Citation Nr: 1330752 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 10-09 926 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for hidradenitis. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from June 1966 to August 1969, including combat service in the Republic of Vietnam, and his decorations include the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The issue of service connection for tinnitus was raised by the Veteran in a statement submitted in February 2005 but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. In September 2005 the RO notified the Veteran of a rating action denying reopening of the claim of service connection for hidradenitis, timely appellate review was not perfected, and the determination became final. 2. Evidence added to the record since the September 2005 rating action relates to unestablished facts necessary to substantiate the claim and raises the possibility of substantiating the claim. 3. Hidradenitis had its onset during combat service in Vietnam. CONCLUSIONS OF LAW 1. Evidence added to the record since the September 2005 rating decision, denying service connection for hidradenitis, is new and material and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 2. Hidradenitis was incurred in service. 38 U.S.C.A. §§ 1110, 1111, 1154(a), (b), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for hidradenitis. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. Establishing service connection generally requires medical or, in certain circumstances, lay 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 Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) (West 2002) and its implementing regulation, 38 C.F.R. § 3.304(d) (2013), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). The Board denied the Veteran's initial service connection claims for hidradenitis, classified as a psychiatric condition, in July 1998. At this time, the record contained service treatment records (STRs) and VA treatment records. The Board concluded that there was no competent medical evidence showing hidradenitis during service and a nexus between hidradenitis and service. The Veteran did not file a timely appeal of the Board decision, and therefore it became final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 3.156(b), 20.201, 20.302 (2013). In a September 2005 rating decision the RO found that new and material evidence had not been submitted to reopen the previously denied claim. The new evidence consisted of VA treatment records. The Veteran did not file a timely notice of disagreement with this determination, and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. See Bond, 659 F.3d at 1367-8; Buie, 24 Vet. App. at 251-52; 38 C.F.R. § 3.156(b). Therefore, the rating became final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 3.156(b), 20.201, 20.302. The September 2005 rating decision is the last final decision of record. The claim decided therein is not subject to revision on the same factual basis. 38 U.S.C.A. § 7104 (West 2002). In order to reopen the claim, the Veteran must present or secure new and material evidence with respect to that claim. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 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 Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The STRs show that at the August 1969 discharge physical examination it was noted that the Veteran had cellulitis of both legs in Vietnam. There were no sequelae and at the examination he was within normal limits. February 1992 VA treatment records indicate that the Veteran had had hidradenitis of the right groin for many years with pain and drainage. November 1992 VA treatment records show that he had hidradenitis in the perineal area. VA treatment records indicate that he had cysts removed from the buttocks in January 1993, and March 1993 treatment records noted hidradenitis on the right groin. Further, as the Board noted in its April 1996 remand, at his July 1995 Board hearing, the Veteran testified that he had had hidradenitis that was first treated in service and had been "continuous since that time." At an October 1996 VA examination for systemic conditions, the Veteran said that the in-service skin problems occurred in 1968, involved sores on both lower extremities, and resolved with antibiotics. He reported intermittent problems with skin rashes in the lower extremities thereafter that was first treated in 1975. At the time of the examination the Veteran had chronic hidradenitis of the buttocks that required him to wear adult diapers at all times. He also had chronic pain for which he used Motrin, Percocet or Tylenol with codeine. There were no other skin problems or other areas of involvement. On examination there was severe hidradenitis covering most of the buttocks which was 6 by 8 inches on both sides. There was confluent induration and hyperpigmentation of the skin, three open areas of drainage, and three cysts on the right side. The examiner noted that there was no documented connection in the record, by history or physical examination, linking the hidradenitis to skin problems in service. At February 2002 VA treatment the Veteran complained of chronic hidradenitis for many years. December 2004 VA treatment records show that he was on chronic tetracycline therapy for management of hidradenitis. The Veteran wrote in a February 2005 statement that he was treated for hidradenitis in 1969 or 1970 and was treated again around 1973. His wife wrote in a February 2005 statement that he had to constantly wear thick gauze pads in his underwear due to constant bleeding. The Veteran wrote in another statement submitted in February 2005 that he took medication on a daily basis and had to wear half a diaper in his shorts due to hidradenitis related discharge. In a March 2007 statement his wife wrote that when they met in 1992 he had a terrible skin infection on his buttocks and upper legs. Various pieces of evidence have been added to the record since the September 2005 rating denial of reopening of service connection for hidradenitis. August 1976 University of Oregon treatment records show that the Veteran had a pilonidal cyst and warts and that he complained of drainage and occasional bleeding. March 2007 VA dermatology and infectious disease reports indicate that the Veteran had hidradenitis since 1968. At a November 2007 examination for a Social Security claim the Veteran reported being diagnosed with hidradenitis in 1992 but having symptoms since 1968, at which time it was called cellulitis. The symptoms came and went but in 1991 to 1992 he had a flare-up and had had the condition since then. The examiner diagnosed the Veteran with hidradenitis suppurativa. November 2007 private treatment records indicate that a large amount of hidradenitis suppurativa was excised. VA treatment records show continued treatment for hidradenitis. A private physician wrote in August 2013 that he began treating the Veteran for hidradenitis suppurative in 2007, which he noted often goes undiagnosed for years of gets misdiagnosed because of its rarity. After reviewing the records, the physician felt it was more likely than not that the Veteran's skin condition was misdiagnosed while serving in service and went undiagnosed for many years. A known complication of hidradenitis is cellulitis, and it was most likely that the in-service cellulitis occurred because of hidradenitis. It was common for cellulitis to simultaneously occur during a hidradenitis flare-up, which can be triggered by perspiration, hormonal changes, humidity and heat, and clothing friction. In conclusion, the physician felt it was more likely than not that the initial undiagnosed hidradenitis more likely than not caused the episodes of cellulitis during military service. The physician noted that this reasoning provided a well-founded and logical explanation for the Veteran's lengthy history of cellulitis and hidradenitis. The Board finds the newly submitted documents to be new and material, within the meaning of 38 C.F.R. § 3.156(a) and the service connection claim is reopened. See Shade, 24 Vet. App. at 117. The record shows that the Veteran served in combat had cellulitis while in Vietnam, which was consistent with the circumstances, conditions and hardships of that service. 38 U.S.C.A. § 1154(b). As such, VA must presume the occurrence of the in-service injury. In addition, the medical evidence shows that the Veteran has been diagnosed with hidradenitis and he reports the onset of the condition during combat service in Vietnam. Further, the Board finds that he is both competent to report symptoms related to his skin since serving in combat in Vietnam and that his account of having hidradenitis since that time is credible. It is also noted that the August 2013 opinion from the private physician was that it was more likely than not that hidradenitis that was undiagnosed at that time caused the in-service cellulitis. Thus, the Board finds that the evidence is not sufficient to rebut the presumption that his hidradenitis became manifest during his combat service. See Reeves, 682 F.3d at 998-99. In light of his competent and credible account of the onset of his hidradenitis during combat in Vietnam, the credible history of hidradenitis since service, and the diagnosis of hidradenitis, the Board finds that service connection for hidradenitis is warranted because the disability had its onset in service. ORDER Service connection for hidradenitis is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs