Citation Nr: 20008105 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 18-39 905 DATE: January 30, 2020 ORDER New and material evidence not having been received, the reopening of service connection for a respiratory disability, claimed as emphysema, to include as due to exposure to trichloroethylene, is denied. New and material evidence having been received, the reopening of service connection for a skin disability, including to the hands, feet, and the entire body, to include as due to exposure to hazardous chemicals to include trichloroethylene, is granted. FINDINGS OF FACT 1. In June 2015, the RO determined that new and material evidence had not been received to reopen service connection for a respiratory disability (previously claimed as emphysema), on the basis that no link between emphysema and service, including exposure to hazardous chemicals in service, was shown. 2. The Veteran did not enter a notice of disagreement with this decision to deny service connection for a respiratory disability, and new and material evidence was not received within one year of the decision. 3. Evidence received since the June 2015 rating decision is either duplicative or cumulative of evidence previously considered or does not relate to the previously unestablished fact of relationship between a current respiratory disability and service. 3. The June 2015 rating decision denying service connection for a skin disability, on the basis that the service treatment records showed no complaints, diagnosis, or treatment for a skin condition of the hands, and no current skin condition of the hands had been clinically diagnosed. 4. The Veteran did not enter a notice of disagreement with this decision to deny service connection for a skin disability, and new and material evidence was not received within one year of the decision. 5. Evidence received since the June 2015 rating decision relates to the previously unestablished fact of a current skin disability. CONCLUSIONS OF LAW 1. The June 2015 rating decision determining that new and material evidence had not been received to reopen service connection for a respiratory disability, claimed as emphysema, became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has not been received to reopen service connection for a respiratory disability, claimed as emphysema, to include as due to exposure to trichloroethylene. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The June 2015 rating decision denying service connection for a skin disability of the hands due to exposure to hazardous chemicals became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 4. New and material evidence has been received to reopen service connection for a skin disability, including the hands, feet, and the entire body, due to exposure to hazardous chemicals, to include trichloroethylene. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service in the U.S. Air Force from May 1966 to July 1973. This matter is on appeal from September a 2017 rating decision. New and Material Evidence Legal Authority Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c), (d)(3); 38 C.F.R. § 20.1103. If "new and material" evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). "[N]ew evidence" means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial. 38 C.F.R. § 3.156(a). Materiality has two components, first, that the new evidence pertains to the reason(s) for the prior final denial, and second, that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When making a determination whether the submitted evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying concepts derived from the duty to assist. Shade, 24 Vet. App. at 118. 1. Reopening Analysis for Service Connection for a Respiratory Disability In June 2015, the RO determined that new and material evidence had not been received to reopen service connection for a respiratory disability (previously claimed as emphysema), on the basis that the evidence submitted in connection with the application did not show a link between emphysema and service, including exposure to hazardous chemicals in service. The RO referenced the prior VA medical opinion that it was less likely that emphysema was a result of exposure to cleaning solutions and was more likely a result of the Veteran’s tobacco history. In June 2015, the Veteran was notified of that rating decision and was provided notice of procedural and appellate rights. Because the Veteran did not appeal the June 2015 rating decision within one year of that notice, and no additional evidence was received within one year of that notice, the June 2015 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. After reviewing the evidence received since the June 2015 rating decision, the Board finds that the additional evidence does not qualify as new and material evidence to reopen service connection for a respiratory disability. The evidence added to the record since the June 2015 rating decision shows treatment for chronic obstructive lung disease and continuous tobacco dependence, which is duplicative of evidence of record at the time of the June 2015 rating decision. Other than the Veteran's own duplicative statements, none of the evidence added to the record suggests a link between the current respiratory disability and service. Because the evidence received since the June 2015 rating decision is either duplicative or cumulative of evidence previously considered or does not relate to the previously unestablished fact of the current respiratory disability causally or etiologically related to service, the Board finds that the evidence received since the June 2015 rating decision does not relate to a previously unestablished fact of nexus to service that is necessary to substantiate the claim, so does not raise a reasonable possibility of substantiating the claim. For these reasons, the Board finds that new and material evidence has not been received to reopen service connection for a respiratory disability, claimed as emphysema. See 38 C.F.R. § 3.156 (a). 2. Reopening Analysis for Service Connection for a Skin Disability In June 2015, the RO denied service connection for a skin disability, on the basis that the service treatment records showed no complaints, diagnosis, or treatment for a skin condition of the hands, and no current skin condition of the hands had been clinically diagnosed. In June 2015, the Veteran was notified of that rating decision and provided notice of procedural and appellate rights. Because the Veteran did not appeal the June 2015 rating decision within one year of that notice, and no additional evidence was received within one year of that notice, the June 2015 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. After reviewing the evidence received since the June 2015 rating decision, the Board finds that the additional evidence qualifies as new and material evidence to reopen service connection for a skin disability. The evidence added to the record since the June 2015 rating decision shows treatment for skin tags, eczematous dermatitis on the right elbow, and likely callouses on the palms. There was no evidence of a current skin disability at the time of the June 2015 denial. The evidence of a current skin disability is new to the record, addresses the grounds of the prior denial, and is presumed credible for the limited purpose of reopening the claim, so it raises a reasonable possibility of substantiating the claim. For these reasons, the Board finds that new and material evidence has been received to reopen service connection for a skin disability, including the hands, feet, and body. See 38 C.F.R. § 3.156(a). REMANDED Service connection for a skin disability, including the hands, feet, and entire body, to include as due to exposure to hazardous chemicals, to include trichloroethylene, is remanded. REASONS FOR REMAND 3. Service Connection for a Skin Disability The reopened issue of service connection for a skin disability is remanded for a VA examination with a medical opinion. The service treatment records include diagnoses of various skin or skin-related problems (in addition to pseudofolliculitis and plantar callouses for which service connection is already established) such as phlebitis, a thrombosed vein, and contact dermatitis. The Veteran has competently reported skin problems during service and since service, and VA treatment records reflect current diagnoses of skin tags, eczematous dermatitis on the right elbow, and likely callouses on the palms. A VA examination with a medical opinion would help decide whether the current skin diagnoses are related to service. The matters are REMANDED for the following actions: 1. Schedule an examination to help determine the nature and etiology of any current skin disability. The examiner should opine whether any current skin disability is at least as likely as not related to service, to include phlebitis, a thrombosed vein, and contact dermatitis, or exposure to trichloroethylene during service. 2. Thereafter, readjudicate the appeal. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ferguson 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.