Citation Nr: 1336986 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 10-35 568 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim for entitlement to service connection for a skin disorder, to include as the result of exposure to herbicides. 2. Entitlement to service connection for a pulmonary disorder, to include as due to exposure to asbestos. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran's claims file has since been transferred to the RO in Wichita, Kansas. The Veteran testified before the undersigned during a Board hearing held in April 2011. A copy of the hearing transcript (Transcript) has been associated with the record. The issue of entitlement to service connection for a pulmonary disorder, to include as due to exposure to asbestos, 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. In a final rating decision dated March 1994, the RO denied service connection for a skin disorder on the basis that service treatment records are silent for complaints, treatment, and/or diagnoses of a chronic skin disorder, and because skin disorders for which the Veteran was diagnosed were not presumptively-associated with exposure to herbicides, to include Agent Orange. 2. Evidence received since the March 1994 rating decision, while new, fails to raise a reasonable possibility of substantiating the Veteran's claim for a skin disorder, to include as the result of exposure to herbicides. CONCLUSIONS OF LAW 1. The unappealed March 1994 rating decision that denied service connection for a skin disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2013). 2. The evidence received since the March 1994 rating decision is not new and material; the claim for entitlement to service connection for a skin disorder, to include as the result of exposure to herbicides, is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board notes that regulations enacted under the Veterans Claims Assistance Act of 2000 (VCAA) require VA to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claims. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) clarified that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. In the instant case, the Veteran was provided general notice concerning the criteria to establish service connection in a December 2006 letter. In that letter, the RO advised the Veteran of the basic criteria necessary to prevail on his claim, and explained VA's duties to assist him in obtaining evidence relevant to the claim. He was advised to identify any evidence relevant to the claim and that VA could assist him in obtaining any relevant evidence. He was also advised generally of the way VA assigns disability ratings and effective dates should the underlying claim be granted. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) addressed directives consistent with the VCAA with regard to new and material evidence. The Court stated that in order to successfully reopen a previously and finally disallowed claim, the law requires the presentation of a special type of evidence-evidence that is both new and material. The terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants. Because these requirements define particular types of evidence, when providing the notice required by the VCAA it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented. In other words, VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit sought by the claimant. In addition, VA's obligation to provide a claimant with notice of what constitutes new and material evidence to reopen a service connection claim may be affected by the evidence that was of record at the time that the prior claim was finally denied. In order to satisfy the legislative intent underlying the VCAA notice requirement to provide claimants with a meaningful opportunity to participate in the adjudication of their claims, the VCAA requires, in the context of a claim to reopen, the Secretary to look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Therefore, 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. Here, the December 2006 letter provided adequate notice of what constitutes material evidence in the case at hand, which met the directives of Kent. The Board also concludes VA's duty to assist has been satisfied. Pertinent post-service medical records have been obtained from the Veteran's private and VA providers, to the extent available. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that no additional evidence, which may aid the Veteran's claim or might be pertinent to the bases of the claim, has been submitted, identified or remains outstanding, and the duty to assist requirement has been satisfied. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). A recent medical examination has not been performed, or medical opinion obtained, with respect to the Veteran's claim for service connection for a skin disorder. However, the Board finds that the evidence of record fails to show the diagnosis and/or treatment of a chronic skin disorder during service, and post-service medical evidence does not provide any link between any currently-diagnosed skin disorder and his military service, to include as the result of herbicide exposure. As such, a remand for an examination and/or opinion is not necessary to decide the Veteran's claim. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (VA is not obligated to provide an examination for a medical nexus opinion where, as here, the supporting evidence of record consists only of unsubstantiated lay allegations establishing the required association between this current disability and service.) As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. New and Material Evidence The Veteran has claimed entitlement to service connection for a skin disorder, affecting several areas of his body, to include as due to exposure to herbicides. He contends that a dermatological condition first manifested during his period of active service. To prevail on the issue of service connection on the merits, there must be evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). With regard to his theory of entitlement, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1974, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii) (2013). Service in the Republic of Vietnam includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 C.F.R. § 3.313 (2013). If a veteran was exposed to a herbicide agent during active military, naval, or air service, diabetes mellitus shall be service-connected if the requirements of 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. In this case, the Veteran does have verified Vietnam service. The following diseases are deemed associated with herbicide exposure, under VA law: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, diabetes mellitus, type 2, Hodgkin's disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), Parkinson's disease, and ischemic heart disease (emphasis added). 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii); 3.309 (2013). The Board notes that a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decisionmakers. 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). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board without consideration in that decision in accordance with the provisions of § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). According to the Court, the pertinent VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). In considering whether to reopen a claim, VA must assume the credibility of the aforementioned evidence which supports the Veteran's claim as required by Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court held that, when evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. In this case, the RO denied the Veteran's claim for "skin disease" in a March 1994 rating decision, in pertinent part, because service treatment records are silent for complaints, treatment, and/or diagnosis of a chronic skin disorder, and because these disorders for which the Veteran is currently-diagnosed are not presumptively-associated with exposure to herbicides, to include Agent Orange. The Board also notes that the Veteran claimed entitlement to service connection for chloracne, a disease presumptively-associated with herbicide exposure per the regulations cited above, which was denied by the RO in a May 2002 rating decision. The Veteran was notified of these decisions in March 1994 and May 2002, and of his appellate rights, via letters from the RO. He did not appeal either rating decision, and each became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2013). Under 38 C.F.R. § 3.156(b), VA must evaluate submissions received during the relevant period to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim. However, in the instant case, such regulation is inapplicable, as no new evidence pertaining to the Veteran's claim for service connection was received prior to the expiration of either appeal period stemming from the March 1994 or May 2002 rating decisions. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). Since the prior final decision, new evidence has been added to the claims file. The new evidence consists of private medical reports, VA outpatient treatment reports, lay statements (from the Veteran and his former spouse) in support of his claim, and his April 2011 Board hearing testimony. The medical evidence of record continues to show current dermatological treatment. Since the original filing, several diagnoses have been provided for the Veteran's skin disorder, to include lichen simplex chronicus, dermatophytosis, tinea pedis, and eczema. While a December 1993 report (issued prior to the final rating decision, but noted here for reference) indicated that the Veteran's skin disorder was possibly chloracne, that diagnosis was never confirmed. A March 2006 VA treatment report noted a rash, which occurred intermittently, though no diagnosis was provided. A lay statement from the Veteran's former spouse, dated in February 2007, noted that the Veteran suffered from rashes covering his feet, hands, groin, ears, and face. At the time of his April 2011 Board hearing, he testified that he began having skin trouble during a deployment in 1969, and that he reported to a corpsman for treatment. However, he was not aware if these encounters were recorded. See Transcript, p. 3. He further indicated that he suffered from a rash that affected his hands, feet, groin, and ears. See Transcript, p. 4. As the diagnosis of chloracne was never confirmed, and no diagnosed dermatological disorder was ever linked to a chloracne diagnosis, to include acneform, the presumption associated with exposure to herbicides in Vietnam does not apply in this instance. Further, with regard to those diagnoses (and lay statements) which are of record, at no time has a medical provider linked any current skin disorder to the Veteran's period of active service. Finally, no additional service medical records have been provided which indicate treatment for a chronic, in-service skin disorder. Service treatment reports (which were of record at the time of the prior, final adjudication) noted a diagnosis of tinea pedis in June and October 1969, and lumps on the back of his neck (most likely infected follicles, otherwise known as pimples) in June 1969. On separation in February 1970, the Veteran denied a history of skin diseases, and his examination was normal (to include his feet). As noted, evidence is material if it is relevant to and probative of an issue that was a specific basis for denial of the last final disallowance. Evans v. Brown, 9 Vet. App. 273 (1996) (holding that evidence is material if it is relevant to and probative of an issue that was a specific basis for denial of the last final disallowance), overruled, in part, on other grounds by Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); see also Anglin v. West, 202 F.3d 1343, 1347 (Fed. Cir. 2000) (stating that Hodge left intact the requirement that the evidence must be relevant to and probative of an issue that was a specified basis for the last final denial). While there is a "low threshold" for determining that additional evidence submitted since a prior final decision provides new and material evidence to reopen a claim, in the absence of any new medical opinion or evidence that the Veteran has a current skin disorder linked to his period of active service, new and material evidence has not been received which addressed any basis for the prior, final decision. Therefore, the claim for entitlement to service connection for a skin disorder, to include as the result of herbicide exposure, is not reopened. ORDER New and material evidence has not been received sufficient to reopen the claim of entitlement to service connection for a skin disorder, to include as the result of exposure to herbicides; the claim is not reopened. REMAND The Board finds that the issue of entitlement to service connection for a lung disorder, to include as the result of asbestos exposure, must remanded for further development. In support of the Veteran's claim, a January 2002 statement from the Veteran's private provider indicated that bilateral pleural and interstitial fibrotic changes were consistent with asbestosis in a patient who has had an adequate exposure history and latent period. A November 2008 VA outpatient report indicated asbestosis, per the Veteran's own history. During the Veteran's April 2011 Board hearing, he testified that he worked in an "AmTrac" unit (amphibious, tracked vehicles), during active service. See Transcript, p. 5. The Veteran's military occupational specialty (MOS) was that of "Amtracman" per his DD-214. He testified that he was a driver and a crewman, but that he also did some repair work, to include work with brake linings. See Transcript, p. 9. He stated that he was not aware of any post-service asbestos exposure. See Transcript, p. 10. The Board notes that there is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos -related diseases. DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, 7.21. These guidelines note that inhalation of asbestos fibers can produce fibrosis and tumors, that the most common disease is interstitial pulmonary fibrosis (asbestosis), and that the fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, cancers of the gastrointestinal tract, cancers of the larynx and pharynx, and cancers of the urogenital system (except the prostate). See M21-1, Part VI, 7.21(a), p. 7-IV- 3; see also Ennis v. Brown, 4 Vet. App. 523 (1993). It is noted that persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolarygneal, gastrointestinal, and urogenital cancers, and that the risk of developing bronchial cancer is increased in current cigarette smokers who had asbestos exposure. See id. It is also noted that the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of the disease, and that an asbestos-related disease can develop from brief exposure to asbestos. See M21-1, Part VI, 7.21(b), p. 7- IV-3 (January 31, 1997). The Board notes that under the provisions of the M21-1, Part VI, occupations involving asbestos exposure include mining and milling, shipyard and insulation work, demolition of old buildings, construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, etc. High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. To this point, the Court has further held that in adjudicating asbestos-related claims, it must be determined whether development procedures applicable to such claims have been followed. See Ashford v. Brown, 10 Vet. App. 120 (1997). The guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; that rating specialists are to develop any evidence of asbestos exposure before, during and after service; and that a determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. See M21-1MR, Part VI, Subpart ii, Chapter 2, Sec. C (9)(h). In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1MR, Part VI, Subpart ii, Chapter 2, Sec. C(9)(h). In McLendon v. Nicholson, the Court held that the Secretary must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. Id, at 83. Pursuant to VA's duty to assist, a search of the Veteran's records should be conducted in an attempt to determine whether exposure to asbestos occurred during his period of service. Thereafter, the Veteran should be afforded a VA pulmonary examination so as to determine whether the Veteran has a current diagnosis of asbestosis, fibrotic scarring, or any other pulmonary disorder, and to ascertain the etiology thereof. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify all sources of treatment for his respiratory symptoms since 2011 (i.e., since the most recent medical evidence of record). After obtaining all necessary authorizations, the RO should attempt to obtain these identified records and associate them with the Veteran's claims file. 2. Contact the Veteran and request that he provide a specific history as to his pre-service and post-service employment, as well as any history of asbestos exposure before and after service. 3. The RO/AMC shall attempt to verify the Veteran's claimed in-service asbestos exposure, to include asbestos that may have been contained within the brake linings of Amtrac vehicles in use during the Vietnam war, by contacting any relevant records custodian. All efforts to obtain these records should be fully documented, and the RO/AMC should request a negative response if records are not available. 4. Upon completion of the above development, the RO/AMC should schedule a VA respiratory examination. The examiner should obtain a detailed history of service and post-service asbestos exposure from the Veteran. The examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran has asbestosis, or any other asbestos-related lung disorder. If, and only if, the Veteran is determined to have asbestosis, or any other asbestos-related lung disorder, the examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran's asbestosis, or any other asbestos-related lung disorder, is related to asbestos exposure during service from June 1968 to February 1970. The claims folders must be made available to and reviewed by the examiner, and that fact must be noted within the context of the opinion. The examiner must provide a complete rationale for his or her opinion. If an opinion cannot be provided without resort to mere speculation, the examiner must so state and must provide a rationale for such conclusion. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 5. After completing the above actions and any other notification or development deemed necessary, the Veteran's claim should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, all issues properly on appeal should be 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). ______________________________________________ T. STEPHEN ECKERMAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs