Citation Nr: 20005502 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 19-19 959 DATE: January 23, 2020 ORDER New and material evidence has been submitted to reopen the issue of service connection for a skin disorder. The claim to reopen service connection for a skin disorder is granted. REMANDED Service connection for a skin disorder is remanded. FINDINGS OF FACT 1. In a rating decision issued in May 1994, the RO denied the Veteran’s claim to entitlement to the issue of service connection for a skin disorder; the Veteran did not file a notice of disagreement; therefore, the denial became final. 2. In rating decisions issued in September 2000 and October 2008, the RO denied the Veteran’s claim to reopen the issue of service connection for a skin disorder; the Veteran did not file a notice of disagreement in response to either denial; therefore, the denials became final. 3. In a rating decision issued in August 2010, the RO reopened the issue of service connection for a skin disorder but denied the claim on the merits. The Veteran did not file a notice of disagreement; therefore, the denial became final. 4. Evidence received since August 2010 relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a skin disorder and raises a reasonable possibility of substantiating that underlying claim. CONCLUSIONS OF LAW 1. The May 1994, September 2000, October 2008 and August 2010 rating decisions are final. 38 U.S.C. §§ 5103, 5103A, 7105(c); 38 C.F.R. § §§ 3.104 (a), 20.302(a), 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a skin disorder. 38 U.S.C. §§ 5103, 5103A, 5107, 5108, 7105; 38 C.F.R. § § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1956 until July 1960. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2018 decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a hearing before the undersigned. A transcript of the proceeding is of record. 1. New and material evidence has been submitted to reopen the issue of service connection for a skin disorder. In a May 1994 rating decision, the RO denied the claim for service connection for a skin disorder because the there was no nexus between the Veteran’s skin disorder and his military service. The Veteran did not appeal; therefore, the decision became final. Generally, a previously denied claim cannot be reopened after a final denial unless there is new and material evidence submitted. New evidence means existing evidence not previously submitted to agency decision-makers. 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. After the original denial, in September 2000 and October 2008 rating decisions, the RO denied the petition to reopen the claim for service connection for a skin disorder because the Veteran did not provide new and material evidence, which would allow him to reopen his claim. In an August 2010 rating decision, the RO reopened the claim for service connection for a skin disorder but denied the claim on the merits because the RO found that there was no link between his skin disorder and service. The Veteran did not appeal these rating decisions. Therefore, these denials became final. 38 U.S.C. § 7105; 38 C.F.R. § 38 C.F.R. § §§ 3.104, 20.200, 20.302, 20.1103. VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. The relevant evidence of record at the time of the prior rating decisions included the Veteran’s statements, VA treatment records and a VA examination, service treatment records and military personnel records. The relevant evidence received since the August 2010 denial consists of the Veteran’s statement that the symptoms of his current skin disorder are the same as when he had the skin disorder during his military service but that the rash is on different parts of his body. The Veteran’s statements about his skin disorder are new and raises a reasonable possibility of substantiating the claim for service connection for a skin disorder. See McCartt v. West, 12 Vet. App. 164, 167-68 (1999) (veteran alleged skin disorder of boils, blotches, rash, soreness, and itching since service; Court implied that this may be the type of condition lending itself to lay observation and satisfy the nexus requirement, even though still seemed to require medical nexus). Accordingly, the claim for service connection for a skin disorder is reopened. As will be discussed in more detail below, additional development is required prior to adjudicating the merits of the underlying service connection claim. REASONS FOR REMAND 1. Service connection for a skin disorder is remanded. The Veteran contends that his skin disorder is related to his military service. See hearing transcript. Service treatment records reflect that the Veteran was diagnosed with a patch of fungus on right inner aspect of ankle. See June 1960 discharge examination. VA treatment records reflect that the Veteran is currently diagnosed with multiple skin disorders – generalized pruritus, stasis dermatitis, post-inflammatory hyperpigmentation and lichen planus. See September 2018 VA treatment records. The Veteran reported that the symptoms of his skin disorder that he currently manifests are the same symptoms of his skin condition that he had during military service. VA has a duty to provide a medical examination when it is deemed necessary to make a decision on a claim if the evidence (including lay statements of the Veteran) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of the disability; if the evidence indicates that his disability or symptoms may be associated with the Veteran’s service; and there is not sufficient medical evidence for VA to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). These requirements have been met in this case. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of the Veteran’s skin disorder. The examiner is asked to review the file, and provide an opinion to the following question: Whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s skin disorder had its onset in service or is related to military service. Please review the service treatment records reflecting that the Veteran complained of and was diagnosed with a skin condition during service and his report that the symptoms he had during service are the same symptoms that he now experiences. Attention is invited to: VBMS, document labeled STR-Medical, receipt date 10/13/1966, pages 11, 12 and 22 out of 28 pages; VBMS, document labeled Hearing Transcript, receipt date 09/30/2019, page 7 out of 9 (reporting that his current symptoms are the same as when he was in service). The Veteran’s lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the current disorder and military service. The examiner is asked to provide the underlying reasons for any conclusions reached. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lee, 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.