Citation Nr: 1807587 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-18 903 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE 1. Whether new and material evidence has been submitted to reopen a claim for folliculitis (claimed as skin disorder). 2. Entitlement to service connection for folliculitis (claimed as skin disorder). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Boal, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1970 to December 1971, including a tour of duty in the Republic of Vietnam. This matter come before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, SC, which denied service connection for sores on buttocks (claimed as skin disorder). In the present case, although the RO provided appropriate notification for a new and material evidence claim, the RO did not adjudicate the claim as one involving new and material evidence. Regardless of whether the RO determined new and material evidence had been submitted, 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), aff'g, 8 Vet. App. 1 (1995)). As the Board is reopening the claim there is no prejudice to the Veteran. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in November 2017 and a transcript of that hearing is associated with the record. The reopened claim is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. FINDINGS OF FACT 1. In a June 2008 decision, the Board denied the Veteran's claim of entitlement to service connection for a skin rash. The decision was final when issued. 2. Evidence submitted since the June 2008 decision relates to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The June 2008 Board decision denying service connection for a skin rash was final when issued. 38 U.S.C. § 7104 (b) (2012); 38 C.F.R. §§ 20.1100 (2017). 2. New and material evidence sufficient to reopen the claim of entitlement to service connection for a skin condition has been received. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102 , 3.159. When a petition to reopen a claim for service connection is received, the notice must include the five elements of service connection, the elements of new and material evidence, and the reasons for the prior final denial. Kent v. Nicholson, 20 Vet. App. 1, 5 (2006). A March 2012 letter fully satisfied the duty to notify provisions prior to initial adjudication of the petition to reopen the claims for service connection. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b)(1). VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting in the procurement of service treatment records (STRs) and pertinent post-service treatment records (VA and private) and providing an examination when needed to assist in deciding the claim. 38 U.S.C.A. § 5103A ; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished. The claims file contains the Veteran's service entrance examination, service personnel records, VA medical treatment evidence, and lay statements. Based on the foregoing, the Board finds that additional efforts are not required under the VCAA. The Veteran has not identified, and the record does not otherwise suggest, any additional existing evidence that is necessary to decide this claim that has not been obtained and that is obtainable; therefore, no further notice or assistance with this claim is required. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). VA's duties to notify and assist with this claim have been satisfied. Legal Criteria to Reopen Service Connection Prior unappealed decisions of the Board are final. 38 U.S.C.A. §§ 7104 (b); 38 C.F.R. §§ 3.160 (d), 20.302(a), 20.1100. If, however, 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. Manio v. Derwinski, 1 Vet. App 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). Material evidence means 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. Id. New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof; the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010). A claim for service connection for a skin rash was considered and denied by the Board in a June 2008 decision. The Veteran was notified of the Board's decision and provided notice of his procedural and appellate rights. The Veteran did not appeal the June 2008 Board decision to the Veterans Claims Court within 120 days of that notice, and it is final. 38 U.S.C.A. § 7104 (b); 38 C.F.R. § 20.1100. The Board denied the claim on the basis that although the Veteran experienced recurrent skin disorders since his discharge, there was no indication that any of the disorders had been chronic since service or that they were related to his military service, to include his exposure to Agent Orange. The evidence received since the June 2008 Board decision includes the Veteran's testimony at a Decision Review Officer hearing and Board hearing. The Veteran testified that he first noticed symptoms in service and further testified that he had been treated for the condition since leaving the service. The Veteran also testified that he spent a lot of time in the wet grass and thought that could have caused the condition. Presuming the newly submitted evidence credible for the purposes of reopening the Board finds that the evidence suggests continuity of symptoms which raises a reasonable possibility of substantiating the claim. As such, the Veteran's claim for service connection for a skin condition is reopened. ORDER New and material evidence having been submitted the petition to reopen the claim of service connection for a skin condition is granted. REMAND The Veteran claims service connection for a skin condition which has been diagnosed as folliculitis. The Veteran testified at the hearing in this matter that he received treatment for the claimed disability at a state run facility in Woodburn, NY within one year of his discharge as well as VA facilities located in Bronx, NY, Manhattan, NY, and in Montrose, NY. He reported treatment at some of these facilities as early as 1974. Although records were requested in 2005 and 2006, the earliest VA records associated with the file are from 1984. It is unclear from the file whether further attempts could assist in obtaining any records from the 1970s. As there are relevant outstanding treatment records, this matter should be remanded so all of the Veteran's post-service treatment records can be obtained. Furthermore the Board finds further medical opinion is necessary. Although the Veteran was afforded a VA examination in September 2013, this examiner focused on whether the current conditions were related to the skin condition for which the Veteran was treated in service. The examiner did not express an opinion as to the relationship, if any, between the current skin condition and the presumed exposure to herbicides. Accordingly, the case is REMANDED for the following action: 1. The RO should attempt to obtain all records from any physician or facility that the Veteran sought treatment from related to his claimed skin disorder and associate those records with the claims file. The RO should specifically request records from the state run facility identified by the Veteran in Woodburn, NY, as well as any other facility or physician identified by the Veteran. If any of the Veteran's post-service treatment records are not available or otherwise cannot be obtained, the RO should document all attempts to obtain those records. 2. The RO should request records from VA facilities located in Bronx, NY, Manhattan, NY, and in Montrose, NY from 1974. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and be allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A (b)(2) and 38 C.F.R. § 3.159 (e). 3. Schedule the Veteran for a VA examination with an appropriate examiner to assess the nature and etiology of his skin condition. a) For each skin condition diagnosed, state whether it is at least as likely as not (a 50% or better probability) etiologically related to the Veteran's presumed exposure to herbicides. The examiner should also discuss the testimony of sitting in wet grass for prolonged periods and provide an opinion as to the relationship, if any, between any skin condition and such action. A complete rationale for all opinions must be provided. 4. After completing the above, and any other development deemed necessary, re-adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs