Citation Nr: 1336545 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 06-24 918A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for Type II diabetes mellitus and, if so, whether service connection is warranted. 2. Whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for hepatitis C residuals and, if so, whether service connection is warranted. 3. Entitlement to service connection for eczema. 4. Entitlement to service connection for hypertension. 5. Entitlement to an increased disability evaluation for the Veteran's tinea versicolor of the chest and the back, currently evaluated as 30 percent disabling. WITNESS AT HEARING ON APPEAL The Veteran REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran had active service from March 1972 to January 1973. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision by the New Orleans, Louisiana, Regional Office (RO) which denied an increased disability evaluation for the Veteran's tinea versicolor of the chest and the back. In July 2008, the RO denied service connection for eczema and dermatitis. In March 2010, the RO determined that new and material evidence had not been received to reopen the Veteran's claim of entitlement to service connection for hepatitis C residuals. In August 2010, the Board remanded the Veteran's appeal to the RO for additional action. In October 2010, the RO, in pertinent part, determined that new and material evidence had not been received to reopen the Veteran's claim of entitlement to service connection for Type II diabetes mellitus and denied service connection for hypertension. The Board has reviewed the physical claims files and both the "Virtual VA" and the Veterans Benefits Management System (VBMS) files so as to insure a total review of the evidence. As to the issues of whether new and material evidence has been received to reopen service connection for diabetes mellitus and hepatitis C residual, the Board is required to consider the question of whether new and material evidence has been received to reopen the claims without regard to the RO's determination in order to establish the Board's jurisdiction to address the underlying claim and to adjudicate the claim on a de novo basis. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The issues of service connection for diabetes mellitus, hepatitis C residuals to include liver cirrhosis, eczema, and hypertension and an increased evaluation for the Veteran's tinea versicolor of the chest and the back are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Department of Veterans Affairs (VA) will notify the Veteran if further action is required on his part. In March 2011, the Veteran submitted an informal claim for service connection for liver transplant residuals. While a March 2012 statement of the case (SOC) issued to the Veteran states that "the claim for service connection for hepatitis C, cirrhosis of the liver, s/p liver transplant remains denied because the evidence submitted is not new and material," the Board observes that the issue of service connection for liver transplant residuals has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it. The issue is referred to the RO for appropriate action. FINDINGS OF FACT 1. In a December 2007 rating decision, VA determined that new and material evidence had been received to reopen the Veteran's claim for service connection for Type II diabetes mellitus and denied the claim on the merits. The Veteran was informed in writing of the adverse decision and his appellate rights in December 2007. He did not submit a notice of disagreement (NOD) with the decision. 2. The evidence received since the December 2007 rating decision is new; relates to an unestablished fact; and raises a reasonable possibility of substantiating the claim for service connection for diabetes mellitus. 3. In an October 2009 rating decision, the RO determined that new and material evidence had not been received to reopen the Veteran's claim for service connection for hepatitis C residuals. The Veteran was informed in writing of the adverse decision and his appellate rights in November 2009. He did not submit a NOD with the decision. 4. The evidence received since the October 2009 rating decision is new; relates to an unestablished fact; and raises a reasonable possibility of substantiating the claim for service connection for hepatitis C residuals. CONCLUSIONS OF LAW 1. The December 2007 rating decision denying service connection for Type II diabetes mellitus is final; new and material evidence sufficient to reopen service connection for Type II diabetes mellitus has been received. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326(a), 20.1105 (2013). 2. The October 2009 RO determination that new and material evidence had not been received to reopen the Veteran's claim of entitlement to service connection for hepatitis C residuals is final; new and material evidence sufficient to reopen service connection for hepatitis C residuals has been received. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326(a), 20.1105 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473(2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this decision, the Board reopens and remands the issues of service connection for Type II diabetes mellitus and hepatitis C residuals; therefore, no further discussion of VA's duties to notify and to assist is necessary as to those issues. II. Application to Reopen Generally, absent the filing of a NOD within one year of the date of mailing of the notification of the initial review and determination of an appellant's claim and the subsequent filing of a timely substantive appeal, a rating determination is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. §§ 20.200, 20.300, 20.1103. The provisions of 38 C.F.R. § 3.156 direct, in pertinent part, that: (a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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. (b) Pending claim. 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 of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. The provisions of 38 C.F.R. § 3.156(a) creates a low threshold, with the phrase "raises a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court has elaborated on what constitutes "new and material evidence." New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In making the determination of materiality, "the Board is precluded from considering the credibility of the newly submitted evidence; strictly for purposes of determining whether new and material evidence has been presented, the Board must presume that the newly submitted evidence is credible." Duran v. Brown, 7 Vet. App. 216, 220 (1994) (citing Justus v. Principi, 3 Vet. App. 510, 513 (1992)). In applying 38 C.F.R. § 3.156(b), the Court has clarified that: When a claim is filed and the RO renders an adverse decision, the claimant has the right to disagree with that decision by filing an NOD within one year from the date of mailing of notice of the decision. 38 U.S.C. § 7105(b)(1). However, "[n]ew and material evidence received prior to the expiration of the appeal period ... will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period." Muehl v. West, 13 Vet. App. 159, 161 (1999); see also Bond v. Shinseki, 659 F.3d 1362, 1368-69 (Fed.Cir.2011). Where documents are within VA's control and could reasonably be expected to be a part of the record, such documents are, in contemplation of law, before VA and should be included in the record. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). A. Type II Diabetes Mellitus 1. Prior Board and Rating Decisions In March 2004, the Board denied service connection for Type II diabetes mellitus as the disorder was not manifested during active service or for many years thereafter and was not otherwise related to active service. The Veteran was provided with a copy of the Board's decision. The evidence considered by the Board in reaching its decision may be briefly summarized. The service treatment records make no reference to diabetes mellitus. The Veteran's service personnel records do not indicate that he served in the Republic of Vietnam. VA treatment records dated in November 1999 note that the Veteran was diagnosed with diabetes mellitus. At a July 2003 hearing before a Veterans Law Judge, the Veteran testified that he had handled drums of Agent Orange while stationed at Homestead Air Force Base, Florida. The Veteran subsequently sought to reopen his claim of entitlement to service connection for Type II diabetes mellitus in January 2006. In December 2007, VA determined that new and material evidence had been received to reopen the Veteran's claim of entitlement to service connection for Type II diabetes mellitus and denied the claim on the merits as "the evidence of record does not show this condition was occurred in or was caused by" active service. The Veteran was informed of the adverse decision and his appellate rights in December 2007. The Veteran did not submit a NOD with the decision. The documentation considered by VA in reaching its December 2007 rating decision included the Veteran's service treatment records; VA examination and clinical documentation; private clinical documentation; the transcript from a May 2007 RO hearing before a VA decision review officer (DRO); and written statements from the Veteran. An August 2005 VA Agent Orange evaluation notes that the Veteran reported that he was in the Republic of Vietnam from 1972 to 1973. The Veteran was diagnosed with "diabetes mellitus since 1992." The remaining VA and private clinical documentation notes ongoing treatment of Type II diabetes mellitus. In his January 2006 application to reopen his claim of service connection, the Veteran indicated that he was exposed to Agent Orange and incurred Type II diabetes mellitus as the result of such exposure. New and material evidence pertaining to the issue of service connection for Type II diabetes mellitus was not received by VA or constructively in its possession within one year of written notice to the Veteran of the December 2007 rating decision; therefore, that decision became final. 38 C.F.R. § 3.156(b). 2. New and Material Evidence The additional documentation received since the December 2007 rating decision consists of VA examination and clinical documentation; private clinical documentation; photographs; and written statements from the Veteran. A May 2012 written statement from a VA physician conveys that the Veteran's "diagnosis of diabetes is directly related to Agent Orange exposure ... during his military service time during the Vietnam War." When considered with the previously evidence of record, the Board finds that the May 2012 VA physician's statement is of such significance that it raises a reasonable possibility of substantiating a claim of service connection for Type II diabetes mellitus. New and material evidence has been received to reopen service connection for Type II diabetes mellitus is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. (The issue of service connection for a Type II diabetes mellitus is further addressed in the Remand section below.) B. Hepatitis C Residuals 1. Prior Board and RO Decisions In March 2004, the Board denied service connection for hepatitis C residuals as the claimed disability was not manifested during active service or for many years thereafter and was not otherwise related to active service. The Veteran was provided with a copy of the Board's decision. The evidence of record considered by the Board in reaching its decision may be briefly summarized. The service treatment records make no reference to Hepatitis C. The report of the Veteran's December 1972 physical examination for service separation indicates that the Veteran had several tattoos on both extremities which were not noted on the physical examination for service entrance. VA clinical documentation dated in May 2000 states that the Veteran was diagnosed with hepatitis C. A November 2002 statement from the Veteran advances that he was exposed to blood during an inservice motor vehicle accident and he and his service roommate shared razors which could have been the cause or causes of his hepatitis C. A January 2003 VA examination report states that hepatitis C was initially diagnosed in 1995. The examiner opined that the Veteran "tested positive for drugs that may be the most likely cause." In January 2009, the Veteran sought to reopen his claim of entitlement to service connection for hepatitis C. In an October 2009 rating decision, the RO determined that new and material evidence had not been received to reopen the Veteran's claim for service connection for hepatitis C residuals. The Veteran was informed in writing of the adverse decision and his appellate rights in November 2009. He did not submit a NOD with the decision. The additional evidence considered by the RO in reaching its determination included photocopies of the Veteran's service treatment records; VA examination and clinical documentation; private clinical documentation; the transcript of the May 2007 DRO hearing; and written statements from the Veteran. VA clinical documentation dated from 2004 to 2011 reflects that the Veteran was treated for hepatitis C and endstage liver disease and underwent a January 2007 liver transplant. New and material evidence pertaining to the issue of service connection for hepatitis C residuals was not received by VA or constructively in its possession within one year of written notice to the Veteran of the October 2009 rating decision; therefore, that decision became final. 38 C.F.R. § 3.156(b). 2. New and Material Evidence The additional documentation received since the October 2009 rating decision consists of VA examination and clinical documentation; private clinical documentation; photographs; and written statements from the Veteran. The May 2012 written statement from a VA physician conveys that the Veteran's "diagnosis of diabetes is directly related to Agent Orange exposure ... during his military service time during the Vietnam War ... [and] his current conditions of ... liver sclerosis, and hepatitis C are complicated by his diagnosis of diabetes." When considered with the previously evidence of record, the Board finds that the May 2012 VA physician's statement is of such significance that it raises a reasonable possibility of substantiating a claim of service connection for current conditions of ... liver sclerosis, and hepatitis C are complicated . New and material evidence has been received to reopen service connection for hepatitis C residuals is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. (The issue of service connection for hepatitis C residuals is further addressed in the Remand section below.) ORDER The Veteran's application to reopen his claim of entitlement to service connection for Type II diabetes mellitus is granted. The Veteran's application to reopen his claim of entitlement to service connection for hepatitis C residuals is granted. REMAND In light of their reopening above, the Veteran's claims for service connection for Type II diabetes mellitus and hepatitis C residuals are to be adjudicated on the merits following a de novo review of the entire record. A January 2003 VA psychiatric treatment record states that the Veteran reported that he had applied for Social Security Administration (SSA) disability benefits. Documentation of the Veteran's SSA award of disability benefits, if any, and the evidence considered by the SSA in granting or denying the Veteran's claim is not of record. The Court has clarified that the VA's duty to assist the Veteran includes an obligation to obtain the records from the SSA. Masors v. Derwinski, 2 Vet. App. 181, 187-188 (1992). The Veteran was last afforded a VA evaluation which addressed his service-connected tinea versicolor in August 2008. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Clinical documentation dated after 2012 is not of record. VA should obtain all relevant VA and private clinical documentation which could potentially be helpful in resolving the Veteran's claims. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to all treatment of his Type II diabetes mellitus, hepatitis C residuals, eczema, and hypertension and his service-connected tinea versicolor of the chest and the back, including the names and addresses of all health care providers whose records have not already been provided to VA. Upon receipt of the requested information and the appropriate releases, the RO should contact all identified health care providers and request that they forward copies of all available clinical documentation pertaining to treatment of the appellant, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the appellant should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Associate with the record any VA clinical documentation pertaining to the treatment of the Veteran not already of record, including that provided after 2012. 3. Contact the SSA and request that it provide documentation of the Veteran's award of disability benefits or the denial thereof and copies of all records developed in association with the Veteran's claim for incorporation into the record. 4. Then schedule the Veteran for a VA skin examination in order to assist in determining relationship of the Veteran's claimed eczema to active service and the nature and severity of his service-connected tinea versicolor of the chest and back. All indicated tests and studies, including color photos, should be accomplished and the findings then reported in detail. The examiner should advance an opinion as to whether it is as likely as not (i.e., probability of 50 percent or more) that any identified eczema originated during active service and/or is related to and/or increased in severity beyond its natural progression due to a service-connected disability or disabilities. The examiner must indicate the effect of the Veteran's service-connected skin disability on his vocational pursuits. All relevant medical records, including those in the claims folders, should be made available to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. A rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 5. After the requested examination has been completed, the examination report should be reviewed to ensure that it is in compliance with the directives of this Remand. The report should be returned to the examiner if it is deficient in any manner. 6. Then adjudicate the Veteran's entitlement to service connection for both Type II diabetes mellitus and hepatitis C residuals to include liver cirrhosis on a de novo basis and readjudicate the remaining issues on appeal. If any benefit sought remains denied, the Veteran should be provided a supplemental statement of the case (SSOC) and an appropriate period of time 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). ______________________________________________ J. T. HUTCHESON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs