Citation Nr: 20005545 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 19-22 259A DATE: January 23, 2020 ORDER New and material evidence has been received to reopen the claim for service connection for stomach rash (also claimed as nummular dermatitis as a result of agent orange exposure); to this extent only, the appeal is granted. FINDINGS OF FACT 1. The June 2015 rating decision that denied service connection for stomach rash (also claimed as nummular dermatitis as a result of agent orange exposure) became final when the Veteran did not file a timely substantive appeal nor submit new evidence within one year from the date of issuance of the rating decision. 2. In October 2017, the Veteran submitted VA 21-526EZ, Fully Developed Claim (Compensation), which, when liberally read, amounted to a request to reopen his claim for service connection for stomach rash (also claimed as nummular dermatitis as a result of agent orange exposure). 3. New and material evidence was received in December 2017 and September 2017, in the form of lay evidence which was new, because it had not been previously associated with the file, and material, because it is lay evidence of in- service occurrence. CONCLUSION OF LAW The criteria for reopening the claim for service connection for stomach rash on the basis of new and material evidence have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (eff. Feb. 19, 2019). REMANDED Entitlement to service connection for stomach rash (also claimed as nummular dermatitis as a result of agent orange exposure) is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with U.S. Air Force from January 1962 to January 1966 during the Vietnam Era. The Veteran also served in the US Reserves. This matter comes before the Board of Veterans’ Appeal (Board) on appeal from a November 2017 rating decision, which denied service connection for stomach rash also claimed as nummular dermatitis as a result of Agent Orange exposure. New and material evidence being found, the claim for service connection for stomach rash is reopened. Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA's duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. The Veteran initially filed his claim informally, through correspondence received in January 2013. A November 2013 rating decision denied his claim, and the Veteran filed a timely Notice of Disagreement in September 2014. A Statement of the Case (SOC) was sent on June 29, 2015 that continued the denial for service connection for stomach rash. The Veteran did not submit a timely substantive appeal and the decision became final. The current appeal began when the Veteran submitted a VA 21-526EZ, Fully Developed Claim (Compensation) in October 2017. Since at that time his decision was final, he needed to submit new and material evidence to reopen the claim. The Board finds that the Veteran submitted new and material evidence to reopen his claim in the form of lay evidence received in December 2017 of the Veteran being stationed overseas in Thailand and Correspondence received in September 2017 that acknowledges that some veterans were exposed to herbicides when they were stationed on or near the perimeters of Thailand Military Bases. See Military Personnel Record received 12/07/2017 at pages 4-6; see also Correspondence received 9/22/2017. This evidence is new because it was not previously associated with the file, and material because it tends, though slightly, to support the Veteran’s contention of herbicide exposure, a basis of his previous denial. Further, the Board finds that the evidence triggers the VA’s duty to assist. REASONS FOR REMAND Service connection for stomach rash (also claimed as nummular dermatitis as a result of agent orange exposure) is remanded. VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent lay or medical evidence of (1) a current diagnosed disability or persistent or recurrent symptoms of disability; (2) evidence establishing that the veteran suffered an event, injury or disease in-service; and (3) an indication that the claimed disability or symptoms may be associated with the established event, injury, or disease in-service or with another service-connected disability; and (4)insufficient competent medical evidence for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006); see also 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The threshold for finding a link between current disability and service is low. McLendon, 20 Vet. App. at 83. The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. Id. The Veteran is competent to report his observable symptoms and history, including the onset and timing of symptoms, and such reports must be considered. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds that the evidence of record triggers the VA’s duty to provide the Veteran with an examination. First, the Board finds that the Veteran’s submission of a current treatment record from Dr. S.O. shows that he has a current disability. Further, although the Veteran was being treated for basal cell carcinoma and initially submitted a claim for skin rash, a sympathetic reading of the Veteran’s claim supports that he intended to file a claim for service connection for a skin condition due to herbicide exposure. See Thompson v. Shinseki, 24 Vet. App. 176, 177 (U.S. 2010) (holding that VA is required to give a sympathetic reading to veteran's filings by determining all potential claims raised by the evidence, applying all relevant laws and regulations). As stated previously, the Veteran through his submission of his military personnel records and his lay statements has submitted evidence, though requiring further development, of possible exposure to herbicides. Lastly, the Veteran’s submitted articles that attribute skin conditions to exposure to fuels and his MOS was fuel specialist, meets the low threshold of finding a link between service and current disability under McLendon. Since the Veteran was not provided an examination to determine the etiology of his skin condition, there is insufficient medical evidence to decide his claim. Accordingly, the claim is remanded for a VA examination and for further development by the Agency of Original Jurisdiction (AOJ). This matter is REMANDED for the following actions: 1. Send a request to the JSRRC for verification of the Veteran's exposure to herbicides, as appropriate, following all appropriate procedures. In doing so, ask the JSRRC to take note of, and comment upon, information the Veteran submitted to include his Military Personnel Records that show his involvement in “Chrome Dome” – see 12/07/2017 Military Personnel Record. 2. Obtain updated VA and private treatment records, and associate them with the claim file. If any records are not available, document the file requests and responses and inform the Veteran of any inability to obtain records. 3. After completing directive #1 and #2, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed skin condition. The examiner should review the virtual file, including a copy of this Remand. The examiner should address the following: (a.) Identify all skin disorders that are currently present (or present any time from to present). If the examiner disagrees with a diagnosis already established in the medical records, he/she should so state and explain why. (b.) Finally, if and only if the JSRRC finds evidence to support a determination that it was as likely as not the Veteran was exposed to either a tactical or commercial herbicide during active service, the examiner is to provide an opinion whether it is at least as likely as not the Veteran's skin condition is related to this herbicide agent exposure. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Dixon, 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.