Citation Nr: 18149031 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-14 057 DATE: November 8, 2018 ORDER New and material evidence having been received, the claim of service connection for a skin disorder, to include a growth on top of his head, is reopened and to that extent the claim is granted. REMANDED Entitlement to service connection for a skin disorder, to include a growth on top of his head, is remanded. FINDINGS OF FACT 1. The Agency of Original Jurisdiction (AOJ) last denied service connection for a skin condition in an unappealed March 2009 rating decision. 2. Evidence received since the March 2009 rating decision relates to unestablished facts necessary to substantiate the claim of service connection for a skin disorder, to include a growth on top of his head. CONCLUSIONS OF LAW 1. The March 2009 rating decision that denied service connection for a skin condition is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The criteria for reopening the claim of service connection for a skin disorder, to include a growth on top of his head, are met. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from September 1968 to September 1970, with service in the Republic of Vietnam from February 1969 to February 1970. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2016 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). The Board notes that the AOJ initially denied service connection for a skin condition and a separate claim for a growth on top of his head. Based on the Veteran’s statements and assertions on appeal, the Board has construed this as a singular claim for a skin disorder, and has recharacterized the issue as above. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Historically, the Veteran initially filed service connection for a skin condition in April 2005; the AOJ denied service connection for a skin condition in an August 2005 rating decision and the Veteran was notified of that decision in a September 2005 letter. No additional evidence related to the skin claim, nor a notice of disagreement was received within one year of that September 2005 notification letter. The Veteran filed to reopen his claim of service connection for skin disorder in March 2008. In May 2008, VA obtained service records which were not previously before the AOJ at the time of the August 2005 rating decision. The AOJ conducted a de novo review of the record under 38 C.F.R. § 3.156(c) respecting the skin condition claim in a March 2009 rating decision; service connection for a skin condition was denied at that time because there was no current disability. The Veteran was notified of that decision in a March 2009 notification letter. The Veteran did not submit any additional evidence related to his skin condition claim, nor a notice of disagreement with the March 2009 rating decision within one year of the March 209 notification letter. Accordingly, as no notice of disagreement or new and material evidence respecting the skin claim were received within one year of the March 2009 notification letter, the March 2009 rating decision is final. See 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.1103; Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). New and material evidence is therefore required to reopen the claim of service connection for a skin disorder. See 38 U.S.C. § 5108; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. As noted above, the Veteran’s skin claim was previously denied for the lack of a current disability. A review of the claims file demonstrates several diagnoses of skin disorders, including tinea pedis and tinea cruris, as well as lesions and dermal cysts of his head. Additionally, in conjunction with the Veteran’s claim to reopen service connection, the Veteran underwent a VA skin examination, during which the examiner diagnosed him with intertrigo. Based on the foregoing evidence, the Board must find that the evidence received since the March 2009 rating decision raises a reasonable possibility of substantiating the skin claim; therefore, the skin claim is reopened at this time. See 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (medical evidence which indicates that a medical opinion is warranted is sufficient to reopen a claim). REASONS FOR REMAND The Veteran’s VA treatment records document treatment for tinea pedis, tinea cruris, tinea corporis, and skin lesions/dermal cysts of the head. Additionally, he underwent a VA examination of his skin disorder in March 2013, at which time he was diagnosed with intertrigo. During the examination, the Veteran indicated that he had an itchy groin during service in the Republic of Vietnam. The examiner noted that the Veteran was treated for pseudofolliculitis barbae and acne during service. After examination, the examiner opined that the Veteran’s skin disorder was not at least as likely as not related to his skin disorders in service, as intertrigo was not caused by pseudofolliculitis barbae and acne. The Board reflects that no rationale for that finding and conclusion was provided. Moreover, the examiner did not address the Veteran’s other skin disorders noted in his VA treatment records in his opinion. Finally, the Board reflects that the Veteran had generally asserted that his skin disorders are related to his military service, to include in the Republic of Vietnam. The examiner did not address whether the Veteran’s current skin disorders were related to any environmental conditions, namely the heat and humidity, during his period of service, nor did the examiner discuss the Veteran’s presumed herbicide exposure as a result of his service in the Republic of Vietnam. Consequently, the Board finds that the March 2013 VA examiner’s opinion is not adequate, and a remand is necessary in order to obtain another VA examination and medical opinion that adequately addresses the facts and circumstances of this case. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). On remand, the Board also finds that any outstanding VA treatment records should also be obtained. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran “sufficiently identifies” other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain any and all VA treatment records not already associated with the claims file from the Chicago VA Medical Center, or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file. 2. Ensure that the Veteran is scheduled for a VA examination with an appropriate examiner that has not previously participated in this case in order to determine whether the Veteran’s skin disorders are related to his military service. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Following examination of the Veteran and review of the claims file, the examiner should state any and all skin disorders found during the appeal period, to include intertrigo, tinea pedis, tinea cruris, tinea corporis, and/or skin lesions/dermal cysts of the head. Then, the examiner should opine whether any skin disorders found, to include intertrigo, tinea pedis, tinea cruris, tinea corporis, and/or skin lesions/dermal cysts of the head, at least as likely as not (50 percent or greater probability) began in service or is otherwise the result of military service, to include any environmental conditions, such as heat and humidity, and/or herbicide exposure due to his service in the Republic of Vietnam. The examiner must specifically address the Veteran’s noted treatment for pseudofolliculitis barbae and acne during military service. The examiner is to take as conclusive fact that the Veteran is presumed to have been exposed to herbicide agents as a result of his military service. The examiner is also reminded that merely stating that a skin disorder is not on the list of diseases presumed exposed to herbicides is not adequate basis for a negative opinion. In addressing the above, the examiner should consider the Veteran’s lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. The examiner should also address any other pertinent All findings should be reported in detail and all opinions must be accompanied by a clear rationale. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.Seehusen, Associate Counsel