Citation Nr: 20002404 Decision Date: 01/14/20 Archive Date: 01/10/20 DOCKET NO. 17-33 264 DATE: January 14, 2020 ORDER New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for a skin rash is granted. Service connection for a skin rash is granted. FINDINGS OF FACT 1. The Veteran served on active duty from April 1968 to January 1970, including service in Vietnam. 2. An unappealed December 2009 rating decision denied service connection for chloracne. 3. Evidence received since the December 2009 rating decision is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a skin rash. 4. The Veteran’s skin rash is causally or etiologically related to service. CONCLUSIONS OF LAW 1. The December 2009 rating decision, which denied service connection for chloracne, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2018). 2. Evidence submitted to reopen the claim of entitlement to service connection for a skin rash is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (a) (2018). 3. A skin rash was incurred service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In October 2019 the Veteran testified at a videoconference hearing held before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Although the RO developed the claim as an original service connection claim, as discussed in detail below, the current skin disorder claim has been pending since October 2015 and was characterized at that time as a claim for service connection for chloracne. As such, (this is underscored by his January 2017 notice of disagreement and his videoconference hearing testimony, both of which clearly show that all claims are based upon the same skin symptoms and fact pattern), it is considered as a claim to reopen. Boggs v. Peake, 520 F. 3d 1330 (Fed. Cir. 2008); Velez v. Shinseki, 23 Vet. App. 199 (2009). Because all claims have been granted in this decision, there is no prejudice to the Veteran in this regard. New and Material Evidence to Reopen Claim Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). Further, RO decisions become final “only after the period for appeal has run,” and “[a]ny interim submissions before finality must be considered by the VA as part of the original claim.” Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). If new and material evidence is received within one year after the date of mailing of an RO decision, it may be “considered as having been filed in connection with the claim which was pending at the beginning of the appeal period that prevents an initial determination from becoming final.” King v. Shinseki, 23 Vet. App. 464, 466-67 (2010). When VA fails to consider new and material evidence submitted within the one-year appeal period pursuant to § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final. Young v. Shinseki, 22 Vet. App. 461, 466 (2009); see also Buie v. Shinseki, 24 Vet. App. 242, 252 (2011) (remanding for the Board to consider the application of 38 C.F.R. § 3.156 (b) and whether the regional office correctly viewed the statements in question “as new claims”). That is, when statements are received within one year of the rating decision, the Board’s inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156 (b). Service connection for chloracne was initially denied in a December 2009 rating decision on the basis that the Veteran was not diagnosed with chloracne and chloracne did not manifest to a compensable degree within one year of the last exposure to herbicides. He did not file a timely notice of disagreement with the December 2009 rating decision and no new and material evidence was received within a year of the December 2009 rating decision. As such, the December 2009 rating decision is final. Subsequently, the Veteran filed a new claim for service connection for chloracne in October 2015. In a December 2015 rating decision, the RO denied reopening the claim for service connection for chloracne because new and material evidence was not received. It was found that the additional evidence received did not establish that chloracne developed to a compensable degree within the specified time period to qualify for presumptive service connection. The Veteran did not file a timely notice of disagreement with the December 2015 rating decision; however, he submitted new and material evidence within one year of the December 2015 rating decision, in the form of a June 2016 opinion letter from his VA physician. As such, the December 2015 rating decision did not become final. The December 2009 rating decision is therefore the last final denial of the claim. The evidence added to the record since the December 2009 rating action is new and material, and reopening of the claim is in order. In this regard, the evidence added to the record includes June 2016 and October 2019 letters from the Veteran’s treating VA physician which reflected that he has a skin rash/dermatitis which is etiologically related to service. This new evidence raises a reasonable possibility of substantiating the claim, as it reflects a nexus between the current skin diagnosis and service. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. Service Connection Turning to the merits of the appeal, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The Veteran claims that service connection is warranted for a skin rash because it first manifested during service in Vietnam and has continued, on and off (a few times a year), ever since. In a September 2015 VA treatment record, he indicated that he had a rash on his whole body three or four times a year since he was in Vietnam. The Veteran has current diagnoses of several skin rash type disorders. Specifically, numerous VA treatment records dated in September 2011, November 2013, September 2015, and November 2015 showed diagnoses of unspecified disorder of the skin and subcutaneous tissue, inflamed seborrheic keratosis, dermatitis, and folliculitis. Therefore, the first element of service connection has been met. As to an in-service incurrence, the service treatment records (STRs) do not reflect any complaints, findings or diagnosis of any skin rash or skin disorder. However, the Veteran is competent to attest to factual matters of which he has first-hand knowledge (e.g., the presence of a skin rash). Therefore, an in-service incurrence is acknowledged. As to a medical nexus, medical opinions dated in June 2016 and October 2019 from the Veteran’s treating VA physician, Dr. A., noted that the Veteran’s current skin condition is at least as likely as not related to service, based on the Veteran report that the rash began during service. There is no medical opinion against the claim and no evidence which contradicts the Veteran’s contentions that his skin rash began during service in Vietnam and continued ever since. While an April 1970 VA examination report reflected no complaints or findings of a skin rash, the Veteran has credibly testified, and the evidence shows, that this VA examination was conducted pursuant to his claim for service connection for hearing loss. Further, he has asserted that his rash only occurred every few months/it was not constant. He also testified, and the VA treatment records show, that he received private medical treatment prior to 2009, when he began receiving treatment through VA. (He credibly testified that his private physician was deceased and the records are unavailable.) Notably, a November 2009 VA psychiatric examination report noted that the Veteran’s prior medical history included rashes. Additionally, a September 2011 VA treatment record noted complaints of a rash over whole body, as well as longstanding history of follicular based bumps. Based on the above, and in giving the Veteran the benefit of the doubt, entitlement to service connection for a skin rash is warranted. The appeal is granted. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Redman, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.