that the Veteran met the requirements for disability payments under the Agent Orange Veteran Payment Program. Evidence received since the October 1996 Board decision includes portions of his service personnel records, VA treatment records, SSA records and private treatment records. The Veteran also offered testimony at the March 2005 RO hearing. A December 1975 VA treatment note reflects the Veteran's complaints of hyperpigmentation over his nose and upper lip since a pimple rupture two years earlier. This document would have been constructively of record at the time of the Board's previous decision. Bell v. Derwinski, 2 Vet. App. 611 (1992). During a May 1989 private psychiatric evaluation the Veteran reported being exposed to metals while working at a manufacturing company, causing him to develop a rash. Complaints of skin lesions on the Veteran's penis were noted in a November 2002 VA treatment note. He reported that these were a little itchy, mildly painful and would eventually progress to large blisters that would rupture and bleed fluid. A diagnosis of recurring skin lesions that appeared to be more herpetic than follicular was made. During a March 2005 hearing, the Veteran testified that he intermittently received treatment for his skin condition at VA. He had pimples that he believed were caused by Agent Orange and that VA had not properly diagnosed. Tinea pedis was noted in a May 2006 VA treatment note. A hyperpigmented lesion was noted o the Veteran's left lower leg in an August 2006 VA treatment note. A September 2006 VA dermatology consultation yielded findings of hyperpigmentation on the lower extremities and lichen plaque on his left ankle. An assessment of lichen simplex chronicus was made. The dermatologist noted that the Veteran was convinced that this condition was chloracne" and that he "reassured" the Veteran. A January 2007 VA dermatology treatment note reports finding of small areas of hypopigmentation and hyperpigmentation on the Veteran's lower extremities. The dermatologist noted improved lichen simplex chronicus and that the hypopigmentation was most likely from post-inflammatory changes. An August 2007 VA dermatology examination report reflects the Veteran's complaints of a rash on the upper part of his buttock for about one month that cleared with antibiotics. He also reported about seven lesions and drained fluid. Following this examination and a review of the Veteran's claims file, the assessments were resolving furunculosis on his buttock and a history of lichen simplex chronicus on his legs without active lesions. The examiner noted that the Veteran did not have a chronic skin condition but might have some episodes of dermatitis that were excoriated to become lichen simplex chronicus in the past. The Veteran's claims file also includes VA treatment records dated through January 2010. These records, however, do not support the Veteran's claim of chloracne related to Agent Orange exposure in the military. Finally, the Veteran has submitted copies of records previously submitted and considered by the Board in 1996. Analysis The additional evidence submitted since the last Board decision does not establish the previously missing elements of a chloracne diagnosis or a link between a current skin conditions (other than those already service connected) and service. His reports regarding exposure to Agent Orange while in Vietnam and on-going symptomatology were considered in the previous decisions and exposure to herbicides was previously conceded. Although the Veteran contends that the submitted evidence supports a diagnosis of chloracne, the record is negative for such a diagnosis. The symptoms reported by the Veteran to be chloracne have consistently been diagnosed as other skin conditions by medical professionals and he has been granted service connection for these conditions. The additional service personnel records that were received are not relevant to the instant claim and therefore cannot serve as the basis to reopen this claim or consider the claim on a de novo basis. Cf. 38 C.F.R. § 3.156(c) (2012). The Veteran has essentially contended that he has current chloracne, but this contention was previously considered. It would take medical expertise to be able to diagnose skin symptoms as chloracne. The Veteran is not shown to have this expertise. Hence, his opinion that he has chloracne is not competent evidence of current chloracne. The Board has also considered whether there are other current skin diseases. The only documented skin conditions are the already service connected dermatitis and lichen simplex. Cf. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (noting that in a claim for service connection a Veteran is seeking service connection for the symptoms of his disability rather than any specific diagnosis). Other skin conditions, such as tinea pedis, were previously considered and rejected. As the additional evidence received since the October 1996 denial does not pertain to current chloracne. The evidence submitted does not relate to an unestablished fact necessary to substantiate the claim. The evidence also would not trigger VA's duty to provide an examination and as such does not raise a reasonable possibility of substantiating the claim. Cf. Shade. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, there is no competent evidence of current chloracne, much less that it might be associated with service. Without such evidence, there is no reasonable possibility of substantiating the Veteran's claim. 38 C.F.R. § 3.156. See also Cornele v. Brown, 6 Vet. App. 59, 62 (1993) (medical evidence which merely documents continued diagnosis and treatment of disease, without addressing other crucial matters, such as medical nexus, does not constitute new and material evidence). The claim for service connection for chloracne is therefore not reopened and the appeal must be denied. 38 U.S.C.A. § 5107(b). ORDER New and material evidence sufficient to reopen a claim of entitlement to service connection for entitlement to service connection for chloracne, to include as secondary to Agent Orange exposure, has not been received, and the appeal is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs