Citation Nr: 1342693	
Decision Date: 12/24/13    Archive Date: 12/31/13

DOCKET NO.  11-33 238	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Whether new and material evidence has been received to reopen service connection for tinea versicolor, previously claimed as a skin disorder, and if so, whether service connection is granted.


REPRESENTATION

Appellant represented by:	North Carolina Division of Veterans Affairs


ATTORNEY FOR THE BOARD

R. Casadei, Associate Counsel





INTRODUCTION

The Veteran, who is the appellant in this case, served on active duty from September 1964 to September 1967.

This matter comes on appeal before the Board of Veterans' Appeals (Board) from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina (RO), which, denied reopening the claim for service connection for a skin disorder.  

In a subsequent November 2011 supplemental statement of the case, the RO reopened the claim and denied service connection for tinea versicolor (i.e., a skin disorder).  Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claim and to adjudicate the claim de novo.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g, 8 Vet. App. 1 (1995)).

In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the file on the "Virtual VA" system to ensure a complete assessment of the evidence.

The reopened issue of service connection for tinea versicolor 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.  An unappealed January 2007 rating decision denied service connection for a skin disorder. 

2.  The Veteran did not submit a timely notice of disagreement to the January 2007 rating decision.

3.  The evidence received since the January 2007 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for a skin disorder, currently diagnosed as tinea versicolor.


CONCLUSIONS OF LAW

1.  The January 2007 rating decision, which denied service connection for a skin disorder, became final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). 

2.  The evidence received subsequent to the January 2007 rating decision is new and material to reopen service connection for a skin disorder, currently diagnosed as tinea versicolor.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.156(a) (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Reopening Service Connection for Photophobia

In a January 2007 rating decision, the RO denied service connection for a skin disorder, finding that the Veteran did not have a currently diagnosed skin disorder.  The Veteran was properly notified of the January 2007 rating decision, did not appeal, and it became final.  38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103.

A claim on which there is a final decision may be reopened if new and material evidence is submitted.  38 U.S.C.A. § 5108.  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).  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).  The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received.  Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992).

The evidence of record at the time of the January 2007 rating decision included statements from the Veteran, service treatment records, and VA treatment records.  

Evidence received since the January 2007 rating decision includes, in pertinent part, a June 2011 VA dermatological treatment note diagnosing the Veteran with tinea versicolor.  Further, in a September 2010 statement, the Veteran's wife stated that the Veteran's skin disorder first appeared after he came home from his tour in the Republic of Vietnam.  The Board finds that this medical and lay evidence raises a reasonable possibility that the Veteran's skin disorder is related to service.  Accordingly, new and material evidence has been received to reopen service connection for tinea versicolor, previously claimed as skin disorder.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). 

ORDER

New and material evidence having been received, the appeal to reopen service connection for service connection for tinea versicolor, previously claimed as skin disorder, is granted.

REMAND

Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim.  38 C.F.R. § 3.159(c)(4)(i) (2013).  VA must provide a VA medical examination or medical opinion when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (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) insufficient competent medical evidence on file for the Secretary to make a decision on the claim.  See McClendon v. Nicholson, 20 Vet App. 79, 81 (2006).

Here, the Veteran has currently diagnosed tinea versicolor.  The Veteran and his wife contend that the skin disorder first manifested after the Veteran returned from his tour in the Republic of Vietnam.  The Board notes that the evidence of record demonstrates that the Veteran served in the Republic of Vietnam and is therefore presumed to have been exposed to herbicides during service.  The Board finds that the evidence currently of record is insufficient to properly adjudicate the claim.  As such, on remand, a VA medical opinion should be obtained in order to assist in determining whether currently diagnosed tinea versicolor is etiologically related to service, to include any exposure to herbicides while service in the Republic of Vietnam.   

Accordingly, the case is REMANDED for the following actions:

1.  Associate with the claims file all VA clinical records dated from May 23, 2012 to the present.

2.  Schedule appropriate VA medical examination to assist in determining the etiology of the Veteran's skin disorder, to include tinea versicolor.  The examiner is asked to diagnose all other current disorders of the skin. 

Then, after reviewing all pertinent documents in the claims file and obtaining a complete medical history from the Veteran, the examiner should offer an opinion as to whether it is as least as likely as not (i.e., 50 percent or greater probability) that any disorder of the skin, to include tinea versicolor, is related to service, to include exposure to herbicides while in the Republic of Vietnam.

Note: the examiner should assume that the Veteran was exposed to herbicides (Agent Orange) during service while in the Republic of Vietnam.

A complete rationale should be provided for the opinion given.  If the requested medical opinion cannot be given, the examiner should state the reason(s) why.

3.  The RO should readjudicate on the merits the issue of service connection for a skin disorder, to include tinea versicolor.  If the benefit sought on appeal remains denied, the Veteran and representative should be provided a supplemental statement of the case.  An appropriate period of time should be allowed for response.

The Veteran has the right to submit additional evidence and argument on the matter 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. 2013).



______________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs