Citation Nr: 18149617 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 16-11 219A DATE: November 14, 2018 ORDER 1. New and material evidence has not been received to reopen the claim of entitlement to service connection for a lower back disability. 2. Entitlement of service connection for chloracne, to include as due to exposure to herbicides, is denied. FINDINGS OF FACT 1. By a September 2003 rating decision, the claim of entitlement to service connection for lower back disability was denied. The Veteran did not appeal this decision, nor did the Veteran submit new and material evidence within a year, therefore the decision became final. 2. Evidence received since the September 2003 rating decision, by itself, or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim, nor does it raise a reasonable possibility of substantiating the claim of entitlement to service connection for a lower back disability. 3. Chloracne has not been shown to have had its onset in service or within one year of service, nor is such disability shown to have been caused or aggravated by active military service to include exposure to herbicides, or as secondary to a service-connected disability. CONCLUSIONS OF LAW 1. The September 2003 rating decision denying service connection for a lower back disability, is final. 38 U.S.C. §7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for a lower back disability. 38 U.S.C. §5108 (2012); 38 C.F.R. §3.156 (2017). 3. The criteria for entitlement of service connection for chloracne, to include as due to exposure to herbicides, have not been met. 38 U.S.C. §§1100, 1112, 1113, 1110, 5107 (2012); 38 C.F.R. §3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1970 to December 1972. This case is before the Board of Veteran’s Appeals (Board) on appeal from a September 2003 and March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Neither the Veteran nor his representative have raised any specific issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F. 3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board…to search the record and address procedural arguments when the Veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist arguments). 1. New and Material Evidence to Reopen Lower Back Disability Claim A claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is 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). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In the September 2003 rating decision, the Veteran’s claim for service connection for herniated nucleus pulposis (HNP) L5-S1 was not reopened. The RO found that new and material evidence had not been received since a prior final denial of the claim in December 1987. The December 1987 claim was denied as it was determined there was no evidence of an in-service injury to the Veteran's lower back. At the time of that decision, the pertinent evidence of record included the service treatment records from 1970 to 1972, the report of a July 2003 VA examination, VA treatment records, and a statement made by the Veteran’s ex-wife. The RO found that the service treatment records were negative for evidence of a low back injury. The service treatment records did document an injury to the neck and upper back due to a motor vehicle accident in May 1972. The RO also found the Veteran had a current back injury of HNP of L5-S1 but there was no evidence linking disability to active duty. The Veteran was informed of the September 2003 rating decision and of his procedural and appellate rights via correspondence dated in September 2003. The Veteran did not appeal the September 2003 determination and it became final. In October 2013, the Veteran attempted to reopen the claim of entitlement to service connection for a low back disorder. The evidence received subsequent to the September 2003 rating decision consists of statements from the Veteran, a statement from the Veteran's spouse, the report of a VA cervical spine examination and post-service medical records. The statement from the Veteran's spouse indicates the Veteran has current back problems. This evidence is not new and material as this fact was of record at the time of the prior final denial. The medical records are not new and material. They document current treatment for back problems but do not link the back problems to active duty in any way. They do not demonstrate that the Veteran injured his low back during active duty. The Veteran submitted a statement indicating that he believed that his current back disorder is due to the in-service motor vehicle accident which injured his neck and shoulder. This evidence is not new and material. The fact that the Veteran had a motor vehicle accident during active duty was of record at the time of the prior final decision. The Veteran's allegation that he injured his back during the motor vehicle accident was also of record at the time of the prior final denial. The report of the VA examination includes a diagnosis of a cervical spine strain. It does not indicate in any way that the Veteran’s current low back disorder is linked to active duty. The evidence is not new and material. No new and material evidence has been submitted since the September 2003 rating decision pertaining to any unsubstantiated facts necessary to substantiate the claim of entitlement to service connection for a lower back disability. Accordingly, the claim of entitlement to service connection for a lower back disability is not reopened. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). 2. Entitlement to service connection of chloracne, to include as due to exposure to herbicides Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran 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’ – the so-called “nexus” requirement.” Holton v. Shineski, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). A disability which is proximate due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. §3.310. Secondary service connection is permitted based on aggravation. Compensation is payable for the degree of aggravation of a nonservice-connected disability caused by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed to an herbicide agent if a listed chronic disease manifests to a degree of 10 percent disabling or more, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a). The presumption is rebuttable. 38 C.F.R. § 3.307(d). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations, if the conditions of service involved duty or visitation in the Republic of Vietnam. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Certain diseases associated with herbicide exposure in service are presumed to be service connected if the disease is manifested to a compensable degree within a specified time period. 38 C.F.R. §§3.307, 3.309. If a Veteran was exposed to an herbicide agent, during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 U.S.C.§1116; 38 C.F.R. §3.307 (a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. §1113, 38 C.F.R. §3.307 (d) are also satisfied. Such diseases include chloracne and porphyria cutanea tarda. 38 C.F.R. §3.309(e). Further, pursuant to 38 C.F.R. §3.309 (e), early-onset peripheral neuropathy manifested to a degree of 10 percent or more within one year after the last date on which the Veteran was exposed to an herbicide agent during active military service shall be service connected. In making all determinations, the Board must fully consider the lay assertions of record. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran submitted a claim for VA compensation benefits for chloracne in September 2013. He argues that he developed chloracne after service and that it was directly due to his exposure to herbicides in service. After a review of the claims file, the Board finds that there is no competent evidence that the Veteran was exposed to herbicides during active duty nor is there competent evidence of a the existence of chloracne, therefore his service connection claim must be denied. The Veteran’s DD214 does not show that he served in Vietnam. He did not receive any decorations or awards indicative of service in South East Asia. He had one year and six months of overseas service but this was in Germany. In a letter dated in February 2014, the VA requested from the Veteran to submit evidence that he was exposed to herbicides. He did not respond to this request. He has not presented any evidence regarding his alleged exposure to herbicides other than via submission of the claim. The Board finds the Veteran was not exposed to herbicides during active duty. Presumptive service connection based on exposure to herbicides is not warranted. 38 C.F.R. §§3.307 (a)(6), 3.309 (e). Service connection is not warranted for chloracne on a direct basis. There is no competent evidence of record diagnosing the presence of the disorder (or acneform disorder consistent with chloracne) at any time to include during active duty, within one year of discharge and up until the present time. The only evidence of record which indicates the Veteran has chloracne at any time is the Veteran's own allegations. The Veteran, as a lay person, is not competent to diagnose chloracne as this is a complex medical determination which requires specialized knowledge. The Board notes the Veteran is competent to report on symptoms he experiences with his senses but he did not report any symptoms which he found were due to chloracne. Other than submission of the claim, the Veteran has not provided any argument or evidence regarding the existence and etiology of chloracne. A current disability is required for the grant of service connection. Service connection for chloracne is denied. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Ronquillo, Law Clerk