Citation Nr: 1417200 Decision Date: 04/17/14 Archive Date: 05/02/14 DOCKET NO. 10-20 664 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for chloracne. 2. Entitlement to service connection for chloracne. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD J. Jenkins, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1968 to July 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified at a March 2013 videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. At the Veteran's hearing the issue of entitlement to service connection for generalize arthritis was also discussed, however, that issue is not on appeal. The hearing was conducted without the benefit of the Veteran's claims file, and that fact was disclosed and discussed on the record at the hearing. Upon review of the file in preparation for this decision, the Board discovered that the May 2009 rating decision did deny entitlement to service connection for generalized arthritis, but the Notice of Disagreement, and the substantive appeal referenced only the Veteran's chloracne claim. No Statement of the Case has been issued on the claim of entitlement to service connection for arthritis, no appeal filed, and the issue has not been certified to the Board. Therefore, despite the discussion at the hearing, the Board finds that the issue of entitlement to service connection for generalized arthritis has not been appealed and is not currently before the Board. Cf. Percy v. Shinseki, 23 Vet. App. 37 (2009). The issue of entitlement to service connection for chloracne is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's claim was denied in a November 1993 rating decision; the Veteran did not perfect an appeal nor was any new and material evidence received within the appeal period. 2. The Veteran's claim was denied in a June 2006 rating decision; the Veteran did not perfect an appeal nor was any new and material evidence received within the appeal period. 3. Evidence received since the June 2006 rating decision is new and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for chloracne. CONCLUSIONS OF LAW 1. The November 1993 rating decision that denied service connection for chloracne is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1993); currently, 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). 2. The June 2006 rating decision that denied service connection for chloracne is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2005); currently, 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). 3. The criteria to reopen the claim for service connection for chloracne have been met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Given the favorable disposition of the action here, which is not prejudicial to the Veteran, the Board need not assess VA's compliance with the VCAA in the context of the issue of whether new and material evidence has been submitted to reopen the claims. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). New and Material Evidence Pertinent procedural regulations provide that nothing in 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013) shall be construed to require VA to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013). See 38 U.S.C.A. § 5103A(f) (West 2002 & Supp. 2013). Reopening a claim for service connection that was previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); Evans v. Brown, 9 Vet. App. 273, 285 (1996). New evidence means existing evidence not previously submitted to VA. 38 C.F.R. § 3.156(a) (2013). 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. Id. 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. Id. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. The United States Court of Appeals for Veterans Claims (Court) held that in determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The Court has also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In Elkins v. West, 12 Vet. App. 209 (1999), the Court held that the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) (2013) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013). Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). To determine whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis in conjunction with the evidence already of record. Id. In October 1992, the Veteran filed a claim to establish service connection for chloracne. The Veteran's claim was denied in a November 1993 rating decision, on the basis that a VA skin examination indicated that the Veteran was not diagnosed with chloracne. Although the Veteran was notified of this rating decision and his appellate rights, he did not perfect an appeal. Additionally, new and material evidence in support of the claim was not received within the appeal period. As such, the November 1993 rating decision became final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1993); currently, 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013); see also Bond v. Shinseki, 659 F.3d. 1362 (Fed. Cir. 2011). In March 2005, the Veteran filed a petition to reopen his claim for service connection. The Veteran's petition was denied in a June 2006 rating decision, which found that new and material evidence had not been recieved. Although the Veteran was notified of this rating decision and his appellate rights, he did not perfect an appeal. Additionally, new and material evidence in support of the claim was not received within the appeal period. As such, the June 2006 rating decision became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2005); currently, 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013); see also Bond v. Shinseki, 659 F.3d. 1362 (Fed. Cir. 2011). In January 2008, the Veteran filed another petition to reopen his claim for service connection for chloracne. The Veteran's claim was reopened and denied on its merits in an October 2008 rating decision, which found that the record contained no confirmed diagnosis of chloracne. New and material evidence in support of the claim was received within the appeal period, the RO readjudicated and again denied the Veteran's claim on the merits in a May 2009 rating decision. Although the RO reopened the previously denied claim, the Board is required to address the issue of new and material evidence in the first instance. If the Board determines that new and material evidence has not been received, the adjudication of the claim ends, and further analysis is neither required nor permitted. Any decision that the RO may have made with regard to a new and material claim is not binding on the Board. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Thus, despite the fact that the RO has already determined that new and material evidence sufficient to reopen the claim had been received, the Board will proceed to adjudicate the issue of new and material evidence in the first instance. The June 2006 rating decision denied service connection, finding that the Veteran had not been diagnosed with chloracne. Evidence received since the June 2006 rating decision includes VA treatment records. This evidence is new because it was not of record at the time of the final June 2006 rating decision. Furthermore, the evidence is material because it relates to unestablished facts necessary to substantiate the Veteran's claim of entitlement to service connection for chloracne. Specifically, a November 2008 VA dermatology consultation report noted that the Veteran was diagnosed with chloracne and that the association between herbicide exposure and chloracne was discussed with the patient. Thus, the Board finds that new and material evidence has been received since the prior final denial of this claim in the June 2006 rating decision. Shade, 24 Vet. App. at 117. On that basis, the Veteran's claim for entitlement to service connection for chloracne is reopened. ORDER New and material evidence having been received, the claim of entitlement to service connection for chloracne is reopened, and to that extent only, the appeal is granted. REMAND Having reopened the Veteran's claim for entitlement to service connection for chloracne, the Board finds that further development is needed prior to adjudicating the claim on its merits. The Board notes that the Veteran's last VA skin examination was in June 1993. At that time, the Veteran was diagnosed with mild acne and dermatosis papulosa nigra, but he was not diagnosed with chloracne. Accordingly, a nexus opinion addressing chloracne was not provided. Since the Veteran's last VA examination additional evidence has been associated with the claims file. Specifically, VA treatment records indicate that the Veteran was diagnosed with chloracne. Additionally, at his June 2012 decision review officer hearing, the Veteran, his wife, and his friend, L. P., testified that the Veteran began having recurrent cysts and bumps on his face shortly after returning from Vietnam. In light of the new evidence of record, the Veteran should be afforded a new VA skin examination to assess the nature and etiology of his chloracne. Shade v. Shinseki, 24 Vet. App. 110 (2010) (noting that upon reopening, a Veteran is entitled to the full benefits of the Secretary's duty to assist, including a medical nexus examination.). Additionally, the record suggests that there may be outstanding VA treatment records. A September 2011 printout of the master patient index noted that the Veteran may have been treated at the Augusta VAMC, Biloxi VAMC, Birmingham VAMC, Tuscaloosa VAMC, as well as the Northern California and Palo Alto Health Care Systems (HCS). A review of the record indicates that these treatment records have not been associated with the claims file. On remand, any outstanding treatment records must be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. Obtain all treatment records for the Veteran from July 1970 to present from the VA Medical Centers (VAMC) in Augusta, Biloxi, Birmingham, Tuscaloosa, as well as all records from the Northern California and Palo Alto HCS, and any associated outpatient clinics. Additionally, obtain all VA treatment records from the Montgomery VAMC dated from June 2010 to present, including records from any associated outpatient clinic. 2. Thereafter, provide the Veteran with a comprehensive VA examination to determine the nature and etiology of any identified skin disorder. The claims file and a copy of this remand must be made available to and be reviewed by the examiner in conjunction with the examination. Any special diagnostic tests that are deemed necessary for an accurate assessment must be conducted. The examiner must record all pertinent medical complaints, symptoms, and clinical findings, in detail. Upon a review of the record and examination of the Veteran, the examiner should respond to the following: a. Identify all diagnosable skin disorders. b. State whether it is at least as likely as not (50 percent probability or more) that any diagnosed skin condition, to include chloracne, is etiologically related to the Veteran's military service, to include his in-service herbicide exposure. 3. Thereafter, the RO should readjudicate the issue on appeal. If the benefit sought is not granted, issue a Supplemental Statement of the Case and afford the Veteran and his representative an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. 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). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs