Citation Nr: 1757597 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 11-25 724 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim for service connection for a body rash, diagnosed as tinea versicolor, and if so, whether the claim should be granted. 2. Whether new and material evidence has been submitted to reopen the claim for service connection for a skin disability affecting the bilateral feet, and if so, whether the claim should be granted. 3. Entitlement to an initial compensable disability rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Hampton, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1972 to November 1976, with additional service in the United States Army Reserve. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. Jurisdiction over the Veteran's claims was subsequently transferred to the RO in Indianapolis, Indiana. In April 2012, the Veteran testified before the undersigned Veterans Law Judge at a hearing at his local RO (Travel Board hearing). A transcript of the hearing has been associated with the record. In December 2013, the Board remanded the case for additional development. The case is now again before the Board for further appellate consideration. The Board wishes to provide a measure of clarity regarding the procedural history related to the Veteran's claims for service connection for skin disabilities affecting different areas of the body. In this regard, the Veteran initially filed a claim for service connection for "skin fungus" in March 1985, and did not specify which area of the body the condition affected. In a July 1985 rating decision, following a VA skin examination performed in May 1985, the Veteran's condition was characterized as "fungus dermatitis of chest, arms, and feet," and the claim was denied. Subsequently, in January 2009, the Veteran filed a claim for service connection for jungle rot of the feet. In the August 2009 rating decision on appeal, the RO denied the claim, while noting that the condition at issue was "previously claimed as fungus dermatitis of the chest, arms, and feet," after finding that no new and material evidence had been presented to reopen the previously-denied claim. Subsequently, the Veteran continued to pursue his claim as if the condition at issue involved both areas on his upper body and his feet. Specifically, in an August 2009 statement, he disagreed with a VA examiner's findings with regard to the date of onset of his "body rash," and in September 2009, he submitted a letter by his private physician to the effect that the his rash involving his upper and lower back, shoulders, chest, and flanks, had originated during service. The Veteran filed a notice of disagreement (NOD) with the August 2009 rating decision in August 2010, and in September 2011, the RO issued a statement of the case (SOC), continuing its denial of service connection for "jungle rot of the feet (previously claimed as Fungus Dermatitis of Chest, Arms, and Feet)." In September 2011, the Veteran perfected an appeal with respect to all issues listed on the SOC. In January 2012, the RO issued a supplemental SOC (SSOC), continuing its denial of "service connection for jungle rot, fungus dermatitis of chest, arms, and feet." In a February 2012 letter to the Veteran's congressman, a VA Congressional Liaison stated the issue of entitlement to service connection for a body rash had been erroneously combined with the issue of service connection for jungle rot of the feet. Subsequently, and to the present day, VA has not treated the issue of service connection for a body rash as if it had been appealed. At this juncture, the Board observes that an issue may be considered to be in appellate status if VA has given an appellant reason to believe the issue is on appeal. See Percy V. Shinseki, 23 Vet. App. 37 (2009). In this regard, upon a review of the foregoing, in the Board's opinion, it is evident that the RO's processing of the Veteran's claims gave rise to a justifiable belief on his part that an appeal as to his claim for service connection for a body rash, in addition to the claim for service connection for jungle rot of the feet, had been perfected. Thus, after careful consideration, the Board has determined that both entitlement to service connection for a body rash and entitlement to service connection for a skin disability affecting the bilateral feet are in appellate status, and are before the Board, as reflected on the title page. As such, the August 2009 rating decision on appeal is considered to be a denial of the claim to reopen the Veteran's original claim for "skin fungus," originally denied in July 1985, on the basis that new and material evidence had not been submitted to reopen the claim with respect to either a body rash or a skin disability affecting the bilateral feet. The record before the Board consists of electronic records within the Veterans Benefits Management System. The issues of entitlement to service connection for a skin disability affecting the bilateral feet, and entitlement to a compensable initial rating for bilateral hearing loss, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A July 1985 rating decision denied the Veteran's claim of entitlement to service connection for a body rash and for a skin disability affecting the bilateral feet; the Veteran did not appeal the decision or submit any pertinent evidence within the appeal period. 2. Evidence received subsequent to the July 1985 decision includes evidence that is not cumulative or redundant of the evidence previously of record and that relates to unestablished facts necessary to substantiate the claims. 3. The Veteran's body rash, diagnosed as tinea versicolor, originated during service. CONCLUSIONS OF LAW 1. New and material evidence has been presented to reopen the claims of entitlement to service connection for a body rash and a skin disability affecting the bilateral feet. 38 U.S.C.A. § 5108 (West 2015); 38 C.F.R. § 3.156 (2017). 2. The criteria for service connection for a body rash, diagnosed as tinea versicolor, have been met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence Generally, a claim that has been denied in an unappealed RO or Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105 (c) (West 2015). 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 that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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 U.S.C.A. § 3.156 (b) (2017). New evidence is defined as existing evidence not previously submitted to agency decision makers. 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 U.S.C.A. § 3.156 (a) (2017). The U.S. 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). 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). In a July 1985 rating decision, the RO denied the Veteran's claim for service connection for "fungus dermatitis of chest, arms, and feet" on the basis that no skin condition was documented at the time of the Veteran's discharge from service. The Veteran did not appeal the decision or submit any pertinent evidence within the appeal period. In January 2009, the Veteran initiated a claim to reopen his previously denied claim. As discussed above, the Board has determined the January 2009 claim raised two issues: entitlement to service connection for a body rash, and entitlement to service connection for a skin disability affecting the bilateral feet. The evidence of record in July 1985 consisted of the Veteran's claim, a portion of his service treatment records (STRs), and a May 1985 VA examination report. The evidence received subsequent to the July 1985 decision includes September 2009 and July 2014 letters from the Veteran's private physician to the effect that his body rash originated during service, and lay statements by the Veteran, his wife, and his brother-in-law, to the effect that his current body rash and bilateral foot skin disability have been present since service. This evidence is not cumulative or redundant of the evidence that was before VA in July 1985, and it relates to unestablished facts necessary to substantiate the claims, particularly with regard to linking the Veteran's current conditions to service. Based on the foregoing, the Board finds that reopening of the Veteran's claims for service connection for a body rash and service connection for a skin disability affecting the bilateral feet is warranted. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110 (West 2015); 38 C.F.R. § 3.303 (2017). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d) (2017). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2015); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Background and Analysis The Veteran's STRs show in July 1973 he complained of a rash on his chest, arm, and back. In April 1975, he complained of a rash on his torso which he reported had its onset during his service in Okinawa. In December 1975, he was again treated for a rash, which was diagnosed as tinea versicolor. In a September 2009 letter, the Veteran's private dermatologist, Dr. L.C., noted she had treated the Veteran for a recalcitrant rash involving his upper and lower back, shoulders, chest, and flanks, and noted his report that this rash had been recurrent since his military service. She noted the Veteran had pink hypopigmented scaly oval macules on his trunk and shoulders, which was consistent with a diagnosis of tinea versicolor, caused by the fungal organism Pityrosporum ovale. The Veteran was afforded a VA examination in October 2011. The examiner provided a diagnosis of tinea versicolor, and noted the Veteran also had a diagnosis of type II diabetes mellitus. The examiner opined the Veteran's "body rash" was less likely than not related to his service, and instead was likely caused by his type II diabetes mellitus. In a February 2012 statement, the Veteran's brother-in-law, C.M.L., stated the Veteran had always had blotchy skin on his chest, neck, and back, which he noticed when the Veteran came to his swimming pool, and which the Veteran had always said was picked up during his service. C.M.L. stated the Veteran had had these skin problems the entire 34 years he had known him. In an April 2012 statement, the Veteran's spouse, V.J., asserted the Veteran had had his body rash ever since active duty, which would "welt up" and itch, crack, and bleed, off and on over the years. In July 2014, the Veteran's private dermatologist, Dr. L.C., submitted an additional letter. She noted the rash she treated the Veteran for, which involved his upper and lower back, shoulders, neck, chest, and flanks, had begun during military service and was initially diagnosed as a fungal infection. She stated that the rash waxed and waned and, when active, was both itchy and painful. She stated this rash was consistent with tinea versicolor and required both oral and topical therapy. She further stated that tinea versicolor was a skin condition that often began in hot, humid climates where Pityrosporum ovale was present, and that although the rash may have periods of inactivity, it generally recurred during the summer months, and so was considered a chronic condition requiring long-term treatment. Upon a careful review of the foregoing, the Board has determined a preponderance of the evidence weighs in favor of the Veteran's claim. In this regard, the Board first notes that while the October 2011 VA examiner attributed the Veteran's body rash to his type II diabetes mellitus, he failed entirely to address the Veteran's, his brother-in-law's, and his wife's contentions that his body rash had been present since service, and prior to his diabetes diagnosis. For these reasons, the Board finds the VA examination report is of limited probative value. On the other hand, the September 2009 and July 2014 letters referenced above were authored by a physician who is an expert in dermatology, and weigh in favor of the Veteran's claim. Accordingly, upon review, the Board has determined that granting of service connection for a body rash, diagnosed as tinea versicolor, is in order. ORDER New and material evidence having been submitted, reopening of the claims for service connection for a body rash and for a skin disability affecting the bilateral feet is granted. The January 2009 claim to reopen the claim for service connection for a body rash, diagnosed as tinea versicolor, is granted, and service connection for a body rash, diagnosed as tinea versicolor, is granted. REMAND Although further delay is regrettable, the Board finds that additional development is required before the Veteran's remaining claims are decided. Service connection for a skin disability affecting the bilateral feet The Veteran contends he has a skin disability affecting his bilateral feet, which he has claimed as "jungle rot." He contends this condition is related to training in the jungle in Okinawa during monsoon season, which caused his feet to always be wet. He has contended he has suffered from a bilateral foot condition which causes cracking, bleeding, and odor, since service. In March 2012 and April 2012 statements, the Veteran's brother-in-law and spouse, respectively, recalled his bilateral foot symptoms having persisted ever since service. In a May 1985 VA examination report, a VA examiner noted the Veteran's skin was essentially clear, aside from minor dermatitis on the skin of the toes of the left foot. The examiner provided a diagnosis of history of fungus dermatitis. Following initiation of the present claim, the Veteran was afforded an additional VA examination in October 2011. The examiner noted the Veteran had a rash, primarily between the toes, on both feet, and that he reported using powder on his feet twice a day. The examiner provided a diagnosis of tinea pedis (athlete's foot). At this juncture, the Board notes that VA must provide a medical examination or obtain a medical opinion 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 establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (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 on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2) (West 2015); 38 C.F.R. § 3.159(c)(4)(i) (2017). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. Unfortunately, although the October 2011 VA examiner provided a diagnosis of tinea pedis, he provided no opinion as to whether the condition originated during or was otherwise related to the Veteran's service. Upon a review of the record, no such opinion has been obtained by VA. Considering the Veteran's contentions, the Board finds a remand for an additional VA examination and opinion is warranted pursuant to McLendon. In addition, the Board notes that in its December 2013 remand, it instructed the RO to obtain all STRs relating to the Veteran's period of Army Reserve service between April 1977 and April 1990. Upon remand, it appears that the Veteran's official military personnel file (OMPF) for this period, but not his STRs, were obtained. As such, additional efforts to obtain the relevant STRs should be undertaken on remand. Compensable initial rating for bilateral hearing loss In the August 2009 rating decision on appeal, service connection for bilateral hearing loss was granted, and a noncompensable initial rating was assigned. The Veteran was most recently afforded VA audiological examinations in January 2014 and February 2015. He also submitted private audiology testing results dated in September 2014. Upon review, none of the audiology testing results of record warrant assignment of a compensable rating for the Veteran's bilateral hearing loss. See 38 C.F.R. § 4.85, Tables VI, VII (2017). However, subsequent to his most recent examinations, the Veteran has continued to assert that his hearing loss has worsened. In an August 2017 correspondence, the Veteran's representative again referenced the argument that the Veteran's bilateral hearing loss had worsened and was not accurately reflected by the most recent VA examination results. The Board notes that where the evidence indicates that a service-connected disability has worsened since the last VA examination, and that examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C.A. § 5103A (d) (West 2015); 38 C.F.R. § 3.159 (c)(4) (2017); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121; Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Due to the passage of almost three years since the Veteran's most recent examination, and his assertions that his disability has worsened, the Board finds a remand is warranted in order to obtain a contemporaneous VA examination. Accordingly, this case is REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, to specifically include the Veteran's STRs for his Army Reserve service between April 1977 and April 1990. In this regard, it should be noted the Veteran's OMPF for this period has been obtained, but his STRs, in their entirety, have not. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, afford the Veteran a VA examination to determine the nature and etiology of all skin disabilities affecting the bilateral feet that have been present at any time during the period of the claim. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Following the examination and a review of the relevant records and lay statements, the examiner should identify all skin disabilities affecting the Veteran's bilateral feet. The examiner should specifically explain whether the Veteran's skin disability affecting his bilateral feet is part of the tinea versicolor affecting other areas of his body, or is a different skin disability. Then, with regard to each identified skin disability affecting the bilateral feet, the examiner must state whether it is at least as likely as not (50 percent probability or greater) that the disability originated during or is otherwise etiologically related to the Veteran's service. In providing his or her opinion, the examiner must address the Veteran's assertion that his bilateral foot skin disability is related to in-service training in the jungle in Okinawa during monsoon season. The examiner must also address the competent lay statements by the Veteran, his wife, and his brother-in-law to the effect that the Veteran's skin disability affecting his bilateral feet has been present and/or recurrent since service. The examiner must provide a rationale for any proffered opinion. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Afford the Veteran a VA examination to determine the current severity of his service-connected bilateral hearing loss. 4. Undertake any other development determined to be warranted. 4. Then, readjudicate the issue on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017). Department of Veterans Affairs