Citation Nr: 18156068 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-19 731 DATE: December 6, 2018 ORDER New and material evidence having not been received, the appeal to reopen service connection for hepatitis C is denied. New and material evidence having been received, the appeal to reopen service connection for a skin disorder is granted. Service connection for a skin disorder, to include pruritus and lichen planus, is denied. Service connection for depression as secondary to the service-connected posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. An October 2010 rating decision denied reopening of service connection for hepatitis C on the basis that the evidence did not show that hepatitis C was incurred in or otherwise caused by service, to include herbicide exposure. 2. The Veteran did not timely file a notice of disagreement (NOD) following the October 2010 rating decision, and new and material evidence was not received during the one-year appeal period following that decision. 3. Evidence received since the October 2010 rating decision is either duplicative or cumulative of evidence previously considered or does not relate to a previously unestablished fact of in service incurrence or a nexus between the current hepatitis C and active service that is necessary to substantiate the claim for service connection for hepatitis C. 4. An October 2010 rating decision denied reopening of service connection for fungus (also claimed as a skin condition) on the basis that the evidence did not show a current fungal/skin disorder that was incurred in or otherwise caused by service, to include herbicide exposure. 5. The Veteran did not timely file a notice of disagreement (NOD) following the October 2010 rating decision, and new and material evidence was not received during the one-year appeal period following that decision. 6. Evidence received since the October 2010 rating decision relates to an unestablished fact of a current disability of pruritus that could reasonably substantiate a claim for service connection for a skin disorder. 7. The Veteran has a currently diagnosed skin disorder of pruritus and lichen planus that had post-service onset and is not causally or etiologically related to service. 8. The current depression is causally related to the service-connected PTSD. CONCLUSIONS OF LAW 1. The October 2010 rating decision denying reopening of service connection for hepatitis C became final; new and material evidence has not been received to reopen service connection for hepatitis C. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. The October 2010 rating decision denying service connection for fungus (also claimed as a skin condition) became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 3. Evidence received since the October 2010 rating decision is new and material to reopen service connection for a skin disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for service connection for a skin disorder, to include pruritus and lichen planus, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for depression as secondary to the service-connected PTSD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310, 4.125, 4.130. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant, served on active duty from February 1971 to February 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision from the Regional Office (RO), which, in pertinent part, denied service connection for depression and denied reopening of service connection for a skin disorder and hepatitis C. The Board finds that the duties to notify and assist in this case have been fulfilled. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. Reopening Service Connection Criteria Generally, a claim that has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as 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 new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id at 118. Regardless of the RO’s determination as to whether new and material evidence had been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened. Once the case is reopened, the presumption as to the credibility no longer applies. Id at 513. 1. Whether to Reopen Service Connection for Hepatitis C In this case, an October 2010 rating decision denied reopening of service connection for hepatitis C on the grounds that the evidence did not show that hepatitis c was incurred in or otherwise caused by active service, to include herbicide agent exposure. In October 2010, the Veteran was notified of the rating decision and provided notice of procedural and appellate rights. The Veteran did not submit a timely NOD following the October 2010 rating decision, and no new and material evidence was received during the one-year appeal period following the decision. As such, the October 2010 rating decision became final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b), 20.302, 20.1103. After reviewing the evidence received since the October 2010 rating decision, the Board finds that the evidence does not qualify as new and material evidence, so is not sufficient to reopen service connection for hepatitis C. Recent lay statements from the Veteran reflect the assertion of treatment for hepatitis C and its relationship to service. See June 2010 NOD, May 2016 VA Form 9. These statements are not new evidence because the substance of such statements was previously asserted and considered during the prior appeal period, and considered when service connection was denied in the final October 2010 rating decision. The service treatment records, which were previously considered, are silent as to symptoms, diagnosis, treatment, or risk factors for hepatitis C. The previously considered private treatment records reflect that the Veteran has a history of hepatitis C with end stage liver disease. See June 2003 private treatment record. Newly received VA treatment records reflect that hepatitis C remains a current disability, although the Veteran is not currently undergoing treatment for this condition. See August 2012, September 2014, February 2016 VA treatment records. Such evidence is not material as it only tends to show that a current diagnosis of hepatitis C remains in effect, and does not relate to an unestablished fact of an in-service incurrence or medical nexus between the current hepatitis C and active service. For these reasons, the Board finds that the additional evidence received since the October 2010 rating decision is not new and material evidence; therefore, service connection for the previously denied hepatitis C cannot be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. Whether to Reopen Service Connection for a Skin Disorder In this case, an October 2010 rating decision denied reopening of service connection for fungus (also claimed as a skin condition) on the grounds that the evidence did not show that a current skin/fungal disorder was incurred in or otherwise caused by active service, to include herbicide agent exposure. In October 2010, the Veteran was notified of the rating decision and provided notice of procedural and appellate rights. The Veteran did not submit a timely NOD following the October 2010 rating decision, and no new and material evidence was received during the one-year appeal period following the decision. As such, the October 2010 rating decision became final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b), 20.302, 20.1103. Since the October 2010 rating decision denying service connection for a skin disorder, VA has received additional evidence of a current diagnosis of a skin disorder, to include pruritus and lichen planus. See March 2011, April 2012 VA treatment records. Presuming the credibility of such new evidence for the purposes of reopening the claim, such evidence relates to unestablished fact of a current skin disability, so could reasonably substantiate the issue of service connection for a skin disorder. For this reason, the Board finds that the additional evidence is new and material to reopen service connection for a skin disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Although the claim to reopen service connection for a skin disorder based on new and material evidence and the claim of service connection for a skin disorder are distinct questions, the Board has jurisdiction to decide service connection for a skin disorder on the merits in the current appeal because both questions relate to a single matter, that is, a claim of entitlement to VA benefits for a skin disorder under 38 U.S.C. § 1110. See Bernard v. Brown, 4 Vet. App. 384, 390-92 (1993) (holding the fact that a RO decision found that the veteran had not presented new and material evidence to reopen the claim does not thereby limit the scope of the Board’s review of “the matter” on appeal). The Veteran is not prejudiced by the Board addressing the merits of the claim for service connection for a skin disorder in the first instance in the current appeal because the Veteran has been given adequate notice of the need to submit evidence or argument on that question, an opportunity to submit such evidence and argument, and the opportunity to address that question at a hearing, which the Veteran declined via VA Form 9. See Bernard, at 393-94; see also VAOPGCPREC 16-92. The Veteran has not been misled into presenting evidence only on the question of reopening service connection; rather, the Veteran is aware of the underlying requirements for service connection, as the Veteran has been apprised of the applicable laws and regulations regarding service connection in the May 2009, February 2010, and January 2012 notice letters, the May 2012 and October 2013 rating decisions, and the April 2016 statement of the case (SOC). The Veteran was notified of evidence to submit to decide the claim on the merits, including medical records reflecting findings, diagnosis, and treatment of a current disorder; statements from doctors or other people who have witnessed how the claimed disability affects him; and medical or scientific evidence to show how the current skin disorder is related to active military service, to include herbicide exposure. See May 2009, February 2010, and January 2012 notice letters. The Veteran has been represented throughout the course of the appeal and has had multiple opportunities to present evidence and contentions addressing the merits of service connection for a skin disorder. Moreover, the Veteran has continued to assert that he has been undergoing treatment for fungal/skin disorder and that the current skin disorder is directly related to service. See June 2012 NOD, May 2016 VA Form 9. The Veteran’s representative was also afforded an opportunity to submit additional evidence or argument of the merits of service connection, but no additional argument or evidence was received. See May 2016 Correspondence, May 2016 VA Memo. Based on the foregoing, the Board finds that there is no prejudice to the Veteran in the Board deciding service connection for a skin disorder on the merits. Service Connection Legal Criteria 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; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (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 in or aggravated by service. Additionally, service connection may also be established on a secondary basis for disability which is proximately due to, or the result of, a service connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis essentially requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service connected disability. 38 C.F.R. § 3.310(c). The Veteran is currently diagnosed with pruritus, lichen planus, and depression, which are not listed as a “chronic disease” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b), 3.307, and 3.309 do not apply as to the issues of service connection for a skin disorder or depression. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam (Vietnam), including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307, 3.309(e), 3.313 (2017). This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113 (2012); 38 C.F.R. §§ 3.307, 3.309. In order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents, unless there is affirmative evidence to establish that a veteran was not exposed to any such agent during that service, the veteran must show the following: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; (2) that he suffered from a disease associated with exposure to certain herbicide agents enumerated under 38 C.F.R. § 3.309(e); and (3) that the disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). If a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for several medical conditions. 38 C.F.R. § 3.309 (e). The following diseases are deemed associated with herbicide exposure under VA law: AL amyloidosis, Chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin’s disease, Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), Multiple myeloma, Non-Hodgkin’s lymphoma, Parkinson’s disease, early onset peripheral neuropathy, Porphyria cutanea tarda, Prostate cancer, Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). Accordingly, pruritus, lichen planus, and depression are not diseases for which presumptive service connection based on exposure to herbicides agents may be granted. Id. Notwithstanding the foregoing presumption provisions for herbicide exposure, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff’g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). 3. Service Connection for a Skin Disorder The Veteran generally contends that service connection is warranted for a skin disorder. Specifically, the Veteran contends that he developed a skin disorder, which manifested as a rash on the legs and feet in approximately 1992, which he contends is due to Agent Orange exposure during service. See February 1994, December 2009 Statements in Support of the Claim; June 2012 NOD. First, the Board finds that the Veteran has a current diagnosis of pruritus (itchy skin) and lichen planus. See March 2011, April 2012, April 2016 VA treatment records. After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence is against a finding that a current skin disorder was incurred in service. The Veteran has asserted that the skin disorder is related to herbicide exposure while in Vietnam. The DD Form 214 reflects that the Veteran served in the Republic of Vietnam; however, as pruritus and lichen planus are not diseases VA has recognized as associated with exposure to herbicide agents, the Veteran cannot benefit from the herbicide exposure nexus presumption, regardless of whether he was exposed to herbicides in service. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The weight of the evidence is also against a finding that the skin disorder is etiologically related to service. Service treatment records do not reflect any complaints, diagnosis of, or treatment for a skin disorder during service. The January 1973 service separation examination reflects that the Veteran reported being in good health, did not report any abnormal skin disorders, and clinical evaluation of the skin was normal. Moreover, on the original December 1993 Claim, the Veteran asserted that the skin disorder did not manifest until years after service separation. Accordingly, the Board finds that the weight of lay and medical evidence of record demonstrates that there was no in-service skin injury, disease, or even symptoms of a skin disorder in service. The first evidence of record of a skin disorder is from private treatment records from July 1993 through December 1993, 20 years after service separation. These records reflect that the Veteran was treated for a history of fungal rash on the legs, feet, and hands. At the time, diagnosis was tinea pedis/corporis, but no medical opinion as to possible etiology was provided. The Veteran first underwent a VA general medical examination that included an evaluation of the skin in April 1994. At the April 1994 examination, the Veteran reported a history of skin condition with blackish spots for more than one year. The Veteran denied knowing the origin of the disorder, but had been applying topical cream to alleviate burning sensations. The examiner reported that the lesions were raised and scattered on the lower extremities with a few of the left arm that were suggestive of blackish scar tissue. The examiner noted a total of 4-5 spots on the left arm and 15-20 on each leg. The examiner provided a diagnosis of skin lesions, possibly lichen planus or other skin condition, but did not opine on the nature or etiology. A review of the records includes VA treatment records from June 2006 that reflect treatment for malignant neoplasms on the left chest, but this incidence was related to ruling out cancer and not to claims of itchy legs and feet. The Veteran was provided with another VA examination in September 2009, in which the Veteran reported that he felt “agent orange had messed up” both of his legs causing them to itch. After examination, the examiner reported that there were no signs of a skin disease present. Additional treatment records reveal scattered keratosis on the skin with an impression of pruritus in March 2011. In April 2012, hyperpigmented, flat-topped, slightly scaling papules and plaques were noted on examination of the skin. Diagnosis was lichen planus for which fluocinonide cream was prescribed; however, the etiology if the lesions was not assessed. VA treatment records from June 2013 continue to show scattered keratosis on examination, but the Veteran denied any new skin rashes or lesions. To the extent that the Veteran asserts that the skin disorder is directly related to herbicide (Agent Orange) exposure during service, the Veteran, in this case, is not competent to provide such opinion. Under the facts of this case, that include no symptoms of a skin disorder in service or for several years after service, the etiology of the current skin disorder, to include pruritus and lichen planus, especially as claimed as related to in-service herbicide exposure, is a complex medical etiological question involving internal and unseen system processes unobservable by the Veteran that requires knowledge of the complex etiology of a relationship to herbicide exposure; therefore, the Veteran is not competent to provide evidence of an etiological nexus between in-service herbicide and the current skin disorder. Based on foregoing, the weight of the competent and credible evidence demonstrates no relationship between the Veteran’s skin disorder and active duty service, including herbicide exposure during service. As the record does not contain any competent opinion supporting a nexus between the current skin disorder, to include pruritus and lichen planus and service, the Board finds that the weight of the lay and medical evidence of record shows the current disorder is not etiologically related to service. Because the preponderance of the evidence is against the claim, the claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Service Connection for Depression The Veteran contends that service connection for depression is warranted as due to the service-connected PTSD. See June 2011 Statement; September 2012 Statement in Support of Claim; May 2016 Form 9. Initially, the Board finds that the Veteran has a current diagnosis of depression as reflected in the November 2010 and June 2015 VA treatment records. After review of all the evidence, both medical and lay, the Board finds that the evidence is in equipoise on the question of whether depression is causally related to the service-connected PTSD. Recent VA treatment records reflect diagnosis of depression and depression/PTSD. The Veteran has been prescribed Sertraline for treatment of depression and mood. See June 2015, February 2016 VA treatment records. The February 2012 VA examination report also reflects diagnosis of PTSD with associated depression, indicative of a relationship between the current depression and PTSD. Resolving reasonable doubt in favor of the Veteran, the Board finds that the depressive disorder is related to the service-connected PTSD. Under the rating schedule, all psychiatric disabilities, other than eating disorders, are rated together under the General Rating Formula for Mental Disorders based on the level of social and occupational impairment detailed at 38 C.F.R. § 4.130. As such, the effect of this Board decision is that the separate grant of service connection for depression does not result in a separate disability rating for depression apart from the already service-connected PTSD. All the Veteran’s psychiatric impairment due to the now service-connected depression will be rated together with the impairment due to the already service-connected PTSD. A single disability rating will be provided for all social and occupational impairment, whether due to symptoms of PTSD or depressive disorder. See also 38 C.F.R. § 4.14 (providing that rating such manifestations of a disability under multiple diagnoses (i.e., pyramiding) is to be avoided). See VAOGCPREC 23-97; see also Esteban v. Brown, 6 Vet. App. 259 (1994) (holding that a separate rating may be granted for a “distinct and separate” disability “when none of the symptomatology... is duplicative... or overlapping.”). That is, a claimant may not be compensated twice for the same symptomatology as “such a result would over compensate the claimant for the actual impairment of his earning capacity.” Brady v. Brown, 4 Vet. App. 203, 206 (1993). Based on the above, and resolving reasonable doubt in favor of the Veteran, the Board finds that the depressive disorder is related to the service-connected PTSD; thus, the criteria for service connection for the depressive disorder secondary to the service-connected PTSD have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As service connection is being granted on a secondary basis, all other theories of service connection, including direct and presumptive service connection, have been rendered moot. 38 U.S.C. § 7104. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Moore, Associate Counsel