Citation Nr: 1333967	
Decision Date: 10/28/13    Archive Date: 11/06/13

DOCKET NO.  10-28 427	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Whether there is new and material evidence to reopen a previously denied claim of entitlement to service connection for a skin disorder, including androgenic alopecia and dermatitis.

2.  Entitlement to service connection for a skin disorder, including androgenic alopecia and dermatitis.


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


ATTORNEY FOR THE BOARD

K. Hubers, Associate Counsel



INTRODUCTION

The Appellant served on active duty for training (ACDUTRA) from September 1987 to February 1988; she served on active duty (AD) from November 1990 to September 1991.

She appealed to the Board of Veterans' Appeals (Board/BVA) from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which determined there was not new and material evidence and, therefore, denied her petition to reopen her previously considered and denied claim of entitlement to service connection for a skin disorder, including especially androgenic alopecia and dermatitis.

In her June 2010 substantive appeal (on VA Form 9), she requested a hearing at the RO before a Veterans Law Judge of the Board, in other words a Travel Board hearing.  Her hearing was scheduled for April 18, 2013, but she withdrew her request for a hearing.  38 C.F.R. § 20.704(e) (2013).

Also in April 2013, her representative submitted a private medical opinion and other evidence for the Board's consideration.  They waived the right to have the RO, as the Agency of Original Jurisdiction (AOJ), initially consider this additional evidence, preferring instead to have the Board do so in the first instance.  See 38 C.F.R. § 20.1304 (2013).



FINDINGS OF FACT

1.  The RO initially considered and denied the Appellant's claim of entitlement to service connection for a skin disorder, namely, for androgenic alopecia/dermatitis, in a May 2001 rating decision.

2.  A subsequent January 2002 RO rating decision determined there was not new and material evidence since that initial decision to permit reopening this claim; a February 2002 letter notified the claimant of that decision and of her procedural and appellate rights, but she did not appeal that decision to the Board.

3.  Additional evidence since received, however, is not cumulative or redundant of the evidence considered in those prior decisions and raises a reasonable possibility of substantiating her claim of entitlement to service connection for a skin disorder, inclusive especially of androgenic alopecia and dermatitis.

4.  According to the medical and other evidence now in the file, it is just as likely as not her skin disorder, particularly her androgenic alopecia and dermatitis, is the result of exposure to chemicals or toxins during her AD service.


CONCLUSIONS OF LAW

1.  The January 2002 rating decision denying her prior petition to reopen her claim for service connection for a skin disorder, including especially androgenic alopecia and dermatitis, is a final and binding determination.  38 U.S.C.A. § 7105 (West); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.202, 20.302, 20.1103 (2013).

2.  But there is new and material evidence since that decision to reopen this claim.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013).

3.  Resolving all reasonable doubt in her favor, her skin disorder, especially her androgenic alopecia and dermatitis, was incurred in service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  The Duties to Notify and Assist

The Veterans' Claims Assistance Act of 2000 (VCAA) prescribes several requirements as to VA's duties to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits.  The VCAA was codified as amended at 38 U.S.C.A. §§ 5100 , 5102, 5103A, 5107, 5126, and the implementing regulations were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326.

Because the Board is granting the Veteran's petition to reopen her claim and then also granting her underlying claim of entitlement to service connection for her skin disorder, the Board need not discuss whether there has been compliance with these duty-to-notify-and-assist obligations.  This is because, even were the Board to assume, for the sake of argument, there has not been this required compliance, this ultimately would be inconsequential and, therefore, only amount to at most nonprejudicial, i.e., harmless error.  38 C.F.R. § 20.1102 (2013).  See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (wherein the U. S. Supreme Court made clear that VCAA notice and assistance errors, even if shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis.  Moreover, as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error, but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of the claim.)  There simply is no such possibility, here, given the granting, rather than denial, of the claim.


II.  Factual Background and Procedural History

In January 2001, the Veteran filed a claim of entitlement to service connection for a skin disorder, to include androgenic alopecia and dermatitis.  The evidence then of record established that she had been diagnosed with these dermatological conditions.  The RO denied the claim in May 2001, however, on the grounds that there was no evidence then of record of a causal relationship or correlation (nexus) between her skin condition and any event, disease or injury during her service.

In July 2001, so later that same year, she submitted additional evidence that she contended supported her prior claim.  But in a January 2002 decision, the RO affirmed its previous denial of her claim on the basis that the additional evidence was not new and material.  The RO sent her a letter in February 2002 notifying her of that decision continuing to deny her claim and apprising her of her procedural and appellate rights, in the event she elected to appeal the decision to the Board.  She did not initiate an appeal of that decision, however, or submit new and material evidence during the one-year period permissible following the decision.  As such, that prior decision is a final and binding determination regarding her claim.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.156(b), 3.160(d), 20.200, 20.202, 20.302, 20.1103.

III.  Reopening the Claim

A final and binding decision denying a claim requires new and material evidence since the decision to reopen the claim.  38 U.S.C.A. § 5108.  The starting point for determining whether there is this required new and material evidence is the last final and binding decision denying the claim, irrespective of the specific basis of that prior denial, so regardless of whether it was on the underlying merits or, instead, a prior petition to reopen the claim.  Evans v. Brown, 9 Vet. App. 273, 285 (1996).


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 (2010), the U. S. Court of Appeals for Veterans Claims (Court/CAVC) clarified 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 decision makers 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.  In other words, the Court indicated that the post-VCAA version of 38 C.F.R. § 3.156(a) establishes a "low" threshold for reopening a claim, one that does not require that a claimant submit a medical opinion to reopen a claim.  Rather, if there is newly submitted evidence of current disability that, in connection with the prior evidence, raises a reasonable possibility of substantiating the claim, and the element of a nexus could be established by providing a VA examination, the claim may be reopened.  This then triggers VA's duty to assist in providing the claimant with a VA examination.  see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).

In determining whether the evidence in question is new and material to the claim, its credibility, but not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992); see also Madden v. Gober, 125 F.3d 1477, 1481 (1997); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  But see, too, Duran v. Brown, 7 Vet. App. 216 (1994) (indicating "Justus does not require the Secretary [of VA] to consider the patently incredible to be credible" or to blindly accept, as necessarily true, allegations that are beyond the competence of the person making them).

Here, the Board finds that new and material evidence has been received since the January 2002 decision allowing for the reopening of this claim.  The claim was previously denied because the evidence then of record failed to show the required causal nexus between the Veteran's skin disorder and her active military service, whether on ACDUTRA or AD.  But in support of her May 2009 petition to reopen this claim, she has proffered additional medical records documenting diagnosis of and treatment for her skin condition, an April 2013 letter from her non-VA treating physician (Dr. Forconi), a collection of news articles relating to the exposure of some Veterans who were in or near Iraq during the Persian Gulf War to various chemicals, as well as a Board decision from January 2009 addressing another Veteran's exposure to toxins during the Perian Gulf War.

This additional evidence has not been previously submitted to agency decision makers and, therefore, is "new".  38 C.F.R. § 3.156(a).  Also however, this additional evidence, particularly the April 2013 letter from Dr. Forconi, is material since it addresses the determinative issue of whether there is an etiological link between the Veteran's service and her present skin condition.  Dr. Forconi states:  "[i]t is my medical opinion that exposure to these chemicals [(sarin and cyclosarin from rockets destroyed in Khamisiyah, Iraq)] caused the dermatitis which in turn caused the hair loss."  Androgenic alopecia is hair loss.  So not only has this doctor linked the androgenic alopecia to the dermatitis, but also the dermatitis, in turn, to exposure to toxins during the Veteran's military service.  See Shade, 24 Vet. App. at 122-23.  Further, when viewed in the context of all the evidence of record, the new and material evidence raises a reasonable possibility of substantiating the claim.  Id.; 38 C.F.R. § 3.156(a).

This claim therefore is being reopened but also, as discussed below, granted on its underlying merits.


IV.  Underlying Merits, Entitlement to Service Connection

In establishing a claim, a Veteran need only demonstrate there is an approximate balance of positive and negative evidence.  Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  Under the benefit-of-the-doubt doctrine established by Congress, when the evidence is in "relative equipoise, the law dictates that the Veteran prevails."  Id.  The benefit of the doubt is afforded the claimant with respect to each issue material to the determination.  Id.  See also 38 C.F.R. § 3.102.  The preponderance of the evidence must be against the claim for benefits to be denied.

Service connection is granted for disability resulting from personal injury sustained or disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition, meaning for a permanent worsening of the condition above and beyond its natural progression.  38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306.

"To establish a right to compensation for a present disability, a Veteran must show:  '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called 'nexus' requirement.'"  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

The term active military service includes AD and any period of ACDUTRA during which the individual concerned was disabled or died from a disease or an injury incurred in or aggravated in the line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury, though not disease, incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training.  38 U.S.C.A. § 101(24), 106; 38 C.F.R. § 3.6(a).


Reserve and National Guard service generally means ACDUTRA and INACDUTRA.  ACDUTRA is full-time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505.  38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c).  Basically, this refers to the two weeks of annual training, sometimes referred to as "summer camp," which each Reservist or National Guardsman must perform each year.  It can also refer to the Reservist's or Guardsman's initial period of training.

INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505.  38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d).  Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year and is often referred to as "weekend warrior" training.  These drills are deemed to be part-time training.

So to establish status as a "Veteran" based upon a period of ACDUTRA, a claimant must establish that he was disabled or died from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA.  38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995).  The fact that a claimant has established status as a "Veteran" for purposes of other periods of service (e.g., AD) does not obviate the need for him to establish that he is also a "Veteran" for purposes of the period of ACDUTRA where the claim for benefits is premised on that period of ACDUTRA.  
Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998).

Similarly, in order for a claimant to achieve "Veteran" status and be eligible for service connection for disability claimed during his inactive service, the record must establish that he was disabled or died from an injury, but not disease, incurred or aggravated during INACDUTRA.  Id; see also Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991).


If a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, are service connected unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  Continuity of symptoms is required, however, where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned.  Id.  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of 
post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances lay evidence of a nexus between the present disorder and the 
post-service symptomatology.  Clyburn v. West, 12 Vet. App. 296, 302 (1999).  However, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) recently clarified that the continuity of symptomatology language in § 3.303(b) "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013) (§ 3.303(b) does not have any effect beyond affording an alternative route for proving service connection for chronic diseases identified in § 3.309(a)).  Androgenic alopecia and dermatitis are not chronic diseases according to this VA regulation, so are not subject to this pleading and proof exception.

Moreover, there is no presumption of soundness or aggravation for ACDUTRA and INACDUTRA service, only for AD, nor is there any presumption normally available for the conditions considered chronic, per se, which manifest to the required compensable degree within a specified amount of time after service, usually one year.  See Biggins, 1 Vet. App. at 477-78; Smith v. Shinseki, 24 Vet. App. 40 (2010).

But having said all of that, service connection nonetheless may be granted for any disease diagnosed after discharge from service, when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).


Turning back now to the facts and circumstances of this particular case.  The record contains extensive VA and private medical records confirming the Veteran has diagnosis of and treatment for androgenic alopecia and dermatitis.  So there is no disputing she has these claimed conditions.  Therefore, the determinative issue is whether they are related or attributable to her military service as she is alleging.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").  Because there now is the required supporting evidence establishing this necessary cause-and-effect correlation, her claim must be granted.

As for the occurrence of a relevant event, disease or injury during her service, the record includes July 1997 and March 2001 letters from the Department of Defense indicating her unit "may have been exposed to very low levels of chemical agent for a brief period of time."  So granting her the benefit of the doubt concerning this, this evidence tends to establish she was exposed to chemicals or toxins during her AD service during the Persian Gulf War.  Gilbert, 1 Vet. App. at 53-56.  The only remaining issue, then, is whether her skin condition is a result or consequence of her conceded exposure to those chemicals or toxins in service.  Shedden, 381 F.3d at 1166-67.

As already discussed, the evidence submitted by her since the earlier denials of her claim includes etiological opinions proffered by Dr. Forconi, her treating dermatologist.  In a September 2000 letter, Dr. Forconi opined that the chemicals to which the Veteran was exposed during her service were capable of causing her skin condition.  At the time, he indicated that he was unable to state categorically whether the Veteran's skin condition was etiologically related to her service.  However, he suggested that, if she indeed had been exposed to chemicals during her service, it could be necessary to consider an etiological link between that exposure and her skin condition.


Statements that are inconclusive as to the origin of a disorder generally cannot be employed as suggestive of a linkage between the disorder and the Veteran's military service.  See Warren v. Brown, 6 Vet. App. 4, 6 (1993); Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993).  However, these types of opinions also cannot be used to rule out this purported correlation, either.  Ultimately, noncommittal opinions like this amount to "nonevidence," neither for nor against the claim, because service connection may not be based on speculation or remote possibility.  See generally Bloom v. West, 12 Vet. App. 185 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty).  See also 38 C.F.R. § 3.102 (when considering application of the benefit-of-the-doubt doctrine, reasonable doubt is one within the range of probability, as distinguished from pure speculation or remote possibility).

Indeed, in past decisions the Court also had held that saying a condition "may" be related to the Veteran's military service is tantamount to saying it just as well "may not" be related to his service, so, because of this equivocality, also an insufficient basis to grant service connection.  See Obert v. Brown, 5 Vet. App. 30 (1993); Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Winsett v. West, 11 Vet. App. 420 (1998).  The same is true when the opinion is phrased in such other equivocal terms as "possible" or "could be".  Id.

An etiological opinion has to be viewed in its entire context, however, and not characterized solely by the medical professional's choice of words.  See Perman v. Brown, 5 Vet. App. 237, 241 (1993); Lee v. Brown, 10 Vet. App. 336, 338 (1997).  Moreover, an "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology, rather, this need only be an as likely as not proposition for the Veteran to prevail.  See, e.g., Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

Consider also that additional precedent cases have been more recently issued shedding further light on how to properly assess and determine the probative value of these noncommittal opinions.  Notably for instance, in Hogan v. Peake, 544 F.3d 1295 (Fed. Cir. 2008), the Federal Circuit Court indicated a determination regarding service connection requires consideration of all pertinent medical and lay evidence, including medical opinions that do not state definitively when a particular disorder or condition began; therefore, classifying a medical opinion as 
"non-evidence" is "troubling."  Similarly, in Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009), the Federal Circuit Court more recently held that an examiner's statement, which recites the inability to come to an opinion, provides neither positive nor negative support for service connection; therefore, it is not pertinent evidence regarding service connection.  The remainder of the report, however, must be considered as evidence of whether the disability was incurred in service. 

An even more recent precedent case also admonished the Board for relying on medical opinions that also were unable to establish this required linkage, without resorting to mere speculation, as cause for denying the Veteran's claims.  See Jones v. Shinseki, 23 Vet. App. 382 (2010).  In Jones, the Court noted it was unclear whether the examiners were unable to provide this requested definitive medical comment on etiology because they actually were unable to since the limits of medical knowledge had been exhausted or, instead, for example, needed further information to assist in making this determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data.  The Court in Jones acknowledged there are instances where a definitive opinion cannot be provided because required information is missing or can no longer be obtained or current medical knowledge yields multiple possible etiologies with none more likely than not the cause of the claimed disability.  See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (noting the Board need not obtain further medical evidence where the medical evidence "indicates that determining the cause is speculative").  The Court in Jones held, however, that in order to rely upon a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record.

In April 2013, apparently in response to this equivocality, Dr. Forconi provided a supplemental opinion letter in which he explained that he now knew the Veteran had been exposed to chemicals during her service and that she since had developed the skin condition at issue.  He then concluded, based on his review of her service records and private medical records, that "it is at least as likely as not that [her] current Androgenic Alopecia/dermatitis claimed as a skin condition, is a result of her active duty military service."  

When considering this doctor's letters together, they provide sufficient explanation of his rationale for associating the Veteran's skin condition with her exposure to chemicals or toxins during her service.  This doctor's opinion therefore has significant probative weight, especially since it is unrefuted by any of the other medical evidence in the file.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-304 (2008).  Specifically, the September 2000 letter provides Dr. Forconi's opinion that exposure to chemical agents of the type to which the Veteran was exposed are capable of causing her skin condition.  The favorable opinion in the April 2013 letter is based on the already established medical conclusion that the chemical agents to which she was exposed could cause her skin condition, her exposure to specific chemical agents, and the temporal proximity between her exposure and her later development of the skin condition at issue.  The Board finds, therefore, that Dr. Forconi's opinion is based on sufficient facts and data and that the opinion is the result of application of reliable principles and methods to those facts and data.  Id.  See, too, 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").

As mentioned, Dr. Forconi's opinion is the only medical evidence of record addressing the etiology of the Veteran's androgenic alopecia and dermatitis.  Because the Board has determined that Dr. Forconi's opinion is both competent and credible, and therefore ultimately probative, indeed the most probative since uncontroverted, the Board concludes that the Veteran's skin condition is the result of her service.


Because the Board has determined that the evidence submitted by the Veteran establishes each of the elements of a direct service connection claim, the Board concludes that she is entitled to service connection for her skin disorder that has been diagnosed as a combination of androgenic alopecia and dermatitis.


ORDER

The petition to reopen the claim of entitlement to service connection for a skin disorder - namely, for androgenic alopecia and dermatitis - is granted, as is the underlying claim for this benefit.



____________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs