Citation Nr: 1802307 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 15-24 379 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of service connection for a skin disorder to the right hand. 2. Entitlement to service connection for a skin disorder to the right hand, to include erysipelas. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and the Veteran's Wife ATTORNEY FOR THE BOARD A. Borman, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1945 to July 1946. This matter comes before the Board of Veteran's Appeals (Board) on appeal of September 2012 and October 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The Veteran testified before the undersigned in October 2017. A hearing transcript is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Board denied the Veteran's claim for service connection for a right hand disorder in May 2012, and he did not appeal to the U.S. Court of Appeals for Veterans Claims ("the Court") from that final denial. 2. Evidence received since the last final denial includes information that was not previously considered and which relates to an unestablished fact necessary to substantiate the claim, the absence of which was a basis of the previous denial. 3. The Veteran's right hand disorder worsened beyond its natural course as a result of military service. CONCLUSIONS OF LAW 1. The May 2012 Board decision that denied the Veteran's claim for entitlement to service connection for a right hand disorder is final. 38 U.S.C. § 7103 (2012); 38 C.F.R. § 20.1100, 20.1105 (2017). 2. As the evidence received subsequent to the May 2012 Board decision is new and material, the requirements to reopen the claim for entitlement to service connection for a right hand disorder have been met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.102, 3.156 (2017). 3. The criteria for establishing entitlement to service connection for a right hand disorder, to include erysipelas, have been met. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). The full award of benefits sought on appeal is being granted at this time. Consequently, any further discussion respecting the VCAA is not necessary. The Board notes that the Veteran's treatment records prior to April 1961 were determined to be unavailable in January 2010. Additionally, his treatment records from 1968 to 1997 were also determined to be unavailable in April 2012. In such cases there is a heightened obligation to assist the appellant in the development of the case, to explain findings and conclusions, and to consider carefully the benefit of the doubt rule in cases, such as in this situation, in which records are presumed to have been or were destroyed while the file was in the possession of the government. See Washington v. Nicholson, 19 Vet. App. 362, 369- 70 (2005); see also Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). However, the legal standard for proving a claim for service connection is not lowered. Rather, it increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). New and Material Evidence In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulation, "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. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999); but see 38 U.S.C. § 5103A (eliminates the concept of a well-grounded claim). In this case, the Veteran is asserting entitlement to service connection for a right hand disorder. The claim was previously denied by the Board in a May 2012 decision. The claim was denied, in part, because there was no clinical evidence of record which reflected that the Veteran had a current hand disability that was related to active service. The Veteran did not appeal that decision to the Court; thus, the Board decision became final. See 38 U.S.C. §§ 7103, 7104 and 38 C.F.R. §§ 20.1100 , 20.1104. After a review of the evidence submitted since the Board decision became final, the Board determines that the claim should be reopened. Specifically, among other new evidence in the record, the evidence includes a June 2013 VA examination and medical opinion analyzing the nexus between the Veteran's various hand conditions with his military service. Not only is this evidence "new," in that it was not of record prior to the last final denial of the claim, it is also "material," as it relates to an unestablished fact necessary to support the claim. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Therefore, as evidence that is both "new" and "material" has been submitted, the claims are reopened. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, the evidence must 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, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of examination, acceptance, enrollment or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment was not aggravated by such service. 38 C.F.R. § 3.304 (2017). Initially, the Board notes that the Veteran has been diagnosed with several disorders of his right hand including calcium pyrophosphate crystal deposition disease (CPPD), lichen planus, chronic dermatitis, and erysipelas. The Veteran's original claim was for service connection of erysipelas due to the condition existing prior to service and him suffering from aggravation as a result of service. The Board finds that service connection is warranted for the Veteran's right hand disability, to include erysipelas. The Veteran asserts that he was diagnosed with erysipelas prior to service. Specifically, he states that he was actually prevented by the military from entering into service until his erysipelas was controlled. Nevertheless, the Veteran's entrance examination indicates no skin problems and therefore, the Veteran is entitled to the presumption of soundness. During an August 2007 hearing at his local regional office, the Veteran recalled not having a significant problem with his hand during service. However, his hand still hurt. Within approximately a year of discharge, he had to be hospitalized for 5 weeks at the Sioux Falls VA Medical Center due to his right hand disorder. The records documenting the visit have been found to be unavailable. Nevertheless, during a November 2010 hearing, the Veteran remembered staying at the hospital with a room number in the 400s. His wife confirmed his recollection of a lengthy hospitalization due to his hand. The Veteran continued to complain of problems related to a right hand disorder since his discharge. A September 1968 entry by a medical professional indicated that the Veteran reported a history of hand problems since 1945 along with a previous diagnosis of erysipelas. In an October 2012 medical visit, a medical provider indicated a diagnosis of erysipelas. Similarly, in April 2016, a medical professional noted a history of erysipelas when treating erythematous of the right hand. Based on the consistent recollections of the Veteran and his wife, the credible report of symptoms representative of a right hand disorder since service, and acknowledging the Board's duty to consider carefully the benefit of the doubt rule as a result of the loss of several years' worth of records, the Board finds that service connection is warranted for a right hand disorder, to include erysipelas. ORDER New and material evidence having been submitted, the application to reopen a previously denied claim for entitlement to service connection for a right hand disorder is granted, and the claim is reopened. Service connection for a right hand disorder, to include erysipelas, is granted. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs