Citation Nr: 1754926	
Decision Date: 11/30/17    Archive Date: 12/07/17

DOCKET NO.  14-07 139	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Whether new and material evidence has been received to reopen a claim for service connection for a skin disorder, claimed as chloracne.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

N. Snyder, Counsel






INTRODUCTION

The Veteran had active service from December 1966 to July 1970.  

This matter came before the Board of Veterans' Appeals (Board) from a November 2011 decision by the Department of Veterans Affairs (VA) Regional Office (RO).  

This matter was previously before the Board in March 2016, at which time it was remanded for additional development, notably for VA to obtain VA treatment records.  In the March 2016 decision, the Board also remanded the issue of entitlement to service connection for posttraumatic stress disorder.  In an August 2016 rating decision, the Appeal Management Center granted service connection for posttraumatic stress disorder.  As such, the appeal is satisfied with respect to that issue.


FINDING OF FACT

A November 2005 rating decision denied the application to reopen the claim for service connection for a skin disorder.  The evidence added to the record subsequent to the November 2005 decision is cumulative of the evidence previously of record or does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim.


CONCLUSION OF LAW

New and material evidence to reopen the claim of entitlement to service connection for a skin disorder has not been presented.  38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017).




REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A (West 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2017), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  

The record reflects that the duty to assist has been satisfied.  The available service medical records, VA treatment and examination records, and post-service medical evidence identified by the Veteran have been obtained, and the Veteran has been informed of the unavailability of certain reported VA treatment records and records from Dr. M.  The Veteran has not identified any outstanding, existing evidence that could be obtained to substantiate the claim decided herein.  Finally, the Board is satisfied that there has been substantial compliance with the directives issued in the Board remand.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).  Notably, the available VA treatment records (those dated after November 2011) were associated with the record.  

Accordingly, the Board will address the merits of the appellant's appeal. 

Legal Criteria

Generally, a claim that has been denied in an unappealed decision may not be reopened and allowed.  38 U.S.C. §§ 7104(b), 7105(c) (West 2012).  An 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 existing evidence not previously submitted to agency decisionmakers.  Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  Moreover, 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, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  38 C.F.R. § 3.156(b).

The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."  Shade v. Shinseki, 24 Vet. App. 110 (2010).  See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance).

For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). 

Analysis

An application to reopen a claim for service connection for a skin disorder was most recently denied in a November 2005 rating decision.  The application to reopen and initial denial of service connection in an August 1997 rating decision were denied because the Veteran had not been diagnosed with chloracne and the RO determined the diagnosed skin disorder was not incurred in active service or related to active service, including herbicide exposure therein.  The Veteran was notified of the decisions but did not appeal or submit pertinent evidence within the appeal period.  The evidence added to the record after the November 2005 rating decision includes medical records and statements from the Veteran.  The evidence added to the record is duplicative or cumulative of previously considered evidence, which already revealed the Veteran's history of skin rashes during and after service and diagnoses of skin disorders, notably dermatitis.  The evidence submitted since the last unappealed denial is cumulative of the evidence previously of record or does not relate to an unestablished fact necessary to substantiate the claim and raise a possibility of substantiating the claim.  Notably, the record is still absent new and material evidence that a current skin disorder began during or is otherwise related to active service.  The Board acknowledges that the threshold for reopening a claim is low, but it is a threshold nonetheless.  Shade, 24 Vet. App. at 110.  Thus, reopening of the claim is not warranted.  


ORDER

As new and material evidence has not been received, reopening of the claim for service connection for a skin disorder is denied.




____________________________________________
T. REYNOLDS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs