Citation Nr: 18156804 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-56 002 DATE: December 11, 2018 ISSUES 1. Whether new material evidence has been received in order to reopen the claim for entitlement to service connection for a skin condition, to include as a result of exposure to an herbicide agent; and if so, whether the claim should be granted. 2. Entitlement to service connection for a hearing loss disability. 3. Entitlement to service connection for tinnitus. 4. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). ORDER The Board having determined that new material evidence has been presented, the claim for service connection for a skin condition, to include as a result of exposure to an herbicide agent, is reopened, and to that extent only, the claim is granted. REMANDED Entitlement to service connection for a hearing loss disability is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a skin condition, to include as a result of exposure to an herbicide agent, is remanded. Entitlement to a rating in excess of 50 percent for PTSD is remanded. FINDINGS OF FACT 1. Service connection for a skin condition (rosacea) was denied in an October 2008 rating decision that was not appealed. 2. Evidence received since the October 2008 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim for service connection for a skin condition. CONCLUSION OF LAW As new and material evidence has been received since the issuance of the October 2008 final decision, the criteria for reopening the claim for service connection for a skin condition are met. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1969 to April 1971; he had additional service in the Army Reserve. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In November 2016 correspondence, the Veteran’s attorney withdrew his representation. No other power of attorney forms have been received since, and therefore the Board will treat the Veteran as unrepresented in this matter. Claim to Reopen Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the AOJ’s actions, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 (West 2014) to address the question of whether new and material evidence has been received to reopen the claim for service connection. This matter goes to the Board’s jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). Historically, service connection for a skin condition was denied in a January 2005 rating decision that was not appealed. Service connection was denied based on a determination that there was no diagnosed condition. Subsequently, service connection for a skin condition (rosacea) was denied in an October 2008 rating decision that was not appealed. Service connection was denied based on a determination that the evidence of record did not show this condition was linked to service or Agent Orange exposure, nor was there evidence that a skin condition manifested to a compensable degree within a year of exposure. The evidence received in pertinent part since this most recent decision includes VA treatment records that show diagnoses to include carbuncle and furuncle of the leg, chronic hand dermatitis, and actinic damage. The Veteran also stated in his May 2013 notice of disagreement (NOD) and November 2016 formal appeal that he did not have a skin condition upon enlistment to service but had one upon his return from Vietnam. Because such diagnoses and statements were not present at the time of the prior final denial, assuming its credibility for these purposes, this evidence is sufficient to reopen the previously-denied claim. The foregoing evidence is not cumulative or redundant of the evidence previously of record and assuming its credibility relates to an unestablished fact necessary to substantiate the claim. Therefore, this evidence is new and material, and reopening of the claim for service connection for the skin condition is in order. Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). REASONS FOR REMAND The Board is of the opinion that additional development is required before the Veteran’s claims on appeal are decided. Skin Condition The Veteran contends that service connection is warranted for a skin condition as he did not have a skin condition upon enlistment to service but had one upon his return from Vietnam, to include as a result of exposure to an herbicide agent. The Veteran’s service personnel records document service in the Republic of Vietnam, and his exposure to an herbicide agent to include Agent Orange is conceded. Service treatment records also show that in August 1969 the Veteran was treated for poison oak. As noted above, VA treatment records show diagnoses to include carbuncle and furuncle of the leg, chronic hand dermatitis, and actinic damage. The Board finds that remand for VA examination and opinion to address the skin conditions diagnosed during the pendency of this appeal is warranted. Hearing Loss Disability and Tinnitus The Veteran contends that service connection is warranted for a hearing loss disability and tinnitus as related to his combat experience in service. Service personnel records show that the Veteran served as a cannoneer in the United States Army Pacific. The Veteran’s combat stressor was also verified by the United States Armed Services Center for Research of Unit Records with participation in Operation Lam Son 719. Therefore 38 U.S.C. § 1154 (b) and its implementing regulation, 38 C.F.R. § 3.304 (d), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. The Federal Circuit has held that, in the case of a combat Veteran, not only is the combat injury presumed, but so, too, is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). Notwithstanding, the Federal Circuit explained that “[e]ven when the section 1154(b) combat presumption applies, a ‘veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty.’” Id. The Veteran was afforded a VA examination in February 2011 in which the examiner opined that since his hearing loss was normal in December 1975, which was four years after leaving the military, the current hearing loss was not caused by or a result of his military noise exposure. The examiner stated that the Veteran reported that he first noticed tinnitus in 1996. The examiner opined that since the onset of tinnitus was over 25 years after leaving the military, his current tinnitus was not caused by or a result of military noise exposure. The Veteran asserted in his May 2013 NOD that the February 2011 VA examiner misquoted him and that he had ringing in his ears since service (that he noticed it having an effect on his daily life in 1996). As such, the VA examiner’s opinion was based in part on an inaccurate factual basis. The Board finds that the Veteran should be afforded a new VA examination with consideration of the combat presumption. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). PTSD The Veteran was most recently afforded an examination to evaluate his PTSD in June 2016. The Veteran indicated in his November 2016 formal appeal that the complications of his disability were worse. As such, the Board finds that remand is warranted to assess the current severity of the PTSD. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records; and, with appropriate authorization from the Veteran, any additional outstanding private treatment records identified by him as pertinent to his claims. If any of these records are found to be unavailable, this should be specifically noted in the claims file and the Veteran should be notified as to the unavailability of such records pursuant to 38 C.F.R. § 3.159 (e). 2. After the above development is completed, schedule the Veteran for a VA examination conducted by an appropriate health care provider to determine the nature and etiology of his claimed skin condition. The electronic claims files, to include a copy of this remand, must be made available to and be reviewed by the examiner in conjunction with the examination. All necessary testing should be accomplished, as appropriate. The examiner should address the following: Opine whether it is at least as likely as not (50 percent probability or greater) that any skin condition diagnosed during the pendency of this appeal, to include the diagnoses noted in the body of this remand, had their onset in service or are otherwise etiologically related to service, to include the aforementioned poison oak and exposure to herbicide agent. A full and complete rationale for all opinions expressed must be provided. If the examiner is unable to offer any of the requested opinions, a rationale should be provided for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 3. Schedule the Veteran for a VA examination conducted by an appropriate health care provider to determine the nature and etiology of his claimed hearing loss disability and tinnitus. The electronic claims files, to include a copy of this remand, must be made available to and be reviewed by the examiner in conjunction with the examination. All necessary testing should be accomplished, as appropriate. The examiner should address the following: Opine whether it is at least as likely as not (50 percent probability or greater) that any hearing loss disability and tinnitus diagnosed during the pendency of this appeal had their onset in service or are otherwise etiologically related to service. In addressing this question, the examiner is advised that in-service acoustic injuries as related to hearing loss and tinnitus are established by virtue of the combat presumption, despite no documentation of the same. Failure to concede in-service acoustic injuries and the resulting disabilities will render the opinion inadequate. A full and complete rationale for all opinions expressed must be provided. If the examiner is unable to offer any of the requested opinions, a rationale should be provided for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones, 23 Vet. App. 382. 4. After the above development is completed, arrange for the Veteran to be afforded a VA examination in order to ascertain the current severity of the service-connected PTSD. The claims file must be reviewed by the examiner, and any indicated studies should be performed. All appropriate diagnostics should be accomplished and all clinical findings should be reported in detail. Ensure that the examiner provides all information required for rating purposes. (Continued on the next page)   5. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal. If any benefit sought on appeal remains denied, furnish the Veteran with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.M.K., Counsel