Citation Nr: 1705323 Decision Date: 02/22/17 Archive Date: 02/28/17 DOCKET NO. 12-33 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for tinnitus. 3. Entitlement to service connection for a skin disorder. REPRESENTATION Appellant represented by: Tennessee Department of Veterans Services ATTORNEY FOR THE BOARD B. Muetzel, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1964 to September 1966. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from a March 2010 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, in which the RO denied the entitlement to service connection for a skin disorder (asserted as chloracne), and declined to reopen the previously denied claim of service connection for bilateral hearing loss and tinnitus. In February 2011, the Veteran filed a Notice of Disagreement (NOD), which indicated that he was contesting all of the issues listed on the Rating Decision. 38 C.F.R. § 20.201 (2016). The RO issued the Veteran a Statement of the Case (SOC) in November 2012. The Veteran filed a timely Substantive Appeal, VA Form 9, in December 2012. The Board remanded the claim in February 2014. A Supplemental SOC was issued in July 2014 and the issues have been returned to the Board for adjudication. FINDINGS OF FACT 1. The Veteran's claim of entitlement to service connection for bilateral hearing loss was denied in March 2003, the Veteran did not appeal, and no new and material evidence was received within one year of the determination. 2. Evidence received since the March 2003 denial is either cumulative or redundant, and does not relate to an unestablished fact necessary to establish the claim, or raise a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss. 3. The Veteran's claim of entitlement to service connection for tinnitus was denied in March 2003, the Veteran did not appeal, and no new and material evidence was received within one year of the determination. 4. Evidence received since the March 2003 denial is either cumulative or redundant, and does not relate to an unestablished fact necessary to establish the claim, or raise a reasonable possibility of substantiating the claim of entitlement to service connection for tinnitus. 5. The evidence of record is at least in relative equipoise as to whether the Veteran's skin disorder, variously diagnosed as folliculitis and acne, had its onset in service. CONCLUSIONS OF LAW 1. The March 2003 decision denied entitlement to service connection for bilateral hearing loss became final; and no new and material evidence has been received to reopen this matter. 38 U.S.C.A. §§ 5108, 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2016). 2. The March 2003 decision denied entitlement to service connection for tinnitus became final; and no new and material evidence has been received to reopen this matter. 38 U.S.C.A. §§ 5108, 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2016). 3. Resolving all reasonable doubt in the Veteran's favor, the criteria for establishing service connection for a skin disorder, variously diagnosed as folliculitis and acne, are met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implantation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2016). VA's duty to notify was satisfied by a letter dated in February 2010. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. The record contains the VA and service treatment records, the Veteran's statements, and statements from the Veteran's wife and friend. Additionally, the RO substantially complied with prior remand instructions regarding his claim. The previous remand instructed the RO to obtain outstanding VA treatment records that were not associated with the Veteran's claims file, including the records the Veteran identified from VA treatment centers in Knoxville, Murfreesboro, and Nashville. These records were obtained in March 2014. The remand also instructed the RO to provide a VA examination regarding his claim for entitlement to service connection for a skin disorder. The examination was provided in March 2014. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. Stegall v. West, 11 Vet. App. 268 (1998). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 539, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. New and Material Evidence A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2016). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2014); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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) (2016). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curium) (holding that the "presumption of credibility" doctrine continues to be precedent). The Veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus were originally denied by a March 2003 rating decision because the RO determined that the conditions were not shown to be incurred in or aggravated by military service. An examination had been provided in February 2003 and the examiner had opined that the Veteran's hearing loss and tinnitus could not be linked to service. The RO notified the Veteran of its decision, and of his appellate rights, but he did not initiate an appeal of the rating decision within one year, nor was any new and material evidence received within a year. 38 C.F.R. § 3.156(b) (2016). As a result, the February 2007 rating decision became final. 38 U.S.C.A. §§ 7105 (West 2014); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2016). Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2016); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Veteran filed a request to reopen the claim for entitlement to service connection for bilateral hearing loss and tinnitus in January 2010; and, by a March 2010 rating decision, the RO declined to reopen the claims. As such, the Board must decide the threshold issue of whether the evidence is new and material before addressing the merits of a claim. See Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001); Barnett, 83 F.3d at 1380. The relevant evidence added to the record since the last final denial includes VA treatment records and the Veteran's statements. The treatment records show that the Veteran has continued to experience hearing loss and tinnitus. The Veteran also submitted a statement in September 2013 indicating that he was exposed to loud noises during his period of service, to include his service in the Republic of Vietnam. In May 2014, he submitted a statement that detailed the noise exposure he endured during his period of active duty. To the extent the Veteran states that he was exposed to loud noise while performing combat service in the Republic of Vietnam and as result he experienced hearing problems and tinnitus in service, the evidence is not new as it is cumulative, that is, supporting evidence of previously considered evidence, namely, the Veteran's previously articulated statements made at the time of the February 2003 VA examination substantially reiterated the same contentions. Loud noise exposure due to the Veteran's combat service in the Republic of Vietnam has already been conceded as the February 2003 VA examiner considered this fact when rendering her medical opinion, despite the fact she provided a negative nexus opinion. Such cumulative evidence does not meet the regulatory definition of new and material evidence under 38 C.F.R. § 3.156(a). Also, the VA treatment records obtained since the last final denial are new, in that such records were not previously associated with the claims file. Because the medical evidence on file at the time of the March 2003 rating decision had already established a post-service diagnosis of bilateral hearing loss and tinnitus, this evidence is not new. As such, the evidence is cumulative, that is, supporting evidence of previously considered evidence, namely the previous diagnoses of these same conditions in the February 2003 VA examination report. Again, cumulative evidence does not meet the regulatory definition of new and material under 38 C.F.R. § 3.156(a). Accordingly, the Board determines that the additional evidence received since the March 2003 rating decision is not "new" as it is cumulative and redundant of the facts previously established by the record and thus provides no basis to reopen the claims of service connection for bilateral hearing loss and tinnitus. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). III. Service Connection The Veteran seeks entitlement to service connection for a skin disorder, which was previously characterized as a claim for entitlement to service connection for chloracne. He contends that the condition is related to his period of service, to include his exposure to herbicide agents. Legal Criteria The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000). In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2016). Service connection generally requires credible and competent evidence showing: (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. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); 38 C.F.R. § 3.303. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. See Masors v. Derwinski, 2 Vet. App. 181 (1992). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can be competent and sufficient evidence of a diagnosis or used to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Factual Background Service treatment records were reviewed. On entrance to service in July 1964, the Veteran denied a history of any problems related to his skin. At separation in September 1966, the Veteran endorsed a history of mumps and boils. His separation examination was normal, and there is a notation on his report of medical history that the Veteran's positive responses were reviewed and "found to be of no medical significance." VA treatment records show that the Veteran has been diagnosed with and treated for folliculitis and acne. Acne and folliculitis are both consistently noted in the Veteran's problem list. In December 2004, the Veteran's skin lesions were noted and he was recommended for a follow-up with dermatology. In March 2005, the assessment noted a history of folliculitis in the scalp and acne. Folliculitis and acne was noted in November 2005. He had papules on the forehead and temples as well as the back. The Veteran's folliculitis was also noted in January 2006. In March 2007, the Veteran's skin conditions were note to be well-controlled with benzoyl peroxide wash, tretinoin cream, and clindamycin solution. Acne vulgaris and folliculitis was noted in February 2008. In October 2009, the Veteran was seen for a skin examination and follow up for acne vulgaris and folliculitis. He was using benzoyl peroxide wash and clindamycin. The Veteran had discontinued minocycline because it had not improved his rash. January 2010 records show that the Veteran was seen for a follow-up examination for acne vulgaris and folliculitis. In April 2010, the Veteran was seen for a follow up for his acne vulgaris and folliculitis. It was noted that the symptoms were present on the Veteran's scalp and trunk. The examiner noted that the benzoyl peroxide wash and bar as well as the clindamycin solution had helped. The Veteran reported he had been treated with tetracyclines in the past, but they did not work. The Veteran did not have a breakout at the time of his examination but he reported getting outbreaks monthly. The examination revealed no primary lesions on the scalp or back. The examination included the face, scalp, neck, eyelids, lips, chest, abdomen, back, and upper right and left extremities. The Veteran was prescribed amoxicillin, bleach baths, and Bactroban in nares. In July 2010, the treatment records noted intermittent flares of folliculitis on the Veteran's back. The Veteran was having a folliculitis and acne flare at the time of his appointment. The Veteran asked the clinician whether the acne or folliculitis represented chloracne due to Agent Orange and the clinician told him that he needed a compensation and pension examination to make that determination, since the symptoms did not appear to be chloracne. There were no comedones noted. In September 2012, it was noted that the Veteran had used Minocycline for acne flares on his scalp. He also reported use of Mupirocin topically. In September 2012, the Veteran was seen for a dermatology consult. It was noted that he had isolated scale pink macules on his head and face as well as his chest and abdomen. The assessment was mild folliculitis on trunk with none on the scalp at the time of examination. He also had actinic damage to the face. The plan included continued benzoyl peroxide daily. In September 2013, the treatment records showed that the Veteran had a flare that caused follicular pink papules on his scalp, his right antihelix, and on his shoulder. The assessment was folliculitis and he was given minocycline and told to continue benzoyl peroxide wash. The Veteran's friend R.B. provided a lay statement, received in February 2011, concerning the Veteran's condition. He noted that he had known the Veteran since they were children; they had grown up together. The lay statement noted that the Veteran had normal childhood illnesses and mild acne during puberty. The lay statement noted that after the Veteran returned from Vietnam he began to have lesions. R.B. described the lesions as a very serious case of acne that appeared on the Veteran's face, on his head, behind his ears, and in his arm pits. The lay statement noted that the Veteran experienced fatigue and weight loss. The Veteran's wife also submitted a statement, received in February 2011, regarding the Veteran's condition. She noted that she met the Veteran in February 1967 and that they were married in August 1967. She noted that, by the time they were married, he had a "serious breakout problem" with blackheads and acne. She stated that these breakouts were present throughout the preceding 43 years. She reported that the symptoms occurred on the Veteran's scalp, neck, face, back, and arms. The Veteran's wife noted that he was "consistently plagued" by the irritating skin disorder. She noted that the breakouts often itch, ooze, and bleed. She indicated that she often had to change otherwise clean bedding because of the problem. She noted that the Veteran had sought consistent treatment for the condition but that he continued to "battle" it. A VA examination was provided in March 2014. The examiner conducted an in-person examination and reviewed the claims file. The examiner noted the diagnosis of folliculitis and acne. The Veteran reported during his examination that he had a history of pimples and boils since one year after his discharge from service. The Veteran stated that he continued to have these symptoms. The examiner noted that the medical records noted diagnoses of folliculitis and acne that had been treated with benleperoxide and minocycline. The examiner noted a diagnosis of superficial acne affecting body areas other than the face and neck. The examiner opined that the condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the records also contained an opinion from a dermatologist that the skin condition was not consisted with chloracne. To date, the examiner noted, VA only recognizes the skin disorder of chloracne as related to exposure herbicide agents or Agent Orange. The examiner noted that the clinical examination did not reveal the deep scarring and pits, comedones, or active cystic acne that is characteristic of chloracne as related to herbicide agent exposure. The examiner stated that the Veteran's acne and folliculitis is not consistent with chloracne. Analysis Initially, the Board notes that the Veteran has multiple post-service diagnoses of folliculitis and acne. Most recently, the VA examiner who conducted the March 2014 VA examination affirmed the diagnoses of folliculitis and acne. The Board therefore finds that the evidence demonstrates a present disability, meeting the first requirement for the establishment of service connection. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). As for the second requirement for service connection, that a disease or injury was incurred or aggravated during service, the Board finds that the evidence supports the Veteran's contention that he suffered from a skin condition in service and upon separation. The Veteran's September 1966 separation report of medical history shows that the Veteran endorsed a history of mumps and boils. At entrance, the Veteran had denied a history related to both of these conditions. This evidence is highly probative as it provides insight into the Veteran's symptoms at the time of discharge. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the veteran wrote during treatment than to his subsequent assertion years later); see also Fed. R. Evid. 803 (3) (a contemporaneous statement as to a declarant's then-existing physical condition (as opposed to his current statements of memory or belief to prove the fact remembered or believed) is recognized as possessing circumstantial guarantees of trustworthiness). Therefore, Shedden element (2) is met. As for Shedden element (3), nexus, the Board finds that the evidence is at least in equipoise that the Veteran currently suffers from a skin disorder that had its onset during service. The Veteran has submitted lay statements from his wife and a friend who has known him since childhood, both of which assert that the Veteran has suffered from skin symptoms since his separation from service. The Veteran has also provided competent and credible lay testimony that his skin symptoms began in service and persists to present. The statements by the Veteran, his friend, and his wife, have all competently and credibly described the Veteran's skin symptoms after discharge to present. As noted above, lay evidence can be competent and sufficient evidence of a diagnosis or used to establish etiology if lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1376-77 (Fed. Cir. 2007). In this case, the lay evidence offered by the Veteran, his wife, and his friend, describes symptoms that were formed the basis of the current diagnoses of folliculitis and acne noted in the VA medical records and VA examination in March 2014. The Board acknowledges the March 2014 VA examiner's opinion that the Veteran's current skin disorder does not conform to the diagnosis of chloracne, which is presumptively related to herbicide agent exposure. However, under the benefit of the doubt rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The VA examiner did not discuss whether the Veteran's presently diagnosed acne or folliculitis is related to the Veteran's period of service, to include his assertions in his separation report of medical history that he had a history of mumps and boils. The examiner also did not address the lay statements provided by the Veteran, his friend, and his wife, which provided competent and credible lay testimony that the Veteran has skin symptoms that have been present since he separated from service. The Veteran has maintained a consistent account of his in-service injury and subsequent symptoms; these symptoms were reported by him at separation, he has provided competent and credible lay statements that show that he has continued to have skin symptoms after service, and the post-service treatment records confirm his continued symptoms as well as the present diagnosis of acne and folliculitis. Given the evidence of record, the Board resolves all reasonable doubt in the Veteran's favor and finds that the record evidence supports the establishment of service connection for a skin disorder, variously diagnosed as folliculitis and acne. ORDER As new and material evidence has not been received, the claim of entitlement to service connection for bilateral hearing loss is not reopened and the appeal is denied. As new and material evidence has not been received, the claim of entitlement to service connection for tinnitus is not reopened and the appeal is denied. Entitlement to service connection for a skin disorder, variously diagnosed as folliculitis and acne, is granted. ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs