Citation Nr: 1326825 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 11-19 233 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a skin disability, other than scalp folliculitis, including as a result of exposure to herbicides. 2. Entitlement to service connection for a skin disability, other than scalp folliculitis, including as a result of exposure to herbicides. REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. ATTORNEY FOR THE BOARD H. Seesel, Counsel INTRODUCTION The Veteran had active service from March 1969 until November 1970, including a tour of duty in the Republic of Vietnam from November 1969 until November 1970. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from August 2008 and January 2009 rating decisions of the RO in San Diego, California. During the pendency of the appeal the RO granted service connection for scalp folliculitis in an October 2011 rating decision. The record, however, contains several other diagnoses concerning the skin and the Veteran's main contention is that he has chloracne as a result of his exposure to herbicides. As such, the Board recharacterized the issue on appeal as reflected on the title page. The reopened claim of service connection for a skin disability is being REMANDED and is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The claim for service connection for a skin disability was last denied in an October 2005 rating decision. The Veteran did not appeal the rating decision and it became final. 2. The evidence received since the October 2005 rating decision is new in that it is neither cumulative nor repetitive of facts previously considered and raises a reasonable possibility of substantiating the Veteran's claim. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of service connection for a skin disability. 38 U.S.C.A. §§ 5103, 5103A, 5108, 7105 (West 2002); 38 C.F.R. § 3.156, 20.1103 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Requirements As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Specific to requests to reopen, the claimant must be notified of the criteria required to reopen the claim and the criteria for establishing the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The notice letter provided to the Veteran in April 2008 and September 2008 addressed all notice elements required by Kent. Additionally, in this decision, the Board reopens the claim for service connection for a skin disability. In light of the favorable disposition, the Board finds that further discussion as to VCAA is not required at this time. New and Material Evidence The Veteran seeks service connection for a skin disability, including chloracne. As will be discussed in detail below, the record contains prior final denials of this claim. As such, the Veteran's claim may be reopened only if new and material evidence has been secured or presented since the last final rating decisions. 38 U.S.C.A. § 7104(b); see Glynn v. Brown, 6 Vet. App. 523, 527 (1994). The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims de novo. Barnett v. Brown, 83 F.3d at 1383. Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. Id. 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 evidence not previously submitted to agency decision makers. 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. 38 C.F.R. § 3.156(a). 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. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." 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 ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to assist. 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 determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Finality of Prior Decisions A claim for service connection for a skin disability was initially considered and denied by the RO in a May 1994 rating decision. The Veteran appealed that decision and the Board denied the claim for a skin disorder resulting from exposure to Agent Orange in January 1998. The Board decision has become final. 38 C.F.R. § 20.1104. Subsequently, in April 2005 the Veteran filed a claim to reopen his claim for a skin disability. The RO considered and denied the claim to reopen service connection for cystic acne/chloracne in an October 2005 rating decision. The Veteran did not appeal this decision and it became final. 38 C.F.R. § 20.1103. In March 2008 the Veteran again filed to reopen his claim for service connection for a skin disability. The RO denied the claim in an August 2008 rating decision as no new and material evidence had been submitted. In August 2008 the Veteran submitted a statement in which he requested "to reopen [his] claim for reconsideration of chloracne..." The Veteran argued that VA had failed to follow the procedures of the VCAA and specifically failed to obtain VA outpatient treatment records. In response to the Veteran's August 2008 statement and within the one year appeal period, the RO obtained VA outpatient treatment records from April 2008 until October 2008. A VA physician statement concerning PTSD dated December 2008 was also associated with the claims file. Additionally, the command chronology and duplicate service personal records were also associated with the claims file within this one-year period. As the record reflects that additional evidence was received during the appeal period for the August 2008 rating decision, the Board must determine whether the submissions received contain new and material evidence relating to a pending claim. See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); 38 C.F.R. §§ 3.156(b), 20.201. In the present case, none of these records included treatment concerning the skin disability and therefore are not new and material evidence under 38 C.F.R. § 3.156(b). Under 38 C.F.R. § 20.201, however, a notice of disagreement need not contain specific language and only needs to show terms that can be reasonable construed as a disagreement with the rating decision. Upon reading the August 2008 statement, it is clear the Veteran continued to seek service connection for a skin disability, the exact benefit which was denied in the August 2008 rating decision. Furthermore, the August 2008 statement was submitted within the time constraints for filing a notice of disagreement. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302. Although the Veteran indicated VA should "reconsider" the claim and did not specifically indicate he disagreed with the rating decision, the record is clear that after receipt of the August 2008 rating decision the Veteran was not satisfied with the conclusion that service connection was not warranted. As no special wording is required for a notice of disagreement and the law requires the Board review all issues reasonably raised from a liberal reading of the Veteran's submissions, the Board construes the August 2008 statement as a timely notice of disagreement. 38 C.F.R. § 20.201; Gallegos v. Principi, 283 F.3d 1309, 1313-15 (Fed. Cir. 2002); Fanning v. Brown, 4 Vet. App. 225, 228-29 (1993). Accordingly, the August 2008 rating decision is not final and is the rating decision currently on appeal. While the Board finds that the August 2008 rating decision is not final, as explained above there are prior final rating decisions concerning a skin disability. As such, the Veteran's claim may be reopened only if new and material evidence has been secured or presented since the October 2005 rating decision. 38 U.S.C.A. § 7104(b); 38 C.F.R. § 20.1103; see Glynn v. Brown, 6 Vet. App. 523, 527 (1994). New and Material Evidence since the October 2005 Rating Decision At the time of the October 2005 rating decision that denied service connection for a skin disability, the evidence of record consisted of service treatment records, VA outpatient treatment records, private medical records and lay statements. Subsequent to the October 2005 rating decision, additional VA outpatient treatment records, reports from VA examinations and lay statements were associated with the claims file. The evidence submitted subsequent to the October 2005 rating decision is new, in that it was not previously of record. The newly submitted evidence is also material. The claim was denied by the RO in October 2005 as no new and material evidence had been submitted. The October 2005 rating decision specifically explained that there was no evidence of a diagnosis of chloracne and no evidence of a nexus otherwise linking the diagnosed skin disabilities to service. The evidence received subsequent to the October 2005 decision includes VA outpatient treatment records and an April 2011 VA examination that concluded with a diagnosis of chloracne. As noted, new and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In this case, the Veteran has presented evidence that speaks directly to one element which was not of record, mainly the presence of chloracne. See Kent v. Nicholson, 20 Vet. App. 1, 10 (2006)(finding that "the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied"). As some of the additional evidence received since the October 2005 rating decision relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim, the Board finds that new and material evidence has been submitted. Accordingly, the claim for service connection for a skin disability is reopened. However, as will be explained below, the Board is of the opinion that further development is necessary before the merits of the appellant's claim can be addressed. ORDER As new and material evidence has been submitted to reopen the claim of service connection for a skin disability, the appeal to this extent is allowed subject to the further action as discussed herein below. REMAND Having reopened the claim for benefits, the Board is of the opinion that further development is necessary. Specifically, another VA examination should be obtained. The Veteran seeks service connection for a skin disability and specifically alleges he has chloracne related to his exposure to herbicides during service. In this regard, a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the Veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f) (West 2002). When a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including chloracne and other acneform diseases consistent with chloracne, shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service. 38 C.F.R. § 3.309(e). In order for this presumptive provision to apply, chloracne shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). In the present case the Veteran served in Vietnam from November 1969 until November 1970 and is therefore presumed to have been exposed to herbicides. The record includes conflicting evidence of whether the Veteran had a diagnosis of chloracne within one year of the date he last was exposed to herbicides. The October 1970 separation examination described the skin as normal; however, the Veteran has described the presence of a rash since 1971. For example, the December 1993 VA examination noted a history of cysts and abscesses of the face that began around February 1971. Additionally, a November 2009 VA outpatient treatment record concluded that the skin condition was consistent with chloracne and the history was consistent with at least 10 percent disabling within one year of potential exposure. The physician did not provide any rationale or include clinical findings to support this conclusion. Black v. Brown, 5 Vet. App. 177, 180 (1993) (medical opinions must be supported by clinical findings in the record and conclusions of medical professionals which are not accompanied by a factual predicate in the record are not probative medical opinions). It is well-settled that in its decisions, the Board may not rely upon its own unsubstantiated medical opinion. Colvin v. Derwinski, 1 Vet. App. 171 (1991). As such, without further clarification, the Board is without medical expertise to ascertain whether or not the chloracne manifested to a compensable degree within one year of his presumed exposure. Furthermore, when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). Although the RO obtained a VA examination of the skin in April 2011 and addendum opinions in May 2011 and September 2011, the examination and addendum opinions are inadequate. 38 C.F.R. § 4.2; see Barr v. Nicholson, 21 Vet. App. at 311. Specifically, in April 2011, the examiner concluded with a diagnosis of chloracne; however, no opinion as to the etiology of the condition was provided. The May 2011 addendum provided an estimate of the percentage of the body area affected by chloracne. The September 2011 addendum provided an opinion as to the relationship between the scalp folliculitis and the service-connected diabetes mellitus. The examination and addendum opinions do not contain an opinion as to whether the chloracne manifested within one year of his exposure to herbicides or otherwise provide an opinion as to the relationship, if any, between the other skin disabilities and service. Accordingly, another VA examination should be obtained. See 38 C.F.R. § 4.2. Additionally, the record reflects that the Veteran has been treated at VA facilities. A review of these records reflects that some private medical records were scanned into VISTA. For example, a November 2009 VA outpatient treatment record refers to records from Kaiser and Bellflower that were received and scanned into VISTA. The Board does not have access to VISTA and these private records have not been associated with the claims file so that the Board may view them. Therefore, a remand is also required to obtain and associate with the claims file any records that were scanned into VISTA. 38 U.S.C.A. § 5103A(c)(3) (West 2002); 38 C.F.R. § 3.159 (2012). On remand, updated VA treatment records should also be obtained and associated with the record. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should ask the Veteran to identify all sources of treatment that he has received for his claimed skin disability and to provide any releases necessary for VA to secure records of such treatment or evaluation. The RO/AMC should obtain copies of the complete records of all such treatment and evaluation from all identified sources. Updated treatment records from the VA Health Care System dated from January 2012 to the present should be requested and associated with the claims file. All records that were scanned into VISTA must also be associated with the claims file. If any requested records are not available, that fact must clearly be documented in the claims file and proper notification under 38 C.F.R. § 3.159(e) should be provided to the Veteran. 2. After the foregoing development has been completed, the Veteran shall be afforded a VA examination to ascertain the nature and etiology of any skin disability that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. After review of the record, the examiner should express opinions as to the following: a) whether it is at least as likely as not (50 % or greater probability) that the chloracne manifested with deep acne (deep inflamed nodules and pus-filled cysts) affecting less than 40 percent of the face and neck or deep acne other than on the face and neck by November 1971? b) whether it is at least as likely as not (50 % or greater probability) that any currently diagnosed skin disability, including but not limited to the cystic acne, folliculitis, dermatosis papulosa nigra, were caused or aggravated by the Veteran's military service? The examiner must comment upon the treatment for a skin rash of the extremities in July 1970 and the Veteran's presumed exposure to herbicides A clear rationale for all opinions is required, to include a discussion of the facts and medical principles involved. 3. Following the completion of the above, and any other development deemed necessary, the RO/AMC should readjudicate the claim. If the claim is denied, the Veteran and his representative should be provided a Supplemental Statement of the Case and an opportunity to respond before the record is returned to the Board for further appellate review. 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). ______________________________________________ CHERYL MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs