Citation Nr: 1326521 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 06-38 489 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an effective date prior to January 30, 1990, for the grant of service connection for a rash of the groin and forehead. 2. Entitlement to service connection for neurogenic dermatitis of the bilateral feet, claimed as toe nail disease, to include as due to herbicide exposure. 3. Entitlement to service connection for neurogenic dermatitis of the bilateral hands, claimed as finger nail disease, to include as due to herbicide exposure. WITNESSES AT HEARING ON APPEAL Veteran, Veteran's wife ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran had active duty service from August 1966 to August 1968, including combat service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2002 rating decision of the Huntington, West Virginia Regional Office (RO) of the Department of Veterans Affairs (VA) which granted the Veteran's claim for service connection for a rash of the groin and forehead. An initial noncompensable rating was assigned, effective March 24, 1994. An October 1996 rating decision assigned an initial rating of 10 percent for a rash of the groin and forehead, effective September 19, 2003. The Veteran also appeals from a February 2008 rating decision which denied the Veteran's claims for service connection for bilateral neurogenic dermatitis of the feet and hands. In October 2009, the Veteran withdrew his Power of Attorney (POA) appointing private counsel to represent him in the instant matters. The Veteran testified before a Decision Review Officer (DRO) at a September 2003 DRO hearing. In addition, he testified before the undersigned Acting Veterans Law Judge at a November 2010 RO (Travel Board) hearing. Hearing transcripts have been associated with the claims file. In a May 2011 decision, the Board, in part remanded these issues for additional development to include providing the Veteran with an opportunity for a hearing for the issues of entitlement to service connection for neurogenic dermatitis of the bilateral feet, claimed as toe nail disease and neurogenic dermatitis of the bilateral hands, claimed as finger nail disease. The Veteran subsequently did not indicate that he wanted a hearing for these issues. A September 2012 rating decision found clear and unmistakable error regarding the effective date of March 24, 1994 that was assigned for his service-connected rash of the groin and forehead. The RO granted an earlier effective date of January 30, 1990 for his service-connected rash of the groin and forehead. However, as the Veteran has not indicated that this earlier effective date satisfies his appeal, the claim for an earlier effective date remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The issues of entitlement to service connection for neurogenic dermatitis of the bilateral feet, claimed as toe nail disease, and neurogenic dermatitis of the bilateral hands, claimed as finger nail disease, to include as due to herbicide exposure 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. Service connection for a skin disease was denied in a September 1984 Board decision. 2. A claim to reopen the claim for service connection for a rash of the groin and forehead was not received prior to January 30, 1990. 3. The Veteran's claim for service connection for a rash of the groin and forehead was reopened on the basis of new and material evidence, other than service department records, that was received more than one year after the September 1984 Board decision. CONCLUSION OF LAW The criteria for an effective date earlier than January 30, 1990, for the award of service connection for a rash of the groin and forehead have not been met. 38 U.S.C.A. §§ 1101, 5103, 5107, 5110 (West 2002); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice 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. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board notes that the request for an earlier effective date is a downstream issue from the grant of the benefit sought, which was initiated by a notice of disagreement. The Court has held that, as in this case, once a notice of disagreement from a decision establishing service connection and assigning the rating and effective date has been filed, the notice requirements of 38 U.S.C.A. §§ 5104 and 7105 control as to the further communications with the appellant, including as to what "evidence [is] necessary to establish a more favorable decision with respect to downstream elements...." Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Moreover, the resolution of the Veteran's appeal for an earlier effective date is also dependent on the Court's interpretation of the law and regulations pertaining to claims for VA benefits. Consequently, no further development under the VCAA is warranted. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see generally Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith v. Gober, 14 Vet. App. 227, 231- 32 (2000); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law). Additionally, the record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Also of record and considered in connection with the appeal are the various written statements provided by the Veteran as well as his testimony and his wife's testimony on his behalf. The Board finds that no additional RO action to further develop the record on the claims is warranted. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Laws and Regulations The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012) and 38 C.F.R. § 3.400 (2012). Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. In cases of reopened claim, the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (2012). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a). 38 C.F.R. § 3.155 provides that any communication or action indicating intent to apply for one or more VA benefits may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). VA is required to identify and act on informal claims for benefits. 38 U.S.C.A. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). See also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2012). Factual Background and Analysis The earliest document that can be construed as a claim for service connection for a skin problem is the Veteran's VA Form 21-526, Veteran's Application for Compensation and Pension which is date-stamped as having been received by the RO on May 21, 1981. A July 1981 rating decision denied service connection for a skin condition. The Veteran was notified of the denial in a letter dated August 5, 1981. The Veteran did not file any documents evidencing disagreement with the rating action within a year of the July 1981 rating decision. In correspondence received by the RO on August 30, 1982, the Veteran filed a request to reopen a claim for service connection for a skin disability. In a September 1982 rating decision, the RO confirmed and continued the denial of service connection for residuals of Agent Orange exposure. In a letter received by the RO on November 12, 1982, the Veteran submitted a notice of disagreement with the September 1982 rating decision. In a January 1984 decision, the Board remanded the issue of service connection for residuals of Agent Orange, to include cysts, a skin disorder, an acquired psychiatric disorder and a gallbladder condition for additional development. In a September 1984 decision, the Board denied the Veteran's claim for service connection for residuals of Agent Orange, to include cysts, a skin disorder, an acquired psychiatric disorder and a gallbladder condition. A September 1984 letter notified the Veteran of the decision and enclosed a copy of the decision. Board decisions are final 38 U.S.C.A. §§ 7103(a), 7104(b) (West 2002); 38 C.F.R. § 20.1100. In a letter received by the RO on December 19, 1985, the Veteran noted that he had yet to receive a response for his claim to reopen his claim for service connection that he filed in 1982. He noted that since he filed his claim to reopen, he had moved from Clarksburg, West Virginia to Martinsburg, West Virginia. In a letter dated December 27, 1985, the RO informed the Veteran that in a September 1984 decision, the Board upheld the prior rating decision denying the Veteran's claim for service connection. In correspondence received by the RO on January 30, 1990, the Veteran filed a request to reopen a claim for service connection for a skin rash due to Agent Orange. In an August 5, 1993 rating decision, the RO deferred the issue of service connection for a skin rash. In a correspondence received by the RO on August 6, 1993, the Veteran noted that he wished to file a notice of disagreement with the decision to deny him for his skin rash. In a March 1994 rating decision, the RO confirmed and continued the previous denial of service connection for a skin condition secondary to Agent Orange. In a letter received by the RO in January 1995, the Veteran submitted a Notice of Disagreement with the decision to deny him service connection for a skin disorder. In an April 2000 decision, the Board reopened and remanded the Veteran's claim for a skin rash disorder, to include as secondary to Agent Orange exposure. A March 2002 rating decision granted service connection for rash of the groin and forehead, with an effective date of March 24, 1994. The RO indicated that March 12, 2003 was the date that the Veteran's claim to reopen was received. As noted above, in a September 2012 rating decision, the RO granted an earlier effective date of January 30, 1990 for his service-connected rash of the groin and forehead. The Board notes that the effective date of an award of service connection based on new and material evidence received after a final adjudication will be the later of the date entitlement arose or the date of receipt of the reopened claim unless the new and material evidence consists of service department records, in which case the effective date will be the later of the date entitlement arose or the date of receipt of the earlier claim. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Based upon the evidence of record, the Board finds entitlement to an earlier effective date prior to January 30, 1990, for the grant of his service-connected rash of the groin and forehead is not warranted. The Board notes that the record reflects that the Veteran did not file and pursue a claim with regard to his rash of the groin and forehead between September 1984 and January 1990. While the Veteran submitted a letter to the RO regarding this disability that was received on December 19, 1985, this was a correspondence to inquire about the status of his claim for service connection that he filed in 1982 as he was unaware that the Board had denied service connection for this claimed condition in its September 1984 decision. Notably, after being informed of the Board's September 1985 denial, the Veteran did not file or pursue a claim related to this issue until he filed his claim to reopen on January 30, 1990. Because the September 1984 Board decision is final, under the applicable statutes and regulations, the effective date of service connection is therefore correctly assigned as January 30, 1990, the date of receipt of the reopened claim. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. The Board has also determined that the record does not contain evidence of an unadjudicated formal or informal claim for entitlement to service connection for a rash of the groin and forehead, prior to January 30, 1990. An effective date prior to the date of the reopened claim (January 30, 1990) is not warranted. 38 C.F.R. § 3.400. Based on 38 U.S.C.A. § 5110(a), the RO assigned the earliest effective date for the grant of service connection for a rash of the groin and forehead permitted under the law. 38 C.F.R. § 3.400(b). Under the applicable statutes and regulations, the effective date of service connection is therefore correctly assigned as January 30, 1990, the date of receipt of the reopened claim. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. As described in detail above, the preponderance of the evidence is against the Veteran's claim for an earlier effective date. The Veteran's claim must be denied on that basis. ORDER Entitlement to an effective date prior to January 30, 1990, for the grant of service connection for a rash of the groin and forehead is denied. REMAND 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). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The threshold for finding a link between current disability and disease or injury in service is low. McLendon v. Nicholson, 20 Vet. App. 79 (2006). If the medical evidence of record is insufficient, or, in the opinion of the Board, of doubtful weight or credibility, the Board is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. However, it is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board notes that the Veteran underwent a VA examination for skin disease in December 2007. The VA examiner diagnosed the Veteran with avulsion to a majority of the fingernails and toenails. The examiner noted that a consultation with a staff dermatologist revealed that this condition might have begun as a fungal infection. However, in a December 2007 addendum opinion, a VA dermatologist noted that based on the "new" nail growing in and signs of trauma (blood), the Veteran was in fact inflicting this damage to his nails. In its February 2008 rating decision, the RO denied service connection for neurogenic dermatitis of the bilateral feet and bilateral hands on the basis that the December 2007 VA dermatologist determined that the Veteran's current skin conditions were self-inflicted rather than being the result of herbicide exposure. However, a more recent January 2010 VA treatment note indicated that the Veteran had diabetic microangiopathic disease resulting in finger and toe nail deformities. Additionally, a September 2010 VA treatment note reported that the Veteran had a history of diabetic microangiopathic disease that affected both his toe nails and finger nails. The Board notes that the Veteran is service-connected for diabetes mellitus. As there is potential evidence of a current skin condition of the bilateral hands and bilateral feet related to the Veteran's service, to include as secondary to his service-connected diabetes mellitus, a new VA examination is needed to resolve the claims of service connection for a skin condition of the bilateral toes and bilateral hands, to include as secondary to herbicide exposure and as secondary to service-connected diabetes mellitus. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. The Veteran should be scheduled for a VA dermatological examination to determine the etiology of the claimed skin condition of the bilateral toes and bilateral hands. Based on a review of the record and an examination of the Veteran, the physician should offer an opinion for each disability as to whether the Veteran has a skin condition of the bilateral toes or bilateral hands, and if so, whether it is at least as likely as not (50 percent probability or greater) that the disabilities are proximately due to or were aggravated by the service-connected diabetes mellitus disability, or are proximately due to the Veteran's conceded herbicide exposure. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available to the physician for review of the case. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. 3. Thereafter, readjudicate the claims. If any determination remains unfavorable to the Veteran, issue a supplemental statement of the case before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ NANCY RIPPEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs