Citation Nr: 1620797 Decision Date: 05/23/16 Archive Date: 06/02/16 DOCKET NO. 12-27 715 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a skin disability, and if so, whether service connection should be granted. 2. Entitlement to a rating greater than 10 percent for right knee degenerative joint disease (DJD), limitation of flexion. 3. Entitlement to a compensable rating for right knee DJD, limitation of extension. 4. Entitlement to a rating greater than 10 percent for left knee arthritis, limitation of flexion. 5. Entitlement to a compensable rating for left knee arthritis, limitation of extension. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Cheng, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1986 until December 1986 and again from November 1990 to June 1991. The matter of entitlement to service connection for any skin disease was initially claimed as tinea versicolor, which later was claimed as a skin rash, and most recently was claimed as psoriasis. However, when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. As such the Board has recharacterized the issue as entitlement to service connection for a skin condition, rather than parsing out whether the claim is for psoriasis or another type of skin disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The matter of tinea versicolor (claimed as skin rash) comes before the Board of Veterans' Appeals (Board) from an December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In that decision, the RO denied the Veteran's petition to reopen a claim of service connection for tinea versicolor (claimed as a skin rash) as new and material evidence had not been submitted. A claim for entitlement to service connection for psoriasis was denied in an August 2011 rating decision. The Board remanded the matters as a claim for skin disease in March 2014 to provide the Veteran his requested Travel Board hearing. A more detailed procedural history is provided below. During the pendency of the appeal, the Veteran had also filed his substantive appeal in June 2014 for an increased rating for his left and right knee disabilities. The matters of the Veteran's left knee and right knee disabilities come before the Board from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In March 2016, the Veteran testified at a hearing before the undersigned judge and a transcript of that hearing has been associated with his claims folder. The issues of entitlement to increased ratings for right knee DJD limitation of flexion and extension and left knee arthritis limitation of flexion and extension are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An August 2004 Board decision denied service connection for a skin disability. That decision is final. 2. The evidence associated with the claims file subsequent to the August 2004 Board decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a skin disability. 3. The evidence is at least in equipoise that the Veteran's skin disability is causally or etiologically related to his military service. CONCLUSIONS OF LAW 1. The August 2004 Board decision denying service connection for skin rash (currently a claim for a skin disability) is final; new and material evidence having been presented, the claim is reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2002 and West 2014); 38 C.F.R. §§ 3.156, 20.1100 (2004 and 2015). 2. Criteria for service connection for a skin disability have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty 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 its notice and assistance obligations in the context of the issue of whether new and material evidence has been submitted to reopen the claim. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. New and Material Evidence Generally, a claim that has been denied by the Board may not thereafter be reopened and allowed. 38 U.S.C.A. § 7104. The exception to this rule is 38 U.S.C.A. § 5108, which provides that 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. New evidence is defined as 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). New and material evidence is not required as to each previously unproven element of a claim. There is a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Here, the Board denied service connection for a skin rash in August 2004 finding there was no new and material evidence. That decision is final. A subsequent rating decision in December 2009 confirmed and continued the denial of service connection for skin rash, finding there was no new and material evidence. A December 2010 rating decision reopened the claim, finding there was new and material evidence but continued the denial, finding the evidence failed to show the condition was related to military service nor was there any evidence that the claimed condition exists. The Veteran filed his Notice of Disagreement (NOD) later that month but withdrew the NOD in January 2011. The Veteran added psoriasis to his claim in April 2011. An August 2011 rating decision denied entitlement to service connection finding there was not a relationship between the psoriasis and the in-service diagnosis of tinea versicolor. In October 2011, the Veteran filed his NOD to include any skin condition, tinea versicolor and/or psoriasis. The Veteran filed his substantive appeal in October 2012. As noted above, the Board remanded the matters as a claim for skin disease in March 2014 to provide the Veteran his requested Travel Board hearing. Pertinent evidence of record at the time of the August 2004 Board decision included the Veteran's service treatment records (STRs), lay statements, and post-service VA and private treatment records. According to the Board's decision, the Board noted the treatment records documented the presence of skin-related conditions but ultimately found there was no competent medical evidence that served to link the Veteran's current skin disability to service. The pertinent evidence received since the August 2004 Board decision includes the Veteran's May 2016 hearing testimony in which he claimed that the skin condition he currently and continually experienced since separation from active service was the same type of rash he experienced while in service. Additionally, the Veteran has provided the Board with statements from his private physician, dated February 2012, who noted that, "[t]he [Veteran] has had a long-standing rash that likely represented psoriasis all along" and another dated in October 2012, in which the physician opined that "the [Veteran] has likely had psoriasis since he began originally having skin problems. Had a biopsy been done very early on, this would have likely confirmed this." As noted, this evidence is presumed to be credible for the limited purpose of reopening the claim. The Board finds that the referenced statements made by the Veteran and his private physician are new and material. The Board notes that the evidence is not cumulative or redundant of the evidence previously of record. Moreover, it raises a reasonable possibility of substantiating the claim. Accordingly, reopening of the claim of entitlement to service connection for a skin disability is warranted. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires (1) evidence of 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 current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that his skin disability began during active service. Specifically, he alleges that the rash that he complained of in December 1990, marked the onset of his current skin disability. A review of the STRs confirms that the Veteran complained of a rash that itched on his chest on December 7, 1990. The evaluator noted there was "[f]ine pe[e]ling mild hypopigmented generalized lesions over anterior chest, neck, and post upper dorsal region" and assessed tinea versicolor. Although the Veteran denied a history of skin diseases on a May 29, 1991 Report of Medical History, the following in-service evaluations, all dated May 29, 1991, confirmed the Veteran experienced skin-related issues during service: an Operations Desert Shield/Desert Storm screening noted the Veteran's "[r]ash trunk x 3 months"; a Southwest Asia Demobilization/ Redeployment Medical Evaluation indicated the Veteran had "rash, skin infection, or sores"; and a Report of Medical Examination indicated the skin was abnormal for "hypopigmented nodules trunk[.]" The Board notes that on the Veteran's April 1986 Report of Medical History associated with his enlistment, the Veteran denied a history of skin diseases and his "skin, lymphatics" was noted as normal on the associated enlistment report of medical examination. Approximately 15 months after separation, in September 1992, the Veteran filed his claim for entitlement to service connection for tinea versicolor. A December 1992 general VA examination assigned a diagnosis of "tinea versicolor, involving skin of the anterior chest and upper back." A February 1993 rating decision denied service connection. An October 1997 treatment record noted the Veteran's skin lesions over his forehead and dry rash in front of his chest. A January 1998 noted a follow up for dermatitis and rash on the Veteran's face. An April 1998 medical record noted that a consult to dermatology was entered. The Veteran filed a request to reopen his claim in October 1999. In a private treatment record from April 2000, the Veteran was noted to have "several very slightly scaly plaques....distributed on the lower part of the neck and very upper portions of the shoulder....[and] in between the eyebrows." The records also indicated he had been experiencing these lesions on his face and neck for the last three to four years. In February 2002, the Veteran was noted to have "macular hyperpigmentation consistent with tinea versicolor mainly present on the chest, back and shoulders." In March 2004, the Veteran first biopsy results reported a diagnosis of psoriasis. In March 2004, a private physician, Dr. W. Mark Hinds, noted the Veteran appeared to have psoriasis and opined that after reviewing the Veteran's VA treatment records, the skin "condition that he was treated for by the VA was probably the same process." The Veteran was provided with another VA examination in September 2004. The Veteran was diagnosed with psoriasis and the examiner found that this problem "began while [the Veteran] was on active duty and ha[s] persisted." The Veteran was provided another VA examination in October 2010. The examiner provided a negative opinion, finding that the Veteran's current diagnosis of psoriasis is different from the in-service diagnosis of tinea versicolor. The examiner's basis was that, unlike tinea versicolor, psoriasis is not caused by a fungus and that the two conditions are entirely different skin conditions. The examiner also noted "a review of the literature does not show instances where fungal infection have been shown to predispose a patient to subsequent development of psoriasis." The Veteran was provided another skin biopsy in March 2011. The reviewing physician diagnosed superficial psoriasiform dermatitis with mild spongiosis and noted that overall, the features slightly favored psoriasis. In August 2011, the Veteran was noted to have red scaly plaques on his knees and elbows and anterior lower legs. A diagnosis of psoriasis was assigned. A private physician, Dr. Mark G. Tusa, in a February 2012 statement, noted after reviewing the Veteran's "past military medical records" that the Veteran "has likely had psoriasis since he began originally having skin problems. Had a biopsy been done very early on this would have likely confirmed this." In an October 2012 statement, Dr. Tusa reiterated his opinion. The Veteran highlighted in a January 2013 statement that the in-service diagnosis of tinea versicolor was given despite the fact that there was no skin biopsy conducted. The Veteran was provided with another VA examination in February 2015. The examiner provided a negative opinion, finding that the Veteran's in-service skin condition was noted mainly over his trunk and his current psoriasis affects mainly his upper and lower extremities. The examiner also noted that psoriasis is not a fungal infection as is tinea versicolor and tinea corporis. As noted previously, the March 2016 Board hearing, the Veteran claimed that the rash he has now is the same as the rash he experienced in active service. There are several opposing medical opinions of record in this case addressing the etiology of the Veteran's skin disability. When evaluating the evidence of record, the Board must assess the credibility and probative value of the evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). Here, there are medical opinions which reached opposite conclusions. However, when comparing the opinions, the Board does not find one to be significantly more probative than the other, as the medical professionals conducted a review of the Veteran's medical records. Moreover, the negative opinions provided did not consider that the prior in-service diagnosis was based on findings not supported by a skin biopsy. Because the opinions cannot be substantively differentiated, they are found to be in relative equipoise; and in such a situation VA regulations require that reasonable doubt be resolved in the Veteran's favor. Accordingly, service connection for a skin disability is granted. ORDER New and material evidence has been received and reopening of the claim of entitlement to service connection for a skin disability is granted. Service connection for a skin disability is granted. REMAND The Board finds that additional development is needed before the Veteran's remaining claims on appeal are decided. At the March 2016 Board hearing, the Veteran testified that his right and left knee symptomatology had worsened since the last VA examination in March 2015. Specifically, the Veteran has claimed there is additional limitation of motion in his knees which has further limited his functional ability; his knees has locked up once or twice; and he has had increased discomfort, swelling, and pain in his knees. The Board notes that the March 2015 VA examination did not conduct an evaluation of the right knee. The most recent VA examination of the right knee was in September 2013. As the Veteran's right knee and left knee disabilities may have worsened since his last examination, the Board finds that a new VA examination is warranted to determine the current severity of the disabilities. Accordingly, the case is REMANDED for the following action: 1. Obtain up to date VA treatment records for the Veteran's knees from the VA facilities in Waco and Temple, Texas. 2. Schedule the Veteran for VA examinations to address the current nature and severity of his right knee and left knee disabilities. 3. Then, readjudicate the Veteran's claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The Veteran has the right to submit additional evidence and argument on the 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. ______________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs