Citation Nr: 1821082 Decision Date: 04/11/18 Archive Date: 04/19/18 DOCKET NO. 14-14 897 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for an acquired psychiatric disorder and, if so, whether service connection is warranted. 2. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a skin disorder, and, if so, whether service connection, to include as due to exposure to herbicide agents, is warranted. REPRESENTATION Veteran represented by: Amberleigh Osborne, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. M. Celli, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in January 2012 by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. At such time, the Veteran, via his representative, submitted additional evidence and waived Agency of Original Jurisdiction (AOJ) consideration of all evidence associated with the record since the issuance of the March 2014 statement of the case. 38 C.F.R. § 20.1304(c) (2017). Therefore, the Board may properly consider such evidence. Additionally, the undersigned held the record open for 30 days for the receipt of additional evidence or argument, which was received in May 2017. See section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154. With regard to the characterization of the Veteran's claims, a March 2010 rating decision previously denied service connection for posttraumatic stress disorder (PTSD) and chloracne. However, the United States Court of Appeals for the Federal Circuit has held that, when varying diagnoses are involved, in considering whether the claim presented is one to reopen or is a new claim to be adjudicated on the merits, "the focus of the Board's analysis must be on whether the evidence presented truly amounts to a new claim 'based upon distinctly diagnosed diseases or injuries' or whether it is evidence tending to substantiate an element of a previously adjudicated matter." Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (quoting Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008). In the instant case, the Veteran has claimed that he has an acquired psychiatric disorder and skin disorder, however variously diagnosed, related to his military service. Therefore, the Board has recharacterized the claims as shown on the title page of this decision. The reopened claim of entitlement to service connection for a skin disorder is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. In a final decision issued in March 2010, the AOJ denied service connection for an acquired psychiatric disorder, characterized as PTSD, and a skin disorder, characterized as chloracne. 2. Evidence associated with the record since the final March 2010 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claims of entitlement to service connection for an acquired psychiatric disorder and a skin disorder. 3. Resolving all doubt in the Veteran's favor, an acquired psychiatric disorder, diagnosed as PTSD and anxiety disorder, not otherwise specified (NOS), is causally related to his military service. CONCLUSIONS OF LAW 1. The March 2010 rating decision that denied service connection for acquired psychiatric disorder, characterized as PTSD, and a skin disorder, characterized as chloracne, is final. 38 U.S.C.A. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2009) [(2017)]. 2. New and material evidence to reopen the claims of entitlement to service connection for an acquired psychiatric disorder and a skin disorder has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for entitlement to service connection for PTSD and anxiety disorder NOS have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As the Board's decision to reopen the Veteran's claims of entitlement to service connection for an acquired psychiatric disorder and a skin disorder, and grant service connection for anxiety disorder NOS is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations with respect to such matters. However, consideration of the merits of the issue of entitlement to service connection for a skin disorder is deferred pending additional development consistent with the VCAA. I. Application to Reopen Previously Denied Claims Generally, a claim which has been denied in an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). 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 means existing evidence not previously submitted to agency decisionmakers. 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. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing 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). Acquired Psychiatric Disorder In a March 2010 rating decision, the AOJ denied service connection for an acquired psychiatric disorder, characterized as PTSD, on the basis that the evidence did not reflect that the Veteran engaged in combat with the enemy and his stressors had not been corroborated, his service treatment records were negative for any complaints or treatment referable to PTSD, and he did not have a diagnosis of PTSD. In March 2010, the Veteran was advised of the decision and his appellate rights. Although a private attorney submitted a timely notice of disagreement (NOD) on behalf of the Veteran, the AOJ did not accept the NOD because the private attorney was not accredited for the purposes of representation before VA and the Veteran had executed a power of attorney appointing him as his representative. Consequently, a valid NOD was not received within a year of the issuance of the March 2010 rating decision. Additionally, no new and material evidence was received within one year of the issuance of such decision, and no relevant service department records have been received since the issuance of such decision. Therefore, the March 2010 decision is final. 38 U.S.C.A. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2009) [(2017)]. Since the issuance of the March 2010 rating decision, additional evidence consisting of VA treatment records, an October 2011 VA examination, and the Veteran's testimony and statements has been received. In this regard, VA treatment records reflect a diagnosis of PTSD, major depressive disorder, and anxiety state during the appeal period. In addition, upon examination in October 2011, a VA clinical psychologist opined that the Veteran's diagnosed anxiety disorder NOS was considered at least partially related to combat experiences/military service. Similarly, in March 2012, the Veteran's treating VA psychiatrist noted that the Veteran met the criteria for PTSD, which appeared related to combat experiences. Therefore, the Board finds that the evidence associated with the record since the final March 2010 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder. Consequently, new and material evidence has been received to reopen the claim. Skin Disorder In the March 2010 rating decision, the AOJ denied service connection for a skin disorder, characterized as chloracne, on the basis that the evidence did not reflect a diagnosis of chloracne. In this regard, the AOJ acknowledged that the Veteran served in Vietnam during the requisite time period and, thus was exposed to herbicide agents; however, absent evidence that chloracne manifested to a compensable degree within one year after the Veteran's last exposure to herbicide agents, presumptive service connection for such disease was not warranted. In March 2010, the Veteran was advised of the decision and his appellate rights. Although a private attorney submitted a timely NOD on behalf of the Veteran, the AOJ did not accept the NOD because the private attorney was not accredited for the purposes of representation before VA and the Veteran had executed a power of attorney appointing him as his representative. Consequently, a valid NOD was not received within a year of the issuance of the March 2010 rating decision. Additionally, no new and material evidence was received within one year of the issuance of such decision, and no relevant service department records have been received since the issuance of such decision. Therefore, the March 2010 decision is final. 38 U.S.C.A. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2009) [(2017)]. Since the issuance of the March 2010 rating decision, additional evidence consisting of VA treatment records, an October 2011 VA examination, and the Veteran's testimony and statements has been received. Here, although the record does not demonstrate a diagnosis of chloracne, an April 2017 VA dermatology clinic note shows diagnoses of dermatitis, actinic keratosis, stucco keratosis, and onychomycosis. As such diagnosed skin disorders were not previously considered, the Board finds the evidence associated with the record since the final March 2010 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a skin disorder. Consequently, new and material evidence has been received to reopen the claim. II. Service Connection Claim Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As an initial matter, while the Veteran's service treatment records are negative for any complaints, treatment, or diagnoses referable to an acquired psychiatric disorder, the record reflects that he served in Vietnam from December 1969 to December 1970, and reported that he was exposed to small arms fire and rocket fire. He further stated that he saw killed and injured soldiers, a helicopter crash, and trucks hit land mines. At his April 2017 Board hearing, the Veteran testified that, as a result of such experiences in Vietnam, he was in fear for his life. In this regard, the Board finds that the Veteran's description of his experiences in Vietnam is credible in light of the places, types, and circumstances of his service. 38 U.S.C. § 1154(a). In addition, the Board observes that, upon examination in October 2011, a VA clinical psychologist opined that the Veteran's diagnosed anxiety disorder NOS was considered at least partially related to combat experiences/military service. Similarly, in March 2012, the Veteran's treating VA psychiatrist noted that the Veteran met the criteria for PTSD, which appeared related to combat experiences. Consequently, the Board resolves all doubt in the Veteran's favor and finds that his acquired psychiatric disorder, diagnosed as PTSD and anxiety disorder, not otherwise specified (NOS), is causally related to his military service. As such, service connection for such disorder is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER New and material evidence having been received, the claim for service connection for an acquired psychiatric disorder is reopened. New and material evidence having been received, the claim for service connection for a skin disorder is reopened. Service connection for PTSD and anxiety disorder NOS is granted. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's reopened claim of entitlement to service connection for a skin disorder so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Here, while an October 2011 VA examination failed to reveal any visible skin disorder, subsequent VA treatment records document various skin diagnoses, to include dermatitis, actinic keratosis, stucco keratosis, and onychomycosis. In addition, as the Veteran served in Vietnam during the requisite time period, his exposure to herbicide agents is acknowledged. Furthermore, he has alleged that his skin disorder began in Vietnam and his representative submitted a medical treatise article from February 2014 entitled Skin Cancer Risk Seen in Vietnam Vets Exposed to Agent Orange, which indicated that individuals exposed to Agent Orange are at increased risk for non-melanoma invasive skin cancer, even decades after exposure. As a result, the Board finds that remand for a VA examination is warranted in order to ascertain whether any skin disorder diagnosed during the pendency of the appeal is etiologically related to his military service, to include his acknowledged exposure to herbicide agents. Accordingly, the case is REMANDED for the following actions: 1. Afford the Veteran an appropriate VA examination to determine the current nature and etiology of his claimed skin disorder. The examiner should review the record and note such review in the examination report. The examination should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. Thereafter, the examiner should address the following inquiries: (A) Identify all skin disorders found to be present at any point pertinent to the Veteran's October 2011 claim, even if such have since resolved, to include dermatitis, actinic keratosis, stucco keratosis, and onychomycosis. (B) For each diagnosed skin disorder, please offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such had its onset during, or is otherwise related to, the Veteran's military service, to include his acknowledged exposure to herbicide agents. In offering such opinion, the examiner should consider the February 2014 medical treatise article entitled Skin Cancer Risk Seen in Vietnam Vets Exposed to Agent Orange, which indicated that individuals exposed to Agent Orange are at increased risk for non-melanoma invasive skin cancer, even decades after exposure. The examiner is advised that the sole basis for a negative opinion may not be that the Veteran's skin disorder(s) is not a disease acknowledged to be presumptively related to herbicide exposure. A rationale for any opinion offered should be provided. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter 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 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). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs