Citation Nr: 18142080 Decision Date: 10/12/18 Archive Date: 10/12/18 DOCKET NO. 16-18 099 DATE: October 12, 2018 ORDER A reopening of the claim for entitlement to service connection for skin disability, to include chloracne, is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for heart disability, to include ischemic heart disease, is remanded. Entitlement to service connection for skin disability, to include chloracne, is remanded. Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder is remanded. FINDINGS OF FACT 1. In an unappealed October 2009 rating decision, service connection for skin rash was denied. 2. New evidence received since the October 2009 rating decision relates to an unsubstantiated fact and raises a reasonable possibility of substantiating the claim of service connection for skin disability, to include chloracne. CONCLUSIONS OF LAW 1. The October 2009 Regional Office (RO) rating decision denying service connection for skin rash is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103. 2. New and material evidence has been received since the RO’s October 2009 rating decision, and the claim of service connection for skin disability, to include chloracne, is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1968 to December 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision. 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for skin disability The claim for entitlement to service connection for skin rash was initially addressed in an October 2009 rating decision. The RO found that the evidence of record did not demonstrate a nexus between the Veteran’s skin rash and his service. The RO denied the Veteran’s skin rash claim in its October 2009 rating decision. The Veteran did not appeal the denial of the claim and the October 2009 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C. § 7104(b); King v. Shinseki, 23 Vet. App. 464, 468 (2010); see DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006). The finality of a previously disallowed claim can be overcome by the submission of new and material evidence, however. See 38 U.S.C. § 5108. 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). The Court has held that the phrase “raises a reasonable possibility of establishing the claim” must be viewed as enabling rather than precluding reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether evidence is new and material for purposes of deciding whether a claim should be reopened the evidence is presumed to be credible. Savage v. Gober, 10 Vet. App. 488, 493–94 (1997); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Only in cases in which the newly submitted evidence is “inherently false or untrue” does the presumption of credibility not apply. Duran v. Brown, 7 Vet. App. 216, 220 (1994). Since the October 2009 rating decision, the Veteran has submitted a statement that, when viewed in the light of enabling reopening, raises a reasonable possibility of establishing a claim. In an April 2016 substantive appeal, the Veteran reported that he has “constantly had skin rash since Vietnam.” This evidence is new because it was not previously considered. It is material because it relates to the previously unestablished element of the Veteran’s claim: a link to service. Thus, new and material evidence has been received and reopening the claim for entitlement to service connection for skin disability, to include chloracne, is granted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Board cannot make a fully-informed decision on the issue of hearing loss because no VA examiner has addressed the threshold changes in the Veteran’s hearing from the March 1968 pre-induction examination to the December 1969 separation examination. Thus, an addendum opinion is required. 2. Entitlement to service connection for tinnitus is remanded. A July 2012 VA examination found it at least as likely as not that the Veteran’s tinnitus was a symptom associated with hearing loss. Because the question of service connection for bilateral hearing loss could therefore affect a determination of service connection for tinnitus, the Board finds the two are intertwined. The issue of service connection for tinnitus is accordingly remanded in conjunction with the remand for bilateral hearing loss. 3. Entitlement to service connection for heart disability, to include ischemic heart disease, is remanded. The Board cannot make a fully-informed decision on the issue of service connection for heart disability because no VA examiner has opined whether the Veteran has non-ischemic heart disease. A February 2012 private chiropractor note reported symptoms of chest discomfort, mild dyspnea, and random vertigo, which the private chiropractor attributed to a “mildly symptomatic” heart condition. Remand is therefore necessary to determine whether the Veteran has non-ischemic heart disease. 4. Entitlement to service connection for skin disability, to include chloracne, is remanded. The Board cannot make a fully-informed decision on the issue of service connection for skin disability because no VA examiner has diagnosed the Veteran’s skin disability and opined whether it is due to service, to include presumed in-service herbicide-agent exposure. Remand is accordingly necessary. 5. Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder is remanded. The Veteran’s representative in a May 2018 Appellant’s Brief suggests that the Veteran’s posttraumatic stress disorder (PTSD) has worsened since the July 2012 VA examination. Although the Board notes that there was a later VA examination in October 2015, in an abundance of caution the Board will remand the matter to determine the current severity of the Veteran’s PTSD. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s bilateral hearing loss is at least as likely as not related to service. The opinion provider should specifically address the threshold changes in the Veteran’s hearing from the March 1968 pre-induction examination to the December 1969 separation examination. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any heart disabilities, including non-ischemic heart disease. The examiner must opine whether it is at least as likely as not that any currently manifest heart disability is related to an in-service injury, event, or disease, including in-service herbicide-agent exposure. 3. Schedule the Veteran for an examination by a dermatologist to determine the nature and etiology of any skin disability. The examiner must opine whether it is at least as likely as not that any currently manifest skin disability is related to an in-service injury, event, or disease, including in-service herbicide-agent exposure. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his PTSD alone. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W. Ripplinger, Associate Counsel