Citation Nr: 20003201 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 17-43 303 DATE: January 14, 2020 ORDER New and material evidence having been received, the request to reopen the finally disallowed claim of entitlement to service connection for tibia and fibula fracture, status post-open reduction and internal fixation of the left leg, claimed as a left leg injury and recharacterized herein as residuals of a left leg injury, is granted. Entitlement to service connection for residuals of a left leg injury is granted. Entitlement to service connection for a skin condition of the groin area, claimed as a chronic rash of the groin area, is granted. FINDINGS OF FACT 1. Service connection for residuals of a left leg injury was denied in a July 2014 rating decision; the Veteran did not timely file an appeal and additional relevant evidence was not received within the appeal period. 2. Additional evidence received since the July 2014 rating decision is new, relates to an unestablished fact, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for residuals of a left leg injury. 3. The evidence of record clearly and unmistakably shows that the Veteran’s left leg injury preexisted service and was permanently worsened and aggravated by the Veteran’s active duty service. 4. The Veteran served in the Republic of Vietnam in the Vietnam Era and exposure to herbicide agents is presumed. 5. The most competent and probative evidence of record demonstrates that the Veteran’s skin condition of the groin area, variously diagnosed as dermatitis, vitiligo, and lichen simplex chronicus, was incurred in service. CONCLUSIONS OF LAW 1. The July 2014 rating decision that denied service connection for residuals of a left leg injury is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received and the criteria for reopening the finally disallowed claim of entitlement to service connection for residuals of a left leg injury are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for establishing service connection for residuals of a left leg injury have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. 4. The criteria for service connection for a skin condition of the groin area, claimed as a chronic rash of the groin area and variously diagnosed as dermatitis, vitiligo, and lichen simplex chronicus, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to February 1973, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In October 2019, the Veteran testified in a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been prepared and associated with the Veteran’s claims file. See October 2019, Hearing Transcript. New and Material Evidence Rating decisions that have not been timely appealed are binding and final based on the evidence of record at the time of the prior decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.1103. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted or considered by agency decision makers. Material evidence is evidence which, either by itself or in conjunction with other previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can neither be cumulative or redundant of the evidence at the time of the last prior denial of the claim and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). VA must review the evidence submitted since the last final disallowance of the claim on any basis to determine whether a claim may be reopened based on new and material evidence. See Hickson v. West, 12 Vet. App. 247, 251(1999). The Veteran initially filed a claim for service connection for residuals of a left leg injury in December 2013. See December 2013, VA Form 21-526EZ. A July 2014 rating decision denied the claim, citing a preexisting condition without aggravation in service as the basis for the denial. See July 2014, Rating Decision. The Veteran did not timely perfect an appeal, nor did he submit new and material evidence within a year of that rating decision. 38 C.F.R. § 3.156(b). The July 2014 rating decision, therefore, became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. In August 2016, the Veteran submitted a request to reopen the claim of service connection for residuals of a left leg injury. In a November 2016 rating decision, the Agency of Original Jurisdiction (AOJ) denied reopening the claim, finding that new and material evidence had not been submitted. See November 2016, Rating Decision. Upon receipt of the Veteran’s timely filed notice of disagreement with that decision, a statement of the case was issued, which reopened the claim but continued the denial of service connection based upon a finding that the condition was not aggravated beyond its natural progression by military service. See June 2017, Statement of the Case; but see, Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (holding that the Board still has a legal duty to determine whether new and material evidence has been presented to reopen a previously disallowed claim, regardless of the AOJ’s determination on that issue). In reviewing the evidence added to the claims folder since the last final denial in the July 2014 rating decision, this evidence shows that the Veteran was treated by a private physician as recently as May 2019, who provided an opinion concerning the progression of the Veteran’s leg condition, basing the medical conclusions on the Veteran’s accurate proffer of what his service treatment record and historical medical records would depict. See May 2019, Private Medical Record; see also 38 U.S.C. § 7105(e) (noting that waiver of AOJ consideration of additional evidence is presumed in circumstances where the new evidence is submitted by the Veteran or the Veteran’s representative). This evidence was not of record or considered in the last final denial and is new. 38 C.F.R. § 3.156(b). As the private medical opinion relates to the Veteran’s reported symptoms and diagnoses of his left leg condition, it is material to the Veteran’s claim. Presuming the credibility of this evidence, but not its weight, new and material evidence has been received. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Therefore, the claim for service connection for residuals of a left leg injury is reopened. 38 C.F.R. § 3.156(a). Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted, or for aggravation of a preexisting injury suffered or disease contracted, in the line of duty in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection the following elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical “nexus” requirement). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); see 38 C.F.R. §§ 3.303(a), 4.125(a). 1. Entitlement to service connection for residuals of a left leg injury. The Veteran contends that his current disability of residuals of a left leg injury is due to his military service, specifically, that his condition severely worsened after surgical treatment received in January 1973 prior to his honorable discharge from active duty service. See January 2017, Notice of Disagreement; August 2017, VA Form 9; October 2019, Hearing Transcript; October 2019, Correspondence (Veteran’s Written Statement). Every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. In this case, the Veteran’s left leg injury was noted on his enlistment examination. See February 1969, Service Treatment Record (STR). Specifically, the Veteran’s February 25, 1969 service enlistment examination showed that he reported a bad left leg due to a 1966 car accident. Id. The examiner acknowledged the resulting placement of a steel plate in the Veteran’s left tibia but also referenced a letter from an orthopedic surgeon stating that the Veteran was fit for military service. Id.; 38 C.F.R. § 3.385. Accordingly, there was a preexisting condition noted in the Veteran’s records. See 38 U.S.C. § 1153. Because the Veteran’s disability of residuals of a left leg injury was noted at the time of examination for enlistment, which the Veteran also attested to at the October 2019 Board Hearing, he is not entitled to the presumption of soundness. 38 U.S.C. § 1111; see also Paulson v. Brown, 7 Vet. App. 466, 468 (1995). As a result, the issue to be decided is whether the Veteran’s preexisting residuals of a left leg injury was aggravated by service. When a preexisting disease or injury is noted on an entrance examination, 38 U.S.C. § 1153 provides that a preexisting injury or disease will be considered to have been aggravated by active military service, where there is an increase in disability during such service, unless there is a specific finding that the increased disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). The presumption of aggravation applies only when a pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In considering whether to apply the presumption of aggravation, the Board must first determine whether there is an increase in the severity of the preexisting disorder. 38 C.F.R. § 3.306(a). The Veteran bears the burden of showing that the preexisting condition worsened in service. Wagner v. Principi, 370 F.3d 1080 (Fed. Cir. 2004). Until the Veteran shows an increase in disability occurred in service, the presumption of aggravation does not attach and, thus does not shift the burden of rebuttal to VA. Once the presumption has been established, the burden then shifts to VA to show clear and unmistakable (obvious or manifest) evidence that the increase in disability was a result of the natural progress of the disease. Id.; Horn v. Shinseki, 25 Vet. App. 231, 233 (2012). In this case, the Veteran has met his initial burden of showing a worsening of his condition in service. The Veteran testified that prior to his military service, his left leg condition was asymptomatic and did not physically limit him in any way. See October 2019, Hearing Transcript. Indeed, the Veteran attested to his ability to complete a one-mile course run in five minutes despite his left leg disability. Id. This assertion is corroborated by the enlistment examination record which references physical medical clearance being authorized by an orthopedic surgeon concerning the Veteran’s leg condition. See February 1969, Service Treatment Record (STR). Within the Veteran’s initial months of service his records depict that he began receiving treatment for pain associated with his leg due to PE. See July 1969, Service Treatment Record (noting pain during PE and on marching). On no less than half a dozen additional occasions, the Veteran reported symptoms of increased pain and worsening of his condition, including in March 1970 when the Veteran reported that he was unable to stand and requested light duty. See March 1970, Service Treatment Record. Because of the worsening pain and increased severity of his symptoms, the Veteran was afforded orthopedic consultations while on active duty and ultimately underwent a surgical procedure on January 8, 1973, to remove the steel plate and four of the five screws from his left leg. See January 1973, Service Treatment Record. The Veteran experienced complications from an infection of the surgical site of the procedure, but overall, the wound healed after his honorable discharge in February 1973. Id. Nevertheless, as attested to by the Veteran and supported by his most recent private treatment records, the residuals of the Veteran’s left leg injury permanently worsened and caused partially debilitating experiences ever since the Veteran’s active duty service. See October 2019, Hearing Transcript; May 2019, Private Treatment Record. Based on this evidence, in addition to a thorough review of the Veteran’s claim file, the Board finds that the Veteran has met his initial burden of showing an increase in the severity of his condition in service, and as such, the presumption of aggravation applies. 38 U.S.C. § 1153. The Veteran did not experience pain or symptoms of the residuals of his left leg injury prior to his active duty service and service treatment records as well as private records post-service, establish that the Veteran has endured a worsening of his condition which now requires ongoing care and treatment and limits the Veteran’s physical activity. The Board further finds that this presumption has not been rebutted, and consequently, service connection is granted. Considering the evidence in opposition to the Veteran’s claim, the Board acknowledges that a VA examination was completed in June 2014. See June 2014, VA Examination Report. However, the examiner failed to address the issue of aggravation during service. Id. Although that report acknowledges the continuing complaints of worsening symptoms reflected in the Veteran’s service records, it did not address the complaints in terms of showing aggravation resulting from service. Id. Instead, the rationale for the opinion is premised upon the record being silent for treatment after the Veteran’s discharge until 2012, with reference also erroneously being made to the Veteran’s reluctance to undergo the January 1973 surgery at an earlier time. Id. It is pertinent, in this regard, to note that the Veteran served overseas during much of his active duty service, including service in the Republic of Vietnam as well as being stationed in Guam and the Philippines. See Military Personnel Records. The Board finds that the most probative evidence of record is the medical opinion provided by the Veteran’s private treating physician as well as the service treatment records demonstrating the worsening of the Veteran’s condition while in service. Based upon the foregoing, the evidence of record does not clearly and unmistakably establish that the worsening of the Veteran’s disability is due to the natural progression of the condition. Therefore, the Board determines that the Veteran’s preexisting disability of residuals of a left leg injury was aggravated by service. Accordingly, service connection for residuals of a left leg injury is granted. 2. Entitlement to service connection for a skin condition, claimed as a chronic rash of the groin area. The Veteran asserts that he has a skin condition, claimed as a chronic rash of the groin area, that is related to his military service, more specifically, as a result of his exposure to herbicides. The Veteran’s skin condition of the groin area has been variously diagnosed as dermatitis, vitiligo, and lichen simplex chronicus. See August 2016, Private Treatment Record; March 2017, VA Examination Report; April 2019, Private Treatment Record. Based upon these records, the Board finds that the first element of service connection, a current disability, has been met. 38 U.S.C. §§ 1131, 5107(b); Shedden, 557 381 F.3d at 1163; 38 C.F.R. § 3.303(a). As the Veteran served in the Republic of Vietnam during the period beginning in August 1970 and ending in June 1971, and in the absence of affirmative evidence to the contrary, he is presumed to have been exposed to herbicides during his Vietnam service. 38 C.F.R. § 3.307(a)(6)(iii). The diagnoses attributed to his skin condition, however, are not among the conditions for which presumptive service connection is available based on herbicide exposure. 38 C.F.R. §§ 3.307, 3.309(e). Accordingly, service connection on a presumptive basis is not warranted. The unavailability of presumptive service connection for a disability based on exposure to herbicides, however, does not preclude a veteran from establishing service connection with proof of direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Turning next to the second requirement of an in-service injury or event, as exposure to an herbicide agent has been conceded, the second element of direct service connection is also met. See Shedden, 381 F.3d at 1167. Furthermore, the Board finds the Veteran’s testimony and statements to be credible concerning the his experience of symptoms while in service. See January 2017, Notice of Disagreement; August 2017, VA Form 9; October 2019, Hearing Transcript; October 2019, Correspondence (Veteran’s Written Statement). The Veteran testified at length about the onset of his symptoms, which is further supported by his service treatment records demonstrating treatment for a skin condition while on active duty. See September 1970, Service Treatment Record. Service connection then turns upon whether there is evidence of a nexus between the claimed in-service disease or injury and the present disability. See Shedden, 381 F.3d at 1167. The record includes a VA examination report which provides a negative nexus opinion regarding the Veteran’s current skin disability and its relation to his active duty service. See March 2017, VA Examination Report. The rationale provided scrutinized the lack of a specific diagnosis within the Veteran’s records prior to the Veteran’s VA dermatological treatment in 2014 and August 2016 private treatment report. Id. Based upon this finding, the examiner opined that the currently diagnosed skin conditions did not exist in service and are not related to any in-service event or injury. Id. Although the Veteran was not diagnosed with the specific skin conditions in service, he complained of symptoms in service and those symptoms were documented in medical treatment records. See September 1970, Service Treatment Record. Specifically, the Veteran testified that beginning in service while he was serving overseas and unable to avail himself to adequate medical care during a time of war, he experienced intense itching, bumps and lesions, and redness and tenderness of his groin area. See October 2019, Hearing Transcript. In addition, the Veteran credibly testified to the continuation of those same symptoms which later resulted in the 2014 and 2016 diagnoses of his current skin conditions. See January 2014, VA Treatment Record; August 2016, Private Treatment Record; March 2017, VA Examination Report; April 2019, Private Treatment Record. The Board recognizes that the Veteran’s diagnosed skin conditions are not chronic conditions for which the continuity of symptomatology may support establishing the elements of service connection pursuant to 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, the Board also recognizes that service connection may be granted for any disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The lay statements provided by the Veteran are consistent with, and corroborated by, the Veteran’s historical treatment notes. A lay person is competent to report observable symptomatology of an injury or illness, but they are not competent to render expert opinions or diagnoses of complex medical conditions. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). However, the Board can find the lay statements competent and sufficient to establish a condition that existed prior to a formal diagnosis if the lay statements describe the symptoms that are supported by a medical professional who, as here, later diagnoses a disability. See Davidson v. Shinseki, 581 F.3d at 1316 (Fed. Cir. 2007); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, the evidence of record includes a private medical opinion concerning the origin of the Veteran’s skin condition of the groin region. See April 2019, Private Medical Report. The Board places great weight on this medical opinion as it is provided by the Veteran’s treating dermatologist, who opined that it is most likely that the Veteran’s skin condition of the groin area is related to his military service. Id. The Veteran’s private physician goes on to provide a clear rationale which addresses that the Dioxins used in herbicides, to which the Veteran was presumptively exposed to, can cause dermatitis and other skin conditions such as those that the Veteran has been diagnosed with. Id. Accordingly, the Board finds that the most probative evidence of record, including the Veteran’s lay statements, service treatment records, and private medical reports, establish that the Veteran’s current skin disability of the groin area is as a result of his active duty service. Therefore, service connection for a skin condition of the groin area, variously diagnosed as dermatitis, vitiligo, and lichen simplex chronicus, is warranted. 38 C.F.R. § 3.102. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Sutherell, Associate 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.