Citation Nr: 1805245	
Decision Date: 01/26/18    Archive Date: 02/07/18

DOCKET NO.  14-20 670A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1. Whether new and material evidence has been received to reopen a claim of service connection for a skin disability.

2. Entitlement to service connection for a skin disability, to include telangiectasia macularis eruptiva perstans (TMEP).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

J. Sandler, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1988 to December 1992. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the North Little Rock, Arkansas Department of Veterans Affairs (VA) Regional Office (RO). 

In September 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is in the record. 

Although the RO reopened the Veteran's claim of service connection for a skin disability by deciding the issue on the merits, the question of whether new and material evidence has been received to reopen such claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has characterized the claim accordingly.

The issue of entitlement to service connection for a skin disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required.




FINDINGS OF FACT

1. A July 2004 rating decision denied service connection for a skin disability. The Veteran was informed of the decision and he did not appeal nor was new and material evidence received within a year of the decision. As such, the decision became final.

2. Evidence received since the July 2004 rating decision is relevant and probative to the issue at hand.


CONCLUSIONS OF LAW

1. The July 2004 rating decision, which denied service connection for a skin disability, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017).

2. The evidence regarding a skin disability received since the July 2004 rating decision is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran seeks to reopen his claim for service connection for a skin disability. Service connection was previously denied in a July 2004 rating decision, based on the finding that there was neither in-service incurrence nor a causal link (nexus) between the Veteran's current disability and his military service. The RO notified the Veteran of this decision and he did not appeal it. Consequently, that decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103.

Since the July 2004 rating decision, the Veteran submitted unofficial service treatment records (STRs) showing that he complained of skin problems at the time of his separation from service. The Veteran later explained during his September 2017 Board hearing that such records were his original in-service reports of skin symptoms, which he was forced to amend to reflect he had no complaints. [The Board notes that the addition of these records to the claim file does not fall under 38 C.F.R. § 3.156(c) because they are not "official."] The evidence, if accepted as credible, cures an evidentiary defect that existed at the time of the prior decision. See 38 C.F.R. § 3.156. Based upon the reason for the prior denial, the additional evidence is new and material and the claim is reopened. 


ORDER

The request to reopen the claim for service connection for a skin disability is granted.


REMAND

The Veteran underwent a VA examination in March 2010, wherein the examiner opined that the Veteran's TMEP more likely than not began during his military service. The examiner then submitted an addendum opinion in April 2010, wherein he noted that STRs submitted by the Veteran did not match STRs of record; specifically, there were official records that explicitly contradicted the STRs provided by the Veteran. Because the official STRs did not show evidence of a skin disability, the examiner amended his original opinion and stated that the Veteran's TMEP was not related to his service.

As discussed above, during his September 2017 Board hearing, the Veteran explained that the STRs he provided were the original forms that he completed during service. However, while filling out the forms, he was pressured into completing new forms that reflected no complaints. Thereafter, a medic returned his initial forms (which showed complaints of skin problems) and advised him to retain them. 

The March 2010 examiner's addendum opinion is inadequate because it does not consider the Veteran's consistent reports that his skin rashes began during service and have continued from that time. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The examiner also did not consider the Veteran's explanation for the existence of contradictory STRs. As a result, remand for a new VA examination is necessary.

Although the Veteran submitted letters from Dr. Garrett and Dr. M. Kyei, MD, these statements are inadequate as neither contains an opinion that the Veteran's TMEP is related to or caused by his military service. Specifically, Dr. Garrett's letter states only that there are records showing symptoms consistent with his diagnosis, and Dr. Kyei states that the Veteran's complaints of rash "per [the] patient started when he was in Saudi Arabia." Dr. Garret's letter simply states the existence of records without discussing them further, while Dr. Kyei's statement is merely a reporting of what the Veteran stated, not an opinion. Accordingly, neither contains an adequate nexus opinion. The Veteran is free to obtain an addendum opinion from either provider, if he so wishes. 

The Veteran testified that his VA doctor wrote a nexus opinion in his medical records in 2010. Various VA treatment records appear to be missing from the file, including records from 2010. As a result, such records should be obtained on remand.

June 2006 private treatment records indicate that the Veteran may be receiving Social Security Administration (SSA) disability benefits. The record does not reflect that records pertaining to his SSA claim have been sought by VA. Because SSA records are constructively of record, they must be sought on remand. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010).

Accordingly, the case is REMANDED for the following action:

1. The AOJ should obtain copies of VA treatment records for the Veteran's skin disability from October 2004 to September 2006, from December 2009 to February 2010, from July 2010 to February 2012, from July 2012 to April 2015, and from June 2017 to the present. The AOJ should ensure that the complete records of all VA evaluations and treatment the Veteran has received for his disability are associated with the record.

2. The AOJ should request directly from the SSA complete copies of any determination on a claim for disability benefits from that agency, together with the medical records that served as the basis for any such determination. All attempts to fulfill this development should be documented in the claim file. 

3. After the above development has been completed the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of his skin disability. The examiner should review the claim file (including this remand) and the examination report should state that a review of the file was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion that responds to the following:

Is it at least as likely as not (50% or greater probability) that the Veteran's TMEP was incurred in or related to his military service? The examiner must discuss the Veteran's consistent reports that his skin rashes began and have continued since service, and his explanation for the inconsistent STRs reflecting reports of skin problems. For the purposes of this opinion, the examiner should assume the Veteran's statements are credible.

A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the matter and may also result in a clarification being requested.)

If upon completion of the above action the claim remains denied, the case should be returned to the Board after compliance with appellate procedures. 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 appeal must be afforded expeditious treatment. The law requires that all matters that are remanded by the Board 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. §§ 5109B, 7112 (2012).



_________________________________________________
E. I. VELEZ
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (2012), only a decision of the Board 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 the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2017).

Department of Veterans Affairs