Citation Nr: 1523157 Decision Date: 06/02/15 Archive Date: 06/16/15 DOCKET NO. 12-32 163 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a skin disorder, to include as presumptive based on herbicide exposure. 2. Entitlement to service connection for a skin disorder, to include as presumptive based on herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. A. Hoffman, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1970 to December 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The VA Form 9 submitted in November 2012 also addressed a service connection claim for ischemic heart disease (IHD). However, a claim for service connection of coronary artery disease was granted in August 2013. That rating decision was a grant of IHD benefits sought on appeal, and therefore the IHD claim for service connection is no longer on appeal. Regardless of the RO's decision on reopening the Veteran's service connection claim for tinea versicolor, to include as secondary to Agent Orange exposure, the Board is nevertheless required to address the issue of reopening to determine whether new and material evidence has been submitted. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). This appeal was processed using the Veteran's paper file, as well as electronic VA folders (Virtual and VBMS). The United States Court of Appeals for Veterans Claims (Court) addressed the scope of a claim in regard to a claimed disability in Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Clemons, the Court held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. Id. at 5. As recent medical records do not show a current diagnosis related to the Veteran's rash claim, and the Veteran asserts generally that he has rash symptoms, the issue has been recharacterized as reflected on the title page, which will provide the most favorable review of the Veteran's claim in keeping with the Court's holding in Clemons. The issue of entitlement to service connection for a skin disorder, to include as presumptive based on herbicide exposure, 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 previous claim of service connection for a skin condition (tinea versicolor) associated with Agent Orange was denied in July 1982. The Veteran did not appeal or submit new and material evidence within one year of the denial. 2. Evidence received since the July 1982 rating decision raises a reasonable possibility of substantiating the Veteran's skin disorder claim, to include as presumptive based on herbicide exposure. CONCLUSIONS OF LAW 1. The July 1982 rating decision which denied entitlement to service connection for a skin condition (tinea versicolor) associated with Agent Orange is final. 38 U.S.C. § 4005(c) (1976); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1982). 2. Evidence received since the July 1982 rating decision relating to the Veteran's claim for entitlement to service connection a skin disorder, to include as presumptive based on herbicide exposure, is new and material, and, therefore, the claim may be reopened. 38 U.S.C.A. §§ 5108, 7104, 7105 (West 2014); 38 C.F.R. § 3.156 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case (SOC) has been furnished, a timely filed substantive appeal. 38 C.F.R. §§ 20.200, 20.302 (2014). Absent appeal, a decision by the agency of original jurisdiction is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103 (2014). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. 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). The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). New evidence raises a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran seeks to reopen his claim for entitlement to service connection for a skin disorder, to include as presumptive based on herbicide exposure. To establish service connection a Veteran must generally show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Because the Veteran is presumed to have been exposed to herbicides during his service, the diseases listed in 38 C.F.R. § 3.309(e) shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during sevice, provided that the rebuttable presumption provisions of 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2014). The RO denied service connection for a skin condition (tinea versicolor) associated with Agent Orange in an unappealed July 1982 rating decision based upon findings of an acute infection in service and no nexus between the then-current skin disability and that event. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran did not appeal; therefore, the July 1982 rating decision is final. In April 2010, the Veteran sought to reopen his claim for entitlement to service connection for tinea versicolor, to include as secondary to Agent Orange exposure. In the associated letter, he stated that right after Vietnam he was treated for rashes all over his body. In a subsequent letter in June 2010, the Veteran stated he was treated at the Milwaukee VA in 1973 for "burns," but then stated they were not burns, but then stated that VA medical personnel, as well as other medical personnel, referred to them as "chemical burns." While difficult to parse, the Board infers the Veteran is generally suggesting that his skin condition was the result of the herbicide exposure. After the February 2011 rating decision denying the Veteran's claim to reopen his service connection claim for tinea versicolor, the Veteran submitted a notice of disagreement and statement in March 2011. In that letter, the Veteran stated he has had rashes since coming back from Vietnam. The Veteran also stated the VA treated him for the rash in 1974 with some smelling soap. In June 2011, the Veteran submitted another statement saying that VA physicians have recently observed rashes all over his arms and chest, but do not annotate this in his records. The Board notes that the Veteran regularly asserts that there are missing entries in existing VA medical records and existing service treatment records. In sum, the Veteran has recently stated he has had continuous symptoms of a skin disorder - consistent rashes about the chest and arms - since service. There is no evidence of the Veteran alleging continuous symptoms prior to the unappealed July 1982 rating decision; therefore, the evidence is new. Although medical evidence is generally necessary for a nexus to service, lay evidence can also be sufficient as a foundation for a future nexus opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Given that the Veteran's lay evidence of continuous symptoms could be sufficient as a foundation for a nexus opinion, under Jandreau, it is material. The Veteran, thus, has submitted new and material evidence to agency decision makers. Having established that the evidence submitted by the Veteran regarding continuous symptoms is new and material, the Board does not reach a determination regarding the credibility of the Veteran's statements because credibility is presumed for the limited purpose of establishing whether new and material evidence has been submitted. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Because new and material evidence has been received, the claim for service connection for a skin disorder, to include as presumptive based on herbicide exposure, is reopened. ORDER New and material evidence having been received, the claim of service connection for a skin disorder, to include as presumptive based on herbicide exposure, is reopened. REMAND Having found sufficient evidence to reopen the previously denied claim, the Board finds that additional development is required before adjudication on the merits. A VA examination is necessary prior to final adjudication of a claim 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 evidence establishing certain diseases manifested during an applicable presumption period for which the veteran qualifies, (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 of record for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the third factor above, the Court of Appeals for Veterans' Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. McLendon, 20 Vet. App. at 83. While the Veteran is not competent to diagnose the specific nature of the rash on his body, he is competent to say that he has observed rashes on his body. His lay statements tend to associate the rash with his service. Under the very low threshold of McLendon, the Board finds that a VA examination is necessary to determine the nature and etiology of the current rash. The Veteran contends that he was treated at a VA medical center in Milwaukee, Wisconsin in 1973. The earliest VA treatment records are in 1974. An attempt to obtain 1973 records should be made. The most recent VA treatment records in the virtual claims file are dated March 24, 2015. The Veteran's more recent VA treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain copies of the Veteran's claimed treatment at a VA medical center in Milwaukee, Wisconsin in 1973. 2. Obtain copies of all the Veteran's VA treatment records dated from March 25, 2015 to present. 3. Request that the Veteran provide the names and addresses of all medical providers who have records regarding his treatment for his skin disorder which have not already been associated with the claims file. After the Veteran has signed any appropriate releases, obtain and associate with the claims file all of the Veteran's treatment records. All attempts to procure records should be documented in the file. If any records cannot be obtained, a notation to that effect should be inserted in the file. The Veteran and his representative should be notified of unsuccessful efforts to procure records in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 4. After the above has been completed, afford the Veteran a VA medical examination for a skin disorder. The examination should determine the nature and etiology of any diagnosed skin disorder. The claims folder should be forwarded to the examiner for review. Following review of the claims folder, the examiner should opine as follows: whether it is at least as likely as not (50 percent probability or more) that any current skin disorder is related to the Veteran's active military service. The VA examiner's attention is directed to the service treatment records that document treatment for low grade infected lesions of the arm and hands in April 1971, the service personnel records that document that he served in-country in Vietnam from January 1972 to December 1972 (and thus has presumed exposure to herbicides), as well as the competent lay statements of the Veteran regarding his symptoms. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Note that the Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between service and the currently diagnosed skin disorder, and alternatively his exposure to herbicides. Likewise, the mere fact that a presumption has not been established for the particular disorders at issue is not dispositive of the issue of nexus. Consideration must still be given to the exposure. 5. Then readjudicate the Veteran's claim after ensuring that any other development deemed warranted is complete. If the benefit sought is not granted to the Veteran's satisfaction, the Veteran and the Veteran's representative should be furnished a supplemental statement of the case and afforded the opportunity to respond. The case should then be returned to the Board for appellate review, if indicated. The appellant 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. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs