Citation Nr: 18161086 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 15-36 818 DATE: December 28, 2018 ORDER Entitlement to service connection for memory loss is dismissed. Entitlement to a rating in excess of 100 percent for post-traumatic stress disorder (PTSD) is dismissed. The request to reopen the claim of entitlement to service connection for dermatitis is granted. Entitlement to service connection for atopic dermatitis is granted. REMANDED Entitlement to service connection for glaucoma is remanded. Entitlement to service connection for cataracts is remanded. Entitlement to service connection for a throat disability is remanded. Entitlement to a rating in excess of 20 percent for gout is remanded. Entitlement to a rating in excess of 20 percent for dry eyes with meibomianitis and light sensitivity is remanded. FINDINGS OF FACT 1. In a December 2018 written statement, the Veteran withdrew his appeal as to the issue of service connection for memory loss. 2. At his December 2018 Video Conference hearing, the Veteran stated on the records that he wished to withdraw his appeal of the issue of an increased rating for PTSD. 3. An April 2014 rating decision denied service connection for dermatitis. The Veteran did not appeal the decision and therefore, the decision became final. 4. The evidence associated with the claim file after the April 2014 rating decision is probative and relevant concerning service connection for dermatitis. 5. The Veteran’s atopic dermatitis began in service and has continued since service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue of service connection for memory loss have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of the appeal of the issue of an increased rating for PTSD have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 3. The April 2014 rating decision is final as to the denial of service connection for dermatitis. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 4. New and material evidence sufficient to reopen the claim for service connection for dermatitis has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 5. The criteria for service connection for atopic dermatitis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(d). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1969 to May 1972 and from January 1980 to December 1981. This matter came before the Board of Veterans Appeals (Board) on appeal from January 2015 and January 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran’s Law Judge during a December 2018 Video Conference hearing. Withdrawal An appeal may be withdrawn by an appellant or his or her authorized representative as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. 1. Entitlement to service connection for memory loss The Veteran submitted an December 2018 written statement that he wanted to withdraw his appeal for service connection for memory loss, stating that he believes it is connected to his already service-connected PTSD. As the Veteran submitted a written statement indicating in clear language that he wished to withdraw his appeal, the Board finds that the withdrawal was explicit, unambiguous and done with the full understanding of the consequences of such an action. See DeLisio v. Shinseki, 25 Vet. App. 45 (2011). Accordingly, the Board does not have jurisdiction to review the issue on appeal, and the appeal is dismissed. 38 C.F.R. § 20.204. 2. Entitlement to a rating in excess of 100 percent for post-traumatic stress disorder (PTSD) At the November 2018 Video Conference Hearing, the Veteran confirmed on the record that he wished to withdraw his appeal of the issues of an increased rating for PTSD. The undersigned Veteran’s Law Judge advised the Veteran of the impact of such a withdrawal and the Veteran confirmed his wish to withdraw. As the Veteran confirmed on the record that he wished to withdraw his appeal regarding these issues after being advised of the impact of the withdrawal, the Board finds that the withdrawal was explicit, unambiguous and done with the full understanding of the consequences of such an action. See DeLisio v. Shinseki, 25 Vet. App. 45 (2011). Accordingly, the Board does not have jurisdiction to review the issue on appeal, and the appeal is dismissed. 38 C.F.R. § 20.204. Service Connection 3. Whether new and material evidence has been submitted sufficient to reopen the claim for service connection for dermatitis A prior final decision will be reopened if new and material evidence is presented or secured with respect to a claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means evidence not previously submitted to agency decision makers. 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 of record at the time of the last prior final denial of the issue on appeal, and must raise a reasonable possibility of substantiating the claim. New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). In determining whether the evidence is new and material the specified basis for the last final disallowance must be considered. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Mere offering of an alternative theory of entitlement does not constitute new and material evidence sufficient to reopen the claim. Roebuck v. Nicholson, 20 Vet. App. 307 (2006); Bingham v. Principi, 18 Vet. App. 470 (2004), aff’d 421 F.3d 1346 (Fed. Cir. 2005). To establish whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). The Veteran asserts that he is entitled to service connection for dermatitis, which was previously denied in an April 2014 rating decision. The Board concludes new and material evidence has been submitted and reopening is therefore warranted. The April 2014 rating decision denied service connection for dermatitis on the basis that there was no evidence of a current skin disability. The decision was not appealed and new and metrial evidence was not submitted within a year of the decision, as such, the decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The evidence previously considered that pertains to the issue on appeal includes service treatment records and VA treatment records from May 2005 through December 2008 and from January 2014 to March 2014. Since the April 2014 rating decision, VA treatment records have been added to the file, including February 2017 records documenting a current diagnosis of atopic dermatitis. The Board finds that this evidence pertains to the unestablished fact of the Veteran’s current skin disability. It therefore raises a reasonable possibility of substantiating the Veteran’s entitlement to service connection and constitutes new and material evidence. 38 C.F.R. § 3.156(a). Therefore, reopening the claim for service connection for dermatitis is warranted. 4. Entitlement to service connection for dermatitis. The Veteran contends that he has had dry, itchy skin with rashes since an in-service chemical exposure in November 1971. The Board concludes that the Veteran has a current disability of atopic dermatitis that has been continuous since service and that service connection is therefore warranted. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). November 1971 service treatment records document hospitalization for gas inhalation. The Veteran was diagnosed with inhalation of tear gas and chemical irritation of the throat. April 1972 service treatment records from the dermatology clinic diagnosed generalized asteatosis, or eczema, total body, with little pruritus. A December 1973 VA examination noted the Veteran’s complaints of dry skin over his entire body. No lesions were noted upon examination and the examiner did not make a diagnosis but prescribed Lubriderm. A May 1974 VA examination noted complaints of dry, irritated skin but examination was normal. The examiner diagnosed contact dermatitis. The Veteran later enlisted in the Navy, and his September 1979 medical history report noted skin disease and rash in his prior period of service. September 1981 dermatology records note excessive dry skin covering the entire body since 1972. A December 1981 separation medical history report noted dry skin and treatment by dermatology. January 2014 VA treatment records note skin lesions for 20 years. On examination, the provider noted scattered hyperpigmented scab-like lesions on the torso, abdomen and chest, opining that they looked like healed scabs after scratching. December 2016 VA treatment records document a diagnosis of atopic dermatitis, a form of eczema. An August 2015 VA examination noted the Veteran’s claims of 1-2 rashes per year since gas exposure in service and his treatment with topical medications. The examiner noted that post-service VA treatment records showed ongoing reports of a skin condition that appeared to wax and wane. The provider then stated that he could not confirm rashes on evaluation that day, and then opined that the Veteran’s recent treatment for an insect bite reaction was less likely due to exposure to tear gas or eczema noted in service. The Board notes that since the March 2015 VA examination, the Veteran has been diagnosed with atopic dermatitis, a form of eczema. As the opinion did not address atopic dermatitis, the Board accords it no probative weight regarding etiology. The Veteran has consistently reported that he has had periodic rashes and dry, itchy skin with lesions since service. The Board notes that the Veteran is competent to report symptoms he experiences and accords his statements significant probative weight. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board finds that the competent evidence of record indicates that the Veteran has a current disability of atopic dermatitis that was incurred during service and has continued since service. Service treatment records from both periods of service, including the December 1981 separation medical history report, note dry skin and eczema. The May 1974 VA examiner diagnosed dermatitis and the March 2015 VA examiner opined that post-service VA treatment records indicated an ongoing skin condition that waxed and waned. While the examiner did not find a rash upon examination, the Board notes that this is consistent with the examiner’s own characterization of the skin condition as waxing and waning. The Board notes that it is also consistent with the Veteran’s reports of dry, itchy skin and rashes that have appeared periodically since service. The Board finds that there is simply no basis on which dissociate the in-service diagnosis of generalized asteatosis, or eczema, from the Veteran’s currently diagnosed atopic dermatitis, or eczema. Service connection for atopic dermatitis is therefore warranted. REASONS FOR REMAND 1. Entitlement to service connection for a throat disability is remanded. An August 2015 VA examination and September 2015 addendum found that the Veteran’s throat disability was not due to service, noting that there was no active inflammation of the soft or hard palate on examination and that he was unable to identify inflammation from service to the current time. The Board notes, however, that subsequent April 2016 VA treatment records indicate that the Veteran was hospitalized with ulcers in his throat and a test was positive for H. pylori. Remand for a new examination to consider the new evidence of record is therefore required. In addition, the Veteran reported at his December 2018 hearing that he receives ongoing private treatment at Kaiser. Outstanding private treatment records should be obtained upon remand. 2. Entitlement to service connection for glaucoma is remanded. 3. Entitlement to service connection for cataracts is remanded. 4. Entitlement to a rating in excess of 20 percent for dry eyes with meibomianitis and light sensitivity is remanded. The Veteran contends that his eye disabilities are secondary to his service-connected dry eyes. As the prior VA examinations did not address the issue of secondary service connection, remand for a new VA eye examination is required. As the required development could produce evidence pertinent to the issue of an increased rating for dry eyes, it must also be remanded as inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 5. Entitlement to a rating in excess of 20 percent for gout is remanded. At his December 2018 hearing, the Veteran testified that his gout has worsened since his last VA examination in March 2016. The Veteran also submitted an October 2018 statement that he has had several surgeries, had pins put in his toes and required additional surgery. As the evidence of record suggests his service-connected disability has increased in severity since the most recent VA examination, the Board finds that the Veteran should be afforded a new examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from December 2018 to the Present. 2. Ask the Veteran to complete a VA Form 21-4142 for Kaiser. Make two requests for the authorized records from Kaiser, unless it is clear after the first request that a second request would be futile. 3. After the development outlined in (1)-(2), schedule the Veteran for an appropriate VA examination, to determine the etiology of any current throat disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current throat disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s active service. Attention is requested to April 2016 VA treatment records noting throat ulcers. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. 4. After the development outlined in (1)-(2), schedule the Veteran for an appropriate VA eye examination, to determine the etiology of any current glaucoma or cataract disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current eye disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s active service, to include whether it is related to the Veteran’s service-connected dry eyes. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. 5. After the development outlined in (1)-(2), schedule the Veteran for an appropriate VA examination to determine the current level of severity of his gout. The examiner should review the file and provide a complete rationale for all opinions expressed. 6. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Arnold, Associate Counsel